ML20129K275
| ML20129K275 | |
| Person / Time | |
|---|---|
| Issue date: | 11/08/1996 |
| From: | Camper L NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| To: | Piccone J NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| Shared Package | |
| ML20129K276 | List: |
| References | |
| SSD, NUDOCS 9611140121 | |
| Download: ML20129K275 (3) | |
Text
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UNITED STATES p
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NUCLEAR REGULATORY COMMISSION 2
WASHINGTON, D.C. 20555-0001 November 8, 1996 MEMORANDUM TO:
Josephine Piccone, Chief Operation Branch FROM:
Larry Camper, Chief Medical, Academic, &
mercia Use Safety Branch /
SUBJECT:
TECHNICAL ASSISTANCE REQUEST:
Items # 4 and Sa, b, and c of Regional Technical Assistance i
Request dated September 6,1996 j
As discussed, below are the responses to items # 4 and 5 of the TAR from Region lli dated September 6,1996.
Item # 4 - Realonal Recommendation:
Perform a review of the shelf-life of sealed sources and determine if a shelf-life requirement should be imposed.
NMSS/IMNS Response:
The determination of a shelf-life for sealed sources is a complicated issue that v>ould require consideration of a number of conditions, including source construction, use, and storage.
Use and storage conditions often vary extensively from user to user. For this reason, the actual shelf-life of a particular source model would vary according to its use and storage history.
Variations in these conditions would make the determination of a representative shelf-life requirement that could be applied generically for all conditions very difficult. In addition, a study of this type would be resource and cost intensive. IMNS does not currently have sufficient resources or funding to perform a study of this type that would be meaningful, and does not plan to conduct such a study at this time. However, an attemative to a shelf-life determination that could provide the desired results is the limiting of storage conditions to those that would not 1
have a detrimer,tal effect on the source. This method has been applied in the past with success and would be much simpler to implement. In addition, this approach would not be resource intensive as the demonstration of acceptable storage conditions would be provided by either the manufacturer or user of the source or storage container.
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Item # 5 Regional Recommendation:
To address sealed source disposal the NRC should:
I a.
Establish in NMSS a fund that can be used to pay for the transportation and disposal of abandoned sources.
b.
Develop a national sealed source depository that will accept all sealed Sources at little cost to the holder to encourage the removal from the public domain of useless or unneeded radioactive sources.
I c.
Establish a policy and funding that allows NRC to take control of abandoned facilities, rather than EPA, when only minor contamination is identified.
NMSS/IMNS Response:
We continue to support the recommendations made to the Commission by IMNS that contractors not be used for retrieval or disposal of radioactive material (See attached memorandum dated April 4,1996, and its attachments dated December 2,1994). Numerous l
policy and legal issues arise in trying to develop a plan to initiate and implement a NRC contract for retrieval and disposal of radioactive material (i.e. conflict of interest, appropriations, etc.).
If you have any questions or need additional clarification with this situation, please contact Mr.
Chris Brown at (301) 415-5787.
i Attachments: As stated i
i Distribution:
SSSS r/f NE01 DOCUMENT NAME: C:\\ OFFICE \\WPWIN\\WPDOCS\\ TAR 4.WPD Te receive a copo of this document. Indicate in the box:
"C' = Copy without attachment / enclosure "E" = Copy with attachment / enclosure "N* = No copy OFFICE IMAB iMAB
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UNITED STATES l
j NUCLEAR REGULATORY COMMISSION
~t WASHINGTON. O C. 20555-0001 April 4, 1996
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MEMORANDUM T0:
John P. Potter, Chief Licensing and l
Inspection Branch 2 Region II
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FROM:
Donald A. Cool, Director Division of Industrial ard j
Medical Nuclear Safety 6
Office of Nuclear Materials Safety and Safeguards t
SUBJECT:
TECHNICAL ASSISTANCE REQUEST:
FORMER BENAFUELS, INC.
CONTROL NO. - N/A LICENSE N0. - N/A This is in response to your Technical Assistance Request (TAR) dated February 26, 1996, requesting assistance with an un-licensed gauge located at Urps Iron and Metal, Co., in Davy, WV.
The question as to whether to use Nuclear Regulatory Commission contractors for the retrieval and disposal of seized material was raised by Commissioner de Planque in late 1994.
Staff response to this issue included a recommendation to not use contractors in We continue to this capacity (see attached response dated December 2, 1994).
support this position, and recommend you not proceed with the proposed action to hire a contractor to recover and dispose of the gauge.
In addition, we agree that the situation does not fit within the criteria for requesting assistance from the U.S. Department of Energy as disposal options remain available and the situation has not been characterized as an imminent threat tn the public health and safety, nor does it fit the criteria for the Environmental Protection Agency to take action as the Lead Federal Agency (LFA) for the Federal response under the draft Federal Radiological Emergency Response Plan as the material has been traced to a former licensee.
As Urps Iron and Metal Company purchased, and accepted, the gauge as metal scrap, and did not reject the shipment upon receipt, the responsibility for its disposition falls on Urps. Therefore, every effort should be made, up to and including issuing an Order, to have Urps return the gauge to Ronan In Engineering Company, or other authorized recipient, for disposal.
addition, Region 11 should assist Urps, as necessary and appropriate, with the Ronan has offered to accept the gauge for disposal and disposal of the gauge.
may be willing to mitigate the cost of the return, given that Urps is an un-licensed possessor of the material and has indicated an inability to pay for the transfer.
The TAR a'.so indicated that Urps may return the gauge to The regional inspection staff the scrap peddler from whom it was received.
should ensure the gauge is secured, such that further loss, transfer, and/or exposure to members of the general public is prevented, until such time as the gauge is transferred to Ronan, or other authorized recipient.
C/nc anmim U U / i./ U/- I L/
J. Potter It should be noted that the' Department of Transportation exemption that allows the refusal and return of radioactive material in shipments of scrap requires the entire shipment of material be rejected upon identification of the radioactive material.
This exemption is administered by the applicable State Department of Transportation following a request submitted by the person receiving the material.
The regional staff should contact the State to ensure an exemption is not issued in this case so that the gauge will not be transferred to another un-licensed party.
If you have any questions or need additional assistance with this situation, please contact me at (301) 415-7197 or Mr. Douglas Broaddus at (301) 415-5847.
Attachment:
As stated s
s Distribution:
SSSS r/f SSSS Staff NE02-SSD-3 IMNS # 5274 OMasnyk Bailey MCUMENT NAME:
H:\\ DOCUMENT \\R11 00E. TAR
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MEMORANDUM TO:
Commissioner de Plangue
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i FRON:
James H. Taylor Execut1ve 01 rector r Operat1ons
SUBJECT:
- ECY-94-266
- PRO D ENFORCEMENT ACTIONS AGAINST PERSONS POSSESSIN NRC-LICENSED HATERIALS WITHOUT AUTHORIZATION in response to Comraissioner de Planque's November 15, 1994 questions during i,
the ongoing consideration of issuing daily civil penalties for possession of radioactive materials without a valid license, the staff provides the s following information:
Question 1:
Staff indicates that where persons no longer authorized to possess radioactive raaterials continue to possess those materials, "there is not an imminent health and safety concern assumino such nersons maintain the NRC-licensed material in locked storace" (p.2, emphasis added).
It is not clear why given the failure of a licensee to comply with requirements for a license or a failure to comply with other requirements that lead to revocation of a license, the NRC should make any assumptions regarding the licensee's willingness or ability to comply with requirements for locked storage of licensed material or other safety requirements that are applicable while material is in i
storage.
Does NRC have an adequate basis for making the ascumption that locked storage requirements will be obse nad?
Answer:
The staff did not intend to make any assumption as to whether or not j
locked storage requirements will be observed. The statements quoted above are part of SECY-94-266's description of a particular type of case where the staff believes that regulatory action is needed.
i~
Specifically, SECY-94-266 is aimed at cases where (1) the underlying reason for license termination, suspension or revocation is essentially financial (e.g., licensees that choose not to renew; license revocations for non-payment of fees); and (2) the licensee or former licensee has not transferred the radioactive material (even though such option exists) often times because they do not went to spend the necessary funds.
In such cases, the staff believes additional civil penalties
)
could provide the impetus for licensees and funuer licensees tu comply with NRC requirements or orders to transfer the material. Given
- M protection of puut ic health and safety depends in part on the locked l
storage of the radioactive materials, the staff believes that transfer of the materials is preferable to allowing them to stay oc site; over kNlb0 0 g
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Ccmissioner de Planqce 2
l tir:e materials in storage wai n are rot econornically csab?e can de 1 cst er inproperly disposed of or t r oru fer r ed.
Question 2.
Would it not be more prudent for NRC to enter contractual arrangements with a licensee authorized to possess and/or dispose of radioactive materldls (or with DOE, if appropriate) whereby the staff would have the option of ordering the imediate seizure of the radioactive materials, thereby avoiding prolonged possession of licensed material by a licensee already in substantial noncompitance with NRC requirements? This practice would also avoid the risks attendant upon improper disposal.
Civil penalties could still be imposed for the unauthorized possession of the materlats.
Answer:
The' issue of wnich course of action is more prudent is a complicated question with botn legal and policy considerations.
In the staff's view, the licensee is responsible for the proper transfer or disposal of licensed radioactive materials.
It is for that reason that the staff chose to propose civil penalties with the potential to impose daily civil penalties in order to make noncompliance more expensive than compliance.
In those cases where licensees are financially unable to l
transfer the materials, the staff is considering a number of options.
The primary option would be to request 00E assistance in picking up material which poses a health and safety risk or concern.
The staff has drafted and is in the final steps of issuing an Inspection Procedure and i
a Policy and Guidance Directive to implement this option. A/se'cond."but less attractive option in the staff's view is the contracteFoptfonr* '
Major policy and legal issues arise in develooing a. plan to iaplement a an NitC contract for retrieval of materials.. These issues. include who has the authority or how can the authority be conveyed to a contr. actor to seize such property; how can~a contractor ootain indemnifiestion associated with seirurn; and how is the title or ownership of radioactive materials transferred.
In addition, there are associated implications that NRC will, take respons bil,ity,for transfeVandidisposal aftredkective mhterials een any licen}se expires.
5 Question 3:
If the above-described practice were to be adopted, could the NRC recover the actual costs of transfer and/or dispecal from the licensee?
Answer:
j The actual costs could be assessed but whether the claim would take i
precedence over other claims on tb #omer licensee's assets presents a more difficult legal issue.
In addition it is not clear whether the
~
payment to the NRC would go to the. U.S. Treasury or be usable by NRC to offset costs. This issue is being reviewed by 00C as part of the contract option, In a prior enforcement action against Dr. Fisher, the l
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staff proposed (SECY-93-248) and the :cmmission approved (Septenber 21, 1993 SAH) the issuance of a civil penalty in excess of the costs
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incurred b tnis case,y the 00E for removal of a 500 curie cobalt-60 source.
In the licensee palc a civil penalty in excess of the costs incurred by DOE to remove the NRC-licensed material.
In an attempt to balance limiting NRC involvement in removing or becoming responsibic for clean-up of a licensee's or a former licensee's NRC-licensed activities with ensuring that the costs do not become transferred to other NRC licensees, NMSS is considering various options regarding the feasibility of contractual arrangements to accept and store radioactive materials when
)
licensees or former licensees do not comply with requirements.
i The issues regarding the above contract proposal are difficult and are currentl.y being reviewed by OGC and NMSS.
In any event, the contract option is not the staff's first choice, even if it is feasible, to address this issue.
The staff believes that strong enforcement sanctions will provide licensees with the incentive to comply with requirements to transfer and properly dispose of materials.
Therefore, the staff requests that the proposal for daily civil penalties be separated from the contract issue and that the staff be given approval to issue daily civil penalties as described in SECY-94-266.
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REGIONAL TECHNICAL ASSISTANCE REQUEST FORM
(
f Dats: February 26,1996 l man or E-Mail to: Donald A. Cool, (DA C) Director, Division of Industrial and Medical Nuclear Safety, NMSS, Mail Stop 8FS-TWFN,1f E-mail, cc: CLE (DA C) i From: John P. Potter (JPP), Chief Licensing and Inspection Branch 2, Region II Division of Nuclear Materials Safety and Safeguards i
l Licsnsee: Former Benafuels, Inc. McComas, WV, (Bankruptcy,1989]
) Lic:nsa No.: GeneralLicense (10 CFR 31.5) i
) O ControlNo. N/A l D Letter dated: N/A l D Suggested change in licensing procedure: N/A i
i O Problem / issue: Gauge inadvertently came into the possession of a non-licensee and must be disposed of. 500 mci Cs-137 gauge was abandoned, sold twice, detected by scrap monitor, and j r2 turned to Urps fron and Metal Co., Davy, WV. Estimated cost to return to Ronan Engr Co.
l vendor, $2,000 -45,000. Possessor unwittingly bought gauge from scrap peddler and may return l to scr:p peddler. Benafuels, Inc. bankruptcy trustee claims insufficent funds for disposal, and i superior Mens on the funds that remain.
1 ii O Action Required: Develop a policy on disposal of abandcned material, not clearly within the l sc:pe of P & GD 9-12 or the Federal Radiological Emergency Response Plan.
i
) Recommended Action:
O Approve or D Reject t
l Th:t NRC hire a contractor to dispose of this category cf radwaste and attempt to recover the c:st kom the original material holder who abandoned it. Continued unwilling possession by a
{ non-Mcensee poses a potentialpublic threat unless we Order him to obtain a license for material he
- unwittingly purchased, and may again abandon. Regional Counsel, after consulting with the l D
- puty Assistant General Counsel for Enforcement, concurs that the originallicense holder (Benafuels, inc) "an be held accountable, and that the individualin current possession of the
! gaug3 cannot be compelled to spend money to dispose of the gauge. However, since it is unlikely l that the disposal costs can be fully recovered from Benafuels, Inc., the NRC should seize the l m:terial to prevent potential harm.
Remarks: See attached.
i Headquarters Reviewer:
R:glonalReviewer:
rysia Masnyk Bailey, inspector i
f Inspector Phone No.: (404) 331-2687 FAX No.: (404) 331-5559 i
i TAR Reply Requested by: April,1996 Form TAR-10 g:wsswrdutwes.tv
' Remarks:
l l ' Roan Engineering Company model X90-SA 8 Point Level Gauge ( Serial No. 75691) containing
} approximately 500 miHicuries of Cesium 137 was sold to Benafuels, Inc., McComas WV, in j February 1985 as a generaHy licensed device.
) In 1989, Benafuels went bankrupt. Discussions between the Rll Materials Licensing / Inspection i Brcnch 1 Chief and Rod Satterfield and Elizabeth Pruitt of the First National Bank of Bluefield West
- Vkginia (304) 325-8181, disclosed the foHowing. The land and equipment at Benafuels were s:curity for bonds issued at the time the company was organized. First National Bank of Bluefield, l
- WV, was the trustee for the bonds. First Nationalsold the assets of Benafuels at public auction in l 1989 renafuels' equipment was purchased by Richard Perservati(304) 325-8195. Apparently,
} the equyment was removed from the site by severalscrap dealers, one of whom soM the gauge i to Urps kon and Metal Co., Davy, WV.
On March 24,1995, John LingerHeld (703) 326-3466, a formw Vice President at Benefuels caHed
- the M:terials Licensing / Inspection Branch 1 Chief and tom him, (at the request of Mr. Urps), that at the time of bankruptcy, Benafuels was attempting to seH the gauge to Georgia Pacific (a holder sf a speciRc Mcense), but the sale did not go through. He had packaged and labeled the box as speci6ed by Roan. The gauge (the only one owned by Benafuels), was stiu onsite when he left the
- omptny.
b Urps kon and Metal Co. purchased the gauge from a scrap dealer and subseauently soldit to Steel l of West Vkginia. On March 13,1995, Steel of West Virginia notified Region Il that a shipment of f scrap from Urps had set off radiation monitors. Fortunately, the gauge was not smelted. Radiation bvels on the exterior of the truck were 2.5 mr/ hour. Radiation levels on contact with the gauge as
- neasured by Urps were approximately 40 mr/ hour. The gauge was returned to Urps.
1 i
1 Region H Materials inspector went to the Urps kon and Metal Company on April 20,1995. The gaug3 was stored in a barrelinsMe a locked fenced area. The inspector provided Radiation Meterialpostings and took measurements, which were less than 2 mr/ hour at the barrelsurface.
The inspector contacted the Ronan company and was advised that they use a contractor to recover the gauges and that the minimum cost for this was $1,200, but that costs could go up the $E,000. AdditionaMy, the gauge wouM have to be packagcd and shipped. Mr. Urps stated that he couM not afford to absorb this cost.
Olscussion with Doug Broaddus with the Source Containment and Devices Branch disclosed their oosition that EPA shouW take responsibility for the gauge. However, the Federal Radiological Emergency Response Plan states that " The EPA is the LFA (Lead Federal Agency) for an emergency that involves radioactive material from a foreign or unknown source that has actual, notential, or perceived radiological consequences". This materialis from a known source. Policy and GuMance Dkective 9-12, Reviewing Efforts To Dispose of Licensed Material and Requesting U.S. Department of Energy Assistance, dated August 1,1995 deals with a licensee seeking to divest themselves of material. DOE may be called to take possession of radioactive materialin situ:tions involving a deRrmi radioloaical emeraency or that have a high potential to cause a threat to the pubMc health and safety.
It appears that this case does not Rt into either category. The materialis secured, albeit by an unauthorized indivMusi. The indivMust came by the source by accident. Since he is an unwitting cnd unwMag possessor we may not be able to compel him to act in this matter, and he is anxious to divest hknself of the gauge. To prevent smelting or dumping, the NRC should hke a contractor to remove the gauge kom Urps and attempt cost recovery from the former ofricors of Benafuels.
..NRC FERM 8
. (4-79)
NRCM O240 I~
INCOMING AND SIGNATURE TAB Use this side of the sheet to precede the incoming material when assembling correspondence.
(USE REVERSE SIDE FOR SIGNATURE TAB) i 1
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INCOMING AND SIGNATURE TAB Use this side of the sheet to precede the signature page when aswmbling correspondence.
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l REGIONAL TECHNICAL ASSISTANCE REQUEST FORM Date:
February 26, 1996 Mail or E-Mail to:
Donald A.
- Cool, (DAC) Director, Division of Industrial and Medical Nuclear Safety, NMSS, Mail Stop 8F5-TWFN,If E-mail, cc: CLE (DAC)
From:
John P.
Potter (JPP), Chief Licensing and Inspection Branch 2, Region II Division of Nuclear Materials Safety and Safeguards Licensee: Former Benafuels, Inc. McComas, WV, (Bankruptcy, 1989)
License No.: General License (10 CFR 31.5)
Control No. N/A Letter dated: N/A Suggested change In licensing procedure: N/A Problem / issue: Gauge inadvertently came into the possession of a non-licensee and must be disposed of. 500 mci Cs-137 gauge was abandoned, sold twice, detected by scrap monitor, and returned to Urps Iron and Metal Co.,
Davy, WV.
Estimated cost to return to Ronan Engr.
Co.
- Vendor,
$2,000-$5,000.
Possessor unwittingly bought gauge from scrap peddler and may return to scrap peddler.
Benafuels, Inc. bankruptcy trustee claims insufficient funds for disposal, and superior liens on the funds that remain.
Action Required: Develop a policy on disposal of abandoned material, not clearly within the scope of P&GD 9-12 or the Federal Radiological Emergency Response Plan.
Recommended Action:
O Approve or O
Reject Thsc NRC hire a contractor to dispose of this category of radwaste and attempt to recover the cost from the original material holder who abandoned it.
Continued unwilling possession by a non-licensee poses a potential public threat unless we Order him to obtain a license for material he unwittingly purchased, and may again abandon.
Regional Counsel, after consulting with the Deputy Assistant General Counsel for Enforcement, concurs that the original license holder (Benafuels, Inc) can be held accountable, and that the individual in current possession of the gauge cannot be compelled to spend money to dispose of the gauge.
- However, since it is unlikely that the disposal costs can be fully recovered from Benafuels, Inc., the NRC should seize the material to prevent potential harm.
Remarks:
See attached.
Headquarters Reviewer:
Regional Reviewer: Orysia Masnyk Bailey, inspector Inspector Phone No.: (404) 331-2687 FAX No.: (404) 331-5559 TAR Reply Requested by: April, 1996 Form TAR-10 ge\\drss\\nmis\\urps. tar Oi nc rGnn rD
(()Ud / 4/4 #
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Remarks:
Roan Engineering Company model X90-SA-8 Point Level Gauge (Serial No. 75691) containing approximately 500 millicuries of Cesium 137 l
was sold to Benafuels, Inc., McComas WV, in February 1985 as a generally licensed device.
1 In 1989, Benafuels went bankrupt.
Discussions between the RII l
Materials Licensing / Inspection Branch 1 Chief and Rod Satterfield and Elizabeth Pruitt of the First National Bank of Bluefield, WV (304) 325-8181, discussed the following.
The land and equipment at l
Benafuels were security for bonds issued at the time the company I
was organized.
First National Bank of Bluefield, WV, was the trustee for the bonds.
First National sold the assets of Benafuels at public auction in 1989.
Benafuels' equipment was purchased by Richard Perservati (304) 325-8195.
Apparently, the equipment was i
removed from the site by several scrap dealers, one of whom sold the gauge to Urps iron and Metal Co.,
Davy, WV.
On March 24, 1995, John Lingerfield (703) 326-3466, a former Vice President at Benafuels called the Materials licensing / Inspection Branch 1 Chief and told him, (at the request of Mr. Urps), that at the time of bankruptcy, Benafuels was attempting to sell the gauge to Georgia Pacific (a holder of a specific license), but the sale
[
did not go through.
He had packaged and labeled the box as specified by Roan.
The gauge (the only one owned by Benafuels),
was stili onsite when he left the company.
Urps Iron and Metal Co. purchased the gauge from a scrap dealer and subsequently sold it to Steel of West Virginia.
On March 13, 1995, Steel of West Virginia notified Region II that a shipment.of scrap from Urps had set off radiation monitors.
Fortunately, the gauge was not smelted.
Radiation levels on the exterior of the truck k.
were 2.5 mr/ hour.
Radiation levels on contact with the gauge, as l
measured by Urps, were approximately 40 mr/ hour. The gauge was u
returned to Urps.
A Region II Materials Inspector went to the Urps Iron and Metal Cospiny on April 20, 1995.
The gauge was stored in a barrel inside a locked fenced area.
The inspector provided Radiation Material postings and took measurements, which were less than 2 mr/ hour at the barrel surface.
The inspector contacted the Ronan company and was advised that they use a contractor to recover the gauges and 3
-that the minimum cost for this was $ 1,200, but that costs could go e'
up the $5,000.
Additionally, the gauge would have to be packaged and shipped.
Mr. Urps stated that he could not afford to absorb this cost.
Discussion with Doug Broaddus with the Source Containment and Devices Branch disclosed their position that EPA should take responsibility for the gauge.
However, the Federal Radiological Emergency Response Plan states that - The EPA is the LFA (Lead Federal Agency) for an emergency that involves radioactive material l
from a foreign or unknown source that has actual, potential, or perceived radiological consequences.
This material is from a known l
source.
Policy and Guidance Directive 9-12, " Reviewing Efforts To Dispose of Licensed Material and Requesting U.S.
Department of Energy Assistance," dated August 1,
1995 deals with a licensee seeking to divest themselves of material.
DOE may be called to take possession of radioactive material in situations involving a defined radiological emergency or that have a high potential to cause a threat to the public health and safety.
It appears that this case does not fit into either category.
The material is secured, albeit by an unauthorized individual.
The individual came by the source by accident.
Since he is an unwitting and unwilling possessor we may not be able to compel him to act in this matter, and he is anxious to divest himself of the gauge. To prevent smelting or dumping, the NRC should hire a contractor to remove the gauge from Urps and attempt cost recovery from the former officers of Benafuels.
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