ML20129K280
| ML20129K280 | |
| Person / Time | |
|---|---|
| Issue date: | 04/02/1996 |
| From: | Schwartz M NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Doug Broaddus NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| Shared Package | |
| ML20129K276 | List: |
| References | |
| SSD, NUDOCS 9611140133 | |
| Download: ML20129K280 (4) | |
Text
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Note to:
Doug Broaddus, NMSS From:
Maria Schwartz, OGC, Rulemaking and Fuel Cycle Date:
Apnl 2,1996 i
SUBJECT:
INFORMAL RESPONSE TO QUESTIONS REGARDING AGENCY RESPONSIBILITY FOR SElZING AND DISPOSING OF A GAUGE ABANDONED BY A BANKRUlrr i
j LICENSEE l
This request involves an NRC-licensee which went bankrupt in 1989 and abandoned a gauge containing licensed material boxed at the site. The gauge was sold several times to scrap dealers and finally set off a radiation i
monitor when it was being disposed of as scrap. The abandoned gauge is now under the control of a non-licensee scrap dealer who inadvertently bought is with other scrap. As mentioned, the actual licensee went bankrupt and a bank, the trustee, sold the equipment and land. The bank says that the licensee has no assets to pay for disposal l
of the gauge since any remaining funds have a superior claim.
l The questions posed are 1) whether DOE or NRC should take the lead and remove the gauge and dispose ofit.
To this end, NMSS asked whether the NRC has the authority to hire a contractor to retrieve and dispose of the material. NMSS believes that there may be a " definitive line" and DOE has tL mie authority to retrieve and -
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l dispose of the gauge pursuant to the AEA and ERA. Pursuant to section 81 of the AEA, the NRC has the authority to retrieve and dispose of the gauge ifit is necessary to protect the public health and safety. That section states in pertinent part that i
The Commission shall not permit the distribution of any byproduct material to any licensee, and shall recall or order the recall of any distributed material from any licensee, who is not equipped to observe or who fails to observe such safety standards to protect health as may be established i
by the Commission...,
liowever, the NRC and DOE have entered into a MOU which places the r:sponsibility for removing and disposing of the gauge in DOE space. In a letter to Richard Cunningham cated 12/3/92, DOE responded to a similar request (except that instead of actually being bankrupt, the licensee was not financally able to continue to store safety the radioactive material). "Under these circumstances, it is appropriate for DOB to accept the radioactive material under the authority of the AEA." Since that letter, the NRC and DOE edered into the formal MOU signed in 1995 which states that DOE will be responsible for "the recall and recapture c,f these materials in coordination with NRC, as necessary, where they pose a threat to the health and safety of the public.
Responsibility for conducting these recovery operations is assigned to the Office of Environmental Management..." The NRC would be responsible for determining that the material held is an imminent threat to i
public health and safety and getting all pertinent information together for DOE. The " storage" of this material is not " secure" and could quickly impact public health and safety.
In addition, draft Policy and Guidance Directive 95.xx " Reviewing Efforts to Dispose of Licensed Material and Requesting DOE Assistance" addresses situations in which a licensee is " unable to safely maintain control over the material." In such cases, DOE assistance may be appropriate. Finally NRC Inspection Manual 1303 establishes procedures for requesting emergency assistance from DOE in " retrieving and storing
}
inadequately-controlled radioactive material licensed by NRC or an Agreement State." Examples of this are abandoned sources or devices containing sources that are traceable to a licensee that cannot take control of the l
l material. This seems to be exactly the case at hand. That document (I have it in draft) states that DOE "has only l
agreed to accept the material when it is clear that the material is causing, or has high potential to cause, a significant threat to public health and safety, and the responsible licensee is not available, or not capable of adequately controlling it."
l i
l The TAR alsc, points out that EPA may be responsible for the material pursuant to the Federal Radiological 9611140133 961108 l
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Emergency Response Plan. EPA could be the lead agency in this situation since it occurred at a facility not licensed by a Federal Agency or an Agreement State. And this would be squarely the case IF the source was from a foreign or unknown entity. In this situation, however, the original general licensee (and the tmstee in bankmptcy) is know.
