ML15167A349
| ML15167A349 | |
| Person / Time | |
|---|---|
| Issue date: | 05/09/2016 |
| From: | Richard Chang Division of Decommissioning, Uranium Recovery and Waste Programs |
| To: | |
| Chang R | |
| Shared Package | |
| ML15167A324 | List:
|
| References | |
| RIS-2016-06 | |
| Download: ML15167A349 (12) | |
See also: RIS 2016-06
Text
Enclosure
Page 1 of 12
Comment Response to Draft Regulatory Issue Summary Dated July 8, 2011
This enclosure provides a summary of public comments on the draft Regulatory Issue Summary
(RIS) and the U.S Nuclear Regulatory Commission (NRC) responses. Table 1 provides a list of
the public comments and access to them using their accession numbers in the NRCs
Agencywide Documents Access and Management System (ADAMS).
U.S. Department of Defense Comments
The U.S. Department of Defense (DoD) provided several comments on the draft RIS. The
areas of DoD concern were:
- remediation
- legal issues
- licensing
- operational firing ranges
- items and equipment
- implementation
DoDs primary concern was that it opposed the licensing approach to DoD radium
contamination remediation that the NRC presented in the draft RIS.
It should be noted that the NRC and DoD established a joint working group to discuss resolution
of DoDs comments. The working group consisted of NRC technical and legal staff and
environmental restoration program managers and legal staff from the Office of the Under
Secretary of Defense, U.S. Department of the Air Force, U.S. Department of the Army, and
U.S. Department of the Navy. The group conducted seven formal interactions between
February 2012 and July 2013 and numerous informal discussions for planning, coordination,
and clarification purposes. The working group also discussed additional issues that were
related to DoDs comments on the RIS, including remediation of unlicensed AEA byproduct,
source, and special nuclear material using the CERCLA process. DoD stated, in its
August 1, 2013, letter (available in ADAMS at Accession No. ML13277A566), that the
development of a Memorandum of Understanding (MOU) would address its concerns regarding
the draft RIS, including the risk of dual regulation and adverse cost and schedule impacts under
a licensing approach. The additional issues that the working group discussed are described on
pages 4-5 of Enclosure 3 to SECY-14-0082 (ML14098A356). These issues that DoD raised
during the working group interactions but did not specifically provide on the draft RIS are not
discussed further in this comment and response document. Ultimately, the NRC and DoD
agreed to negotiate an MOU that would govern NRCs involvement in DoDs remediation rather
than the licensing approach. The NRC staff believes that the MOU approach substantially
reduces unnecessary dual regulation and the potential for cost and schedule impacts raised by
DoD in its comments on the RIS.
Enclosure
Page 2 of 12
1. Remediation of radium contamination and licensing
Comment: The DoD commented that it is statutorily required by the Defense
Environmental Restoration Program (DERP) to remediate using the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) process for sites
either listed or not listed on the National Priority List (NPL). The DoD opposed the
licensing approach in the draft RIS and cited as a basis for this opposition the permit
exemption under Section 121(e)(1) of CERCLA. DoD also raised concerns about the
potential for NRC licensing to impact the cost and schedule of its remediation and
agreements for the transfer of property under the base realignment and closure (BRAC)
process.
Response: The NRC recognizes the overlap of the NRCs regulatory requirements for
radioactive materials decommissioning and the DERP and CERCLA cleanup
requirements. The NRC understands that DoD is statutorily required under DERP to
remediate its properties using the CERCLA process, and that radioactive materials are
defined as hazardous substances under CERCLA. DoD acknowledged that, under the
AEA, the NRC has regulatory authority over certain radioactive material. Therefore, the
NRC and DoD discussed the need for a process to manage this overlap in statutory
and regulatory requirements. The NRC noted that it has encountered this overlap
before and has often established MOUs to define a process to coordinate and
cooperate. The NRC and DoD entered into an MOU governing the roles,
responsibilities, and relationship between DoD and the NRC regarding CERCLA
environmental response actions at DoD sites containing AEA byproduct, source, and
special nuclear material. This MOU minimizes the potential for dual regulation and
duplicative regulatory requirements. The NRC believes that this MOU, as opposed to
the licensing approach that the NRC proposed in the draft RIS, also addresses DoDs
concerns about impacts on the cost and schedule of its remediation and agreements for
transfer of property under the BRAC process.
With regards to DoDs position on the permit exemption, as stated in the MOU, the NRC
maintains its position that the permit exemption is only applicable to the specific portion
of any removal or remedial action, as these terms are defined in CERCLA, conducted
entirely onsite and that Section 121(e)(1) does not waive the AEA licensing requirement.
Although the NRC and DoD do not agree on this issue, they agreed to the MOU
approach rather than NRC licensing for environmental response actions at DoD sites
containing AEA radioactive material.
2. Radium on firing ranges
Comment: DoD stated that training and testing on operational military ranges are
military operations and should continue to be clearly excluded from the scope of the
NRC jurisdiction over radium. The DoD also commented that NRC involvement on
operational ranges could conflict with the DoDs training mission.
Enclosure
Page 3 of 12
Response: In the RIS, the NRC clarifies that the radium contamination on operational
firing ranges is not subject to the NRC regulation because radium is used in traditional
military operations on these firing ranges, e.g., the use of targets that contain radium.
As stated in the statements of consideration (SOC) for the NARM rule, NRCs jurisdiction
does not include military use of radium in training for battlefield missions (72 FR
55901). As discussed in SECY-14-0082, NRC staff has concluded that doses will be low
for targets on firing ranges. The NRC recognizes that the DoDs controls of operational
ranges for unexploded ordnance will limit the likelihood of an exposure to radium.
Furthermore, NRC conducted independent dose estimates for targets on firing ranges.
The results for typical radium items on targets (approximately in the range of ~0.01 to
10 millirem (mrem)), agree with the DoDs comment that the dose consequence will be
low if there were an exposure. These results are well below NRCs public dose limit in
10 CFR 20.1301, of 100 mrem per year. Specifically, NRC staff calculated doses to both
workers and members of the public using IAEA Code of Conduct calculations. These
calculations assumed a range of typical radium items on targets and that DoD controls
would fail and allow access to the firing range.
For closed firing ranges, the DoD noted that the CERCLA process will be used for
remediation. Therefore, as stated in the MOU, the NRC will be involved with the DoDs
remediation of closed firing ranges.
3. Radium items and equipment with no future military operational use
Comment: DoD stated that the procedural costs of the NRC licensing could be over
$20 million because, without an Army Master Materials License (MML), the Army would
need to obtain nearly 100 different licenses for radium.
Response: In discussions with the NRC staff on this comment area, the Army explained
that, after further assessment of the inventory, it had found that most of its items were
already disposed of, and those remaining are scheduled for disposal. Additional radium
items and equipment have also been added to Army museum licenses. The Army
controls the number of museum items below the 100 items limit allowed under the NRC
general license for museums. Therefore, DoD concluded that its comment on the draft
RIS is no longer an issue. The NRC also confirmed that the Air Force and Navy radium
items and equipment in storage or used for calibration or research and development are
currently covered by permits issued pursuant to the Air Force and Navy MMLs.
4. Clarification of the NRCs jurisdiction for military radium and other legal comments
Comment: The DoD commented that the draft RIS is not consistent with the Energy
Policy Act of 2005 (EPAct) statutory requirement and is a significant change to the
NRCs interpretation in the SOC for the 2007 NARM Rule for regulatory authority over
military operational radium.
Enclosure
Page 4 of 12
Response: The NRC disagrees with the comment. The draft RIS is consistent with the
regulatory framework established by the NRC in the NARM Rule. In the SOC for the
NARM rule, the NRC acknowledged that Section 651(e)(3) of the EPAct did provide the
NRC with regulatory authority over some but not all military uses of radium. The NRC
stated that the exclusion from the coverage of the EPAct only applies to a certain type
of military use, i.e., NARM used for military operation (72 FR 55867). The draft RIS
and final RIS preserve the distinction between military operational uses and other uses
of radium by merely clarifying that radium that is used in military operations or is
intended for future use in military operations is not subject to the NRCs jurisdiction.
Far from amending the scope of the NRCs jurisdiction over military radium, the RIS
preserves the distinction by clarifying the exceptions alluded to in the NARM Rule.
Specifically, the NARM Rule affirmed that if [radium-226] is intended for use in military
operation, it is excluded from coverage of this rule The RIS merely clarifies the
converse, which is if radium in the militarys possession is not intended for use in or
used in military operations, then it is subject to NRC regulations. The RIS also clarifies
what is meant by material in storage or that may be subject to decontamination and
disposal. To be excluded from the NRCs regulatory authority, the radium in the
militarys control will have to be used, or intended for future use, in military operations.
Items and equipment in storage that are not being used and which are not intended for
future use are subject to the NRCs regulations. The RIS does not change the NRCs
previously adopted regulatory framework. While NRC and DoD disagree on this point,
the DoD has stated in their August 1, 2013, letter, that an MOU approach would address
their concerns with the draft RIS.
Comment: For a number of reasons, DoD stated that NRCs proposed jurisdiction over
radium-226 is not retroactive and does not include radium-226 contamination. Radium
contamination has resulted from the militarys use, possession, or disposal of
radium-226 approximately 40 years ago and prior to the 2005 EPAct and the effective
date of NRCs NARM Rule in 2007. DoD also stated that, typically, NRCs regulations
are only applied prospectively and references a 2000 NRC Directors decision that
considered the retroactivity of Title II of the Uranium Mill Tailings Reclamation Control
Act of 1978, as amended (UMTRCA). Finally, the military appears to be treated
differently from private parties. DoD claimed that NRC is not seeking jurisdiction over
ongoing or future private party cleanups involving historic disposals of radium or
municipal landfills that likely contain radium.
Response: The NRC disagrees with DoDs comments regarding retroactive jurisdiction.
Section 651(e)(3) of the EPAct amended the definition of byproduct material to include
any discrete source of radium-226 that is produced, extracted, or converted after
extraction before, on, or after August 8, 2005 (emphasis added). Thus, Congress
expressly provided the NRC with authority over radium-226 that was produced,
extracted, or converted at any time. As the NRC affirmed in the NARM Rule, it has
jurisdiction over old landfills or disposal sites contaminated with radium-226 due to past
operations or disposal of discrete sources of radium-226 (72 FR 55886; October 1,
2007).
Enclosure
Page 5 of 12
The NRC also disagrees with DoDs comment that it is treating private radium
contamination differently than the military radium contamination. The NRCs NARM
Rule SOC states that [if] contamination is discovered at a non-licensed persons facility,
such as contaminated buildings or grounds, the NRC will work with the facility owner to
perform decommissioning of the site. If the site presents a significant threat to the public
health and safety, the NRC may order the owner to obtain a license and to perform
decommissioning of the site (72 FR at 55902, October 1, 2007). Therefore, discovering
contamination at a non-licensed facility is equivalent to identifying contamination at a
military facility, such as during CERCLA investigations of old military landfills. The NRC
has the flexibility to either license a discovered facility with radium contamination or work
with the owner to remediate the site. Thus, the NRC is treating private and military
historic sites in a similar manner. It should also be noted that, in parallel with the
development of a process for regulating military radium, the NRC staff is developing a
process for dealing with non-military sites found to contain radium contamination, such
as at Great Kills Park located on Staten Island, New York.
Comment: DoD stated that the NRC is proposing to change its statutory interpretation
of the EPAct through a non-regulatory process that appears to be inconsistent with
Congresss requirement that the NRC issue final regulations necessary to carry out
§ 651(4) of the EPAct and that may be inconsistent with the Administrative Procedures
Act (APA).
Response: The NRC disagrees with the comment. The NARM Rule that the NRC
issued pursuant to the EPAct satisfies Congresss requirement that the NRC issue final
regulations effectuating Section 651(4) of the EPAct. The RIS does not in any way
negate or modify these regulations. As is discussed above, the intent of the document is
to clarify a point of confusion regarding the NRCs stated policy in the NARM rule that
military operational material is not subject to NRC jurisdiction, and this includes
material still under the control of the military, i.e., in storage, or that may be subject to
decontamination or disposal, if it is intended for future military operational use. The RIS
merely clarifies this issue, and the RIS was provided through notice and comment, thus
the requirements of the APA have been satisfied.
5. Implementation
Comment: DoD identified several concerns with the proposed licensing approach for
implementing NRCs jurisdiction over radium. DoD stated that these concerns should be
addressed prior to NRC finalizing any policy and recommended developing interagency
guidance instead of the implementation plan proposed in the draft RIS. Other
implementation comments centered on how the proposed licensing approach would
affect the Agreement States, the Air Force and Navy MMLs, the Army without an MML,
the Memorandum of Understanding between NRC and EPA, and the existing
decontamination processes.
Enclosure
Page 6 of 12
Response: The NRC entered into an MOU to govern its involvement in DoDs
remediation of AEA byproduct, source, and special nuclear material rather than move
forward with the licensing approach described in the draft RIS. Additionally, DoD stated
in its August 1, 2013, letter that the MOU between the agencies would address the
concerns regarding the draft RIS and establish a cooperative NRC and DoD process.
Therefore, the NRC believes that the MOU approach resolves this comment. With
respect to implementation, the MOU describes the implementation process. Specifically,
the MOU describes the following elements of implementation: points of contact; annual
inventory of sites; coordination and planning; access to sites and information; dose
criteria; NRC involvement activities; documentation and records; management of
restricted records; DoD requests for NRC technical advice; and a dispute resolution
processes. As discussed in the final RIS, the specifics of an implementation plan for
NRCs involvement at DoD sites are given in the MOU provisions but will be jointly
refined based on future experience, if necessary. The staff and DoD have discussed the
potential for clarifications of the MOU in the future based on joint experience using the
MOU at a number of sites, as well as the NRC staffs periodic effectiveness evaluation.
Other implementation comments related to the effects of the licensing approach also are
no longer relevant because the MOU approach does not involve the MMLs, unless there
is a specific request for license suspension, as indicated in the MOU. Furthermore, the
MOU approach is an agreement between the NRC and DoD. Thus, it does not apply to
the Agreement States, does not typically involve the MMLs, and does not apply to the
NRC EPA MOU for cleanup of NRC licensed sites.
Comment Areas From Other Commenters
6. NRC involvement with military remediation under CERCLA
Comment: Californias Department of Public Health (CDPH) supported NRCs goal of
providing adequate protection of public health and safety through independent NRC
oversight at federal sites. CDPH stated that coordination of the CERCLA remediation
process with NRC decommissioning requirements will better protect public health and
the environment.
Comment: Californias Department of Toxic Substances Control (DTSC) requested that
NRC broaden the scope of NRCs regulatory jurisdiction to include, on a case-by-case
basis, suspected military radium-226 contamination in landfills for which the military has
agreed, or been ordered, to remediate pursuant to CERCLA or state hazardous
substance cleanup laws.
Comment: The Concerned California Agreement State Licensees,1 who remained
anonymous, encouraged the NRC to fully exercise its jurisdiction at former DoD sites in
California and expressed concern about NRCs lack of regulatory action at the DoD sites
1
This organization is not a recognized affiliate of the Organization of Agreement States or the
Government of the State of California.
Enclosure
Page 7 of 12
in California. This commenter, noting their concern about the Navys remediation
practices at Former Naval Station Treasure Island, argued for more NRC involvement,
not less. Other anonymous commenters, demonstrating detailed knowledge of the
ongoing military remediation work in California, also commented that the proposed
clarification in the draft RIS does not go far enough. These commenters stated that
instead of assuming a backseat role at sites under CERCLA process, the NRC should
be more involved.
Comment: EPA Region 9 comments indicated that the NRC licensing approach
proposed in the draft RIS may potentially complicate decision-making by the military and
delay cleanup at BRAC bases with little observable benefit for the environment or the
surrounding community seeking to reuse the closing facility. EPA Region 9 also
commented that, absent clarification, the licensing approach advocated by the NRC in
the draft RIS creates the dual regulation that NRC seeks to avoid.
Response: The NRC notes the CDPH support for NRC independent oversight. The
MOU approach will provide for NRC oversight by monitoring the DoD remediation at
those sites where EPA is not providing regulatory oversight (e.g. non-NPL sites). The
MOU also allows the NRC to stay informed of the remediation of sites where EPA is
conducting regulatory oversight. The NRC recognizes that some commenters stated
that the NRC is taking a backseat role at sites under CERCLA, and more NRC
involvement is needed. However, DoDs remediation of radioactive material at sites
under the CERCLA process represents an example of overlapping jurisdiction with the
NRCs regulatory authority under the AEA and the NRCs decommissioning process.
The NRCs policy of relying on the CERCLA process and EPAs regulatory oversight
facilitates remediation that is protective of public health and safety and avoids
unnecessary dual regulation. The NRC staff has used this approach over the
past eight years for the Navys Hunters Point Shipyard (San Francisco, CA) and
Alameda Naval Air Station (Alameda, CA) sites and the Air Forces McClellan Air Force
Base site (Sacramento, CA), and it believes that it has been effective.
The MOU approach resolves the EPA Region 9 comment that the licensing approach
proposed in the draft RIS could complicate the ongoing remediation process. The MOU
avoids the militarys use of two separate remediation processes and preparation of two
separate sets of documents, which would lead to dual regulation. The NRCs
involvement during DoD remediation is also intended to avoid an NRC action to reopen
completed DoD remediation activities after transfer of property to a non-military owner.
Such reopening and additional remediation is a form of unnecessary dual regulation
that the MOU is designed to avoid.
7. Concerns about ongoing military remediation practices
Comment: One anonymous commenter and the Concerned California Agreement State
Licensees expressed concern that the military is avoiding NRC regulation, Navys
Radiological Affairs Support Office (RASO) reviews under the Navy MML, and NRCs
Enclosure
Page 8 of 12
more stringent restricted release process. Another commenter states the Navy is
engaged in unsafe remediation practices at its Treasure Island site.
Response: DoD has agreed to NRCs involvement under the MOU approach. NRC will
determine its level of involvement at each site, including staying informed or monitoring
as described in the RIS. Monitoring oversight is intended to ensure that the outcome of
DoDs remediation will be protective. The purpose of NRC monitoring is to ensure that
DoDs remedy at sites covered by this MOU meets the NRC 25 millirem per year dose
criterion in 10 CFR 20.1402 for sites that will be released for unrestricted use or is
consistent with the requirements in 10 CFR 20.1403(b) for sites that will be released for
restricted use. Disputes will be addressed through discussions between senior
management representatives at NRC and DoD, but if disputes cannot be resolved NRC
could provide a letter of safety concern to DoD, EPA, state officials, and future owners or
take a regulatory action.
Finally, the NRC has referred the concerns in one comment about the Navys unsafe
remediation practices at Treasure Island to the Navy Inspector General for appropriate
action.
8. Restricted release sites with buried radium
Comment: Many commenters provided comments concerning military sites with
planned land use restrictions and engineered barriers such as caps. Specifically, one
commenter suggests that NRC should regulate restricted release sites with burials and
that DoD is avoiding NRCs more stringent decommissioning requirements for restricted
release. Another commenter asked how the proposed changes to regulation of radium
at military sites will impact the planned burials of soil contaminated with radium and
other radionuclides at the former McClellan Air Force Base. This commenter also asked
if the proposed waste burials will be licensed and asked whether the Air Force
Radioisotope Committee will be authorized to permit such a site under the existing NRC
MML. Another commenter made a similar comment regarding the capping of landfills at
the Navys Hunters Point site and asked NRC to explain its involvement with the recent
capping in place at sites IR 7 and 18. One commenter asked that information be added
to the RIS describing the restricted release process provided under NRC regulations and
how they apply to military sites with capping buried radium in landfills. This commenter
suggested that the NRC should not defer to the less restrictive CERCLA process
because of the long half-life of radium. One commenter also stated that NRC and EPA
should declare a moratorium on any record of decision or release of sites containing
radioactive materials that have been buried or capped in place where previously buried.
Response: The NRC has not licensed, and does not plan to license, the DoD restricted
release sites at McClellan, Alameda, or Hunters Point. Instead, the Commission
decided in 2008 on the policy of relying on DoD remediation under the CERCLA process
and EPAs regulatory oversight at Hunters Point and McClellan, while staying informed
about the ongoing remediation activities (SRM-SECY-08-0077). The NRC also applied
this policy to the similar circumstances at the Navys Alameda site. This policy was
Enclosure
Page 9 of 12
intended to avoid unnecessary duplicative regulation. Thus, for the past eight years, the
NRC has been staying informed about DoDs ongoing remediation activities under the
CERCLA process, including restricted release sites with burials located on the Navys
Alameda and Hunters Point sites and the Air Forces McClellan site. The NRC stays
informed about these burial sites primarily through its annual site visits and meetings
with the Air Force, Navy, EPA Region 9, the State of California, and local governments
involved with these remediation activities. This includes maintaining awareness of the
various issues and the progress for their resolution, including those at the Hunters Point
site IR 7 and 18. Based on these interactions and an understanding of the remedies
identified or being planned, the NRC will continue to rely on the ongoing CERCLA
process and EPA oversight at these sites, especially the future 5-year reviews, to
evaluate the effectiveness of remedies after closure. This same approach will continue
under the MOU between the NRC and DoD and is described in the RIS. Therefore, the
NRCs involvement under the RIS and MOU will not impact planned burials at McClellan,
Hunters Point, or Alameda.
The NRC does not have authority to declare a moratorium on any record of decision or
release of a site under the CERCLA process, as one commenter recommended.
However, at sites that are not subject to EPAs CERCLA oversight, the NRC will monitor
DoDs remedial actions per the terms of the MOU. The NRC will ensure that these
monitored sites meet the 25 mrem/yr dose criterion in 10 CFR 20.1402 for sites released
for unrestricted use, or the requirements in 10 CFR 20.1403(b) for sites that will be
released for restricted use. As part of its monitoring efforts, the NRC would also review
five-year review reports required by Section 121 of CERCLA. These five-year reviews
provide an opportunity to evaluate the implementation and performance of a remedy to
determine whether it remains protective of human health and the environment. NRCs
approach is protective of public health and safety, avoids duplicative regulation, and
allows for independent Federal oversight.
9. Agreement State role and potential impacts on finality of military remediation
Comment: A number of commenters raised issues concerning the Agreement States
roles and the potential impacts of NRCs regulatory approach on the finality of DoD
remediation. EPA Region 9 commented that finality of DoD remediation cannot be
achieved unless Agreement States lack the ability to call into question or revisit remedial
actions taken under CERCLA after DoD transfers the property to a non-federal party.
Californias DTSC asked the NRC to clarify whether Agreement States are prohibited
from exercising their authority derived from Section 274 of the AEA or State law
jurisdiction over any post-remediation residual radium-226 contamination after transfer of
the site from the military to a non-Federal owner. Another commenter asked about
impacts on redevelopment due to different NRC and Agreement State regulations
because some Agreement State regulations are more stringent than NRC regulations.
Another commenter asked how the draft RIS jurisdictional clarification for radium-226 will
affect Agreement State authority granted by NRC in Approval of Agreement State
Governor Certifications (FSME-07-107, ML073230793) for military sites without
Enclosure
Page 10 of 12
exclusive federal jurisdiction. This commenter also asked how the draft RIS would affect
Agreement States desiring not to be involved with regulation of military remediation.
Response: The NRC plans to keep Agreement States informed of NRC activities with
respect to sites that the NRC monitors under the MOU. Such coordination might result
in an Agreement State deciding not to take subsequent regulatory action and reopen a
completed remediation after DoD transfers the property to a non-Federal owner. The
NRC will encourage this outcome. However, the NRC cannot prohibit Agreement States
from exercising their AEA or applicable State law jurisdiction with respect to DoDs
post-remediated sites. Therefore, the RIS does not affect Agreement States jurisdiction
pursuant to Section 274 of the AEA or any applicable State laws, and the RIS does not
affect the NRCs determinations in FSME-07-107. With respect to Agreement State
involvement in DoD remediation activities, Agreement States should determine whether
and to what degree they desire to be involved in the CERCLA process, and provide input
to the NRC.
It should be noted that in respect to NRC and Agreement State jurisdiction for DoD
contractors with either NRC or Agreement State service provider licenses, the RIS
clarifies what types of military radium are AEA byproduct material. When working with
this material, DoD contractors are required to have either an NRC or Agreement State
service provider license.
Comment: EPA Region 9, CDPH, and other commenters identified various
implementation concerns such as: 1) clarification of the coordination and crosswalk
between the CERCLA process and NRCs decommissioning process; 2) clarification of
the terms confirmed and suspected contamination; 3) clarification of NRC, Air Force,
and Navy responsibilities under the MML licenses; and 4) clarification of jurisdiction for
military contractors with an NRC or Agreement State service provider license.
Response: Most of the implementation comments were associated with the licensing
approach proposed in the draft RIS. Because the NRC has agreed to the MOU
approach instead of the licensing approach proposed in the draft RIS, the coordination of
the two processes is no longer needed. Under the MOU approach, the NRC has agreed
to oversee DoDs remediation using the CERCLA process by staying informed or
monitoring remediation activities. The NRC will not require DoD to follow the NRCs
decommissioning process. As discussed previously, the MOU approach does not
involve the MMLs, unless there is a specific request for license suspension, as indicated
in the MOU.
Regarding the comment from EPA and CDTSC on the need for clarification of the terms
confirmed and suspected, as discussed in the RIS, NRCs jurisdiction applies to
radium-226 contamination that has been confirmed based on survey data or records
documenting the actual existence of the contamination. As explained in detail in the
RIS, a wide range of data can be used to support the determination that contamination is
confirmed. Sites where contamination is only suspected, based on historical activities
Enclosure
Page 11 of 12
conducted on a military base, should be tracked and appropriately controlled by the
military. If suspected contamination is later confirmed, then this contamination is subject
to NRC jurisdiction.
As one commenter suggested, the staff has clarified the jurisdiction for military
contractors with an NRC or Agreement State service provider license. The staff has
developed supplemental guidance to its existing FSME Procedure SA-500,
Jurisdictional Determinations, to assist in the resolution of jurisdictional issues over
private service providers operating on federally owned property that may arise between
the NRC and Agreement States. An April 22, 2014, Agreement States letter
(FSME-14-039) provided this supplement to all Agreement States and the Navy. The
supplemental guidance provides a decision process for determining the appropriate
jurisdiction for military contractors that require an NRC or Agreement State license. The
first question in this decision process asks if AEA material under the NRCs authority is
involved. For military radium, the final RIS has clarified that certain types of military
radium are within the scope of the AEA definition of byproduct material and thus are
subject to the NRCs regulatory authority. Thus, if military contractors activities pertain
to military radium that is subject to NRCs regulatory authority, then their service
activities are subject to the NRCs or Agreement States regulatory authority. If military
contractors activities pertain to radium that is not subject to NRCs regulatory authority
(e.g., targets that contain radium that are used on operational firing ranges), then their
service activities are not subject to the NRCs or Agreement States regulatory authority.
The NRCs policy decision to use an MOU instead of licensing to implement its
jurisdiction over AEA byproduct, source, and special nuclear material that DoD is
remediating pursuant to the CERCLA process does not affect the NRC or Agreement
States jurisdiction over military service contractors.
Enclosure
Page 12 of 12
Table 1: List of Public Comments and Agencywide Document Access and Management
System (ADAMS) Accession Numbers
(Also, search ADAMS using the case reference no. NRC-2011-0146)
Comment number Date Author/Organization ADAMS number
Comment 1 August 5, 2011 Anonymous ML11220A262
Comment 2 August 4, 2011 Anonymous ML11224A018
Comment 3 July 31, 2011 Anonymous ML11227A266
Comment 4 August 10, 2011 Concerned California ML11231A252
Agreement State
Licensees
Comment 5 August 12, 2011 Jared Washburn ML112370043
Comment 6 August 14, 2011 Anonymous ML112370044
Comment 7 August 16, 2011 Deborah Morefield, ML11243A147
DoD (request for 75-
day extension of
public comment
period)
Comment 8 September 6, 2011 Robert Carr, EPA ML11252B049
Region 9
Comment 9 November 9, 2011 Stewart Black, ML11325A241
CDTSC
Comment 10 November 28, 2011 Maureen Sullivan, ML11334A056
DoD
Comment 11 November 29, 2011 John Fassell, CDPH ML12019A118