Based on these documents, OGC's opinion is that the NRC could legally hire a contractor to retrieve and dispose of the material but that the situation seems to be one in which DOE should be involved as the agency responsible for this. As to who is legally responsible for reimbursement, the NRC or DOE should look not only to the licensee (now bankrupt) but also to the trustee, the bank which sold the licensee's assets (including the gauge -
prohibited by 10 CFR 31.5).
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UNITED STATES
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NUCLEAR REGULATORY COMMISSION j'
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MEMORANDUM T0:
John P. Potter, Chief Licensing and Inspection Branch 2-Region II i
FROM:
Donald A. Cool, Director Division of Industrial and Medical Nuclear Safety Office of Nuclear Materials Safety and Safeguards
SUBJECT:
TECHNICAL ASSISTANCE REQUEST:
FORMER BENAFUELS, INC.
CONTROL N0. - 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 this capacity (see attached response dned December 2, 1994). We continue to 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. Departmar,t of Energy (DOE) as disposal options remain available and the situation, as descr1i;ed, does not seem to pose an immediate threat to the public's health and safety.
However, we disagree that the situation does not fit the criteria for the Environmental Protection Agency (EPA) to take action as the Lead Federal Agency (LFA) for the Federal response under the draft Federal Radiological Emergency Response Plan (FRERP). As the FRERP and the current guidance for requesting DOE assistance seem to cover all plausible situations for dealing with abandoned radioactive material, the development of additional policy for dealing with these types of situations would not be necessary.
The determination of LFA under section II.B.1.c. of the FRERP states that, "The EPA is the LFA for an emergency that occurs at a facility not licensed, owned, or operated by a Federal Agency or an Agreement State." Your recommendation that NRC seize the material to prevent potential harm indicates that the situation may be characterized as an emergency.
In addition, as the gauge was not transferred to Urps Iron and Metal Company in accordance with 10 CFR 31.5(c)(8), and as Benafuels, Inc., the former general licensee, is no longer in business and Urps Iron and Metal Company does not hold a specific license to possess the gauge, the material is not licensed and, therefore, meets this criteria.
O Si3()@C
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J. Potter We recommend you contact the appropriate EPA regional office under the provisions of the FRERP and request EPA take action to mitigate the potential threat to the public health and safety as the LFA for the Federal response.
Please advise us if the EPA regional office is unresponsive to the request and we will contact EPA headquarters directly.
In addition to these actions, the regional inspection staff should ensure the material is secured such that further loss, transfer, and/or exposure to members of the general public is prevented until such time as EPA assumes responsibility for control of the material.
The TAR indicated that the current possessor of the gauge may return it to the scrap peddler from whom it was received.
It should be noted that the Department of Transportation l
exemption that allows this type of return requires the entire shipment of l
material to be rejected upon identification of the radioactive material.
This i
exemption is administered by the applicable State Department of Transportation upon a request submitted by the person receiving the material.
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 t
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October 7, 1996 10:32am Page 10 DIALOG (R) File 103:E rgy SciT4,c (c) format only 1996 ight-Ritder Info. All rts, reserv.
02108817 AIX-19-02388
- EDB"88-051541
Title:
Discovery PV 8603-(Davice for leak testing o ontainers for gaseous or liquid radioactive samples.)
Source: Radioisotopy (Czechc al vakia) v 28:1.
Coden: RAISB Publication Date: Mar 1987 p 62 Language: Czech
'8/3/24 (Item 24 from file: 103)
DIALOG (R) File 103: Energy SciTec (c) format only 1996 Knight-Ridder Info. All rts. reserv.
01994365 AIX-18-057162; EDB-87-122037
Title:
Leakage test methods demonstrating integrity of transport packagings, sealed radioactive sources and special form radioactive material: A review of standardization efforts and requirements Author (s): Kowalewsky, H.
Affiliation: Bundesanstalt fuer Materialpruefung, Berlin, Germany, F.R.
Title:
Packaging and transportation of radioactive materials (PATRAM '86).
Proceedings of an international symposium on the packaging and transportation of radioactive materials held in Davos, 16-20 June 1986.
Vol. 1 Saries/ Collection
Title:
Proceedings series Corporate Source: International Atomic Energy Agency, Vienna (Austria)
Conference
Title:
International symposium on the packaging and transport of radioactive materials (PATRAM '86)
Conference Location: Davos, Switzerland Conference Date: 16 Jun 1986 Publisher:
IAEA, Vienna, Austria Publication Date: 1987 p vp Rsport Number (s):
CONF-860604-
~ Language: English 8/3/25 (Item 25 from file: 103) j DIALOG (R) File 103: Energy SciTec (c) format only 1996 Knight-Ridder Info. All rts. reserv.
01901989 AIX-18-013923; EDB-87-029640
Title:
Sealed radioisotope sources.
Classification and testing methods original
Title:
Uzavrene radionuklidove zarice.. Stupne odolnosti a metody zkouseni corporate Source: Urad pro Normalizaci a Mereni, Prague (Czechoslovakia)
Publisher:
Vydavatelstvi UNM, Prague, Czechoslovakia Publication Date: 1985 p 36 Rsport Number (s):
CSN-404302 Language: Czech
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UNITED STATES j
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4 MEMORANDUM TO:
John P. Potter, Chief q
Licensing and
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Inspection Branch 2 Region II 4g h
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FROM:
Donald A. Cool, Director
/cv Division of Industrial and
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Medical Nuclear Safety Office of Nuclear Materials Safety and Safeguards p}
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SUBJECT:
TECHNICAL ASSISTANCE REQUEST:
FORMER BENAFUELS, INC.
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[p _ M M {V LICENSE N0. - N/A
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This is in response to your Technical Assistance Request (TAR) dated February 26, 1996, requesting assistance with an un-licensed gauge located at i
Urps Iron and Metal, Co., in Davy, WV.
The question as to whether to use i
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 this capacity (sce attached response dated December 2, 1994).
We continue to 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 (DOE) as disposal options remain available and the situation, as described, does not seem to pose an immediate threat to the public's health and safety. However we disagree that the
>ituation does not fit the criteria for the Environmental Protection Agency (EPA) to take action as the Lead Federal Agency (LFA) for the Federal response under the draft-Federal Radiological Emergency Response Plan (FRERP).
As the FRERP and the current guidance for requesting DOE assistance seem to cover all plausible situations for dealing with abandoned radioactive material, the development of additional policy for dealing with these types of situations g6,i would not be necessary.
/ pl5 j.
The determination of LFA under section II.B.1.c. of the FRERP states that, "The EPA is the LFA for an emergency that occurs at a facility not licensed, owned, or operated by a Federal Agency or an Agreement State." Your recommendation that NRC seize the material to prevent potential harm indicates that the situation may be characterized as an emergency.
In addition, as the gauge was not transferred to Urps Iron and Metal Company in accordance with 10 CFR 31.5(c)(8), and as Senafuels, Inc., the former general licensee, is no longer in business and Urps Iron and Metal Company does not hold a specific license to possess the gauge, the material is not licensed and, therefore, meets this criteria.
GLnc i o M dn ivusi umsy g
_ _ _ =. _ _ _ _
l J. Potter l We recommend you contact the appropriate epa regional affice under the provisions of the FRERP and request EPA take action to mitigate the potential threat to the public health and safety as the LFA for the Federal response.
Please advise us if the EPA regional office is unresponsive to the request and we will contact EPA headquarters directly.
In addition to these actions, the regional inspection staff should ensure the l
material is secured such that further loss, transfer, and/or exposure to members of the general public is prevented until such time as EPA assumes l
responsibility for control of the material.
The TAR indicated that the l
current possessor of the gauge may return it to the scrap peddler from whom it was received.
It should be noted that the Department of Transportation exemption that allows this type of return requires the entire shipment of material to be rejected upon identification of the radioactive material.
This ~'
exemption is administered by the applicable State Department of Transportation upon a request submitted by the person receiving the material.
s 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 l
l
l*
REGIONAL TECHNICAL ASSISTANCE REQUEST FORM D:ta: February 26,1996 maw or E-maw to: DonaM A. Cool, (DAC) Director, Division ofIndustrial and MedicalNuclear Safety, NMSS, Mail Stop 8F5-TWFN,1f E-mail, cc: CLE (DAC)
From: John P. Potter (JPP), Chief Licensing and Inspection Branch 2, Region //
Division of Nuclear Materials Sakty and Sakguards l
Lkensee: Former Benenweis, Inc. McComas, WV, [ Bankruptcy,1989]
Lkenee No.: GeneralLkense (10 CFR 31.5) i l
0 ControlNo. N/A l
0 Letter dated: N/A
~
O Suggested change in Mcensing procedure: N/A 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, soM twice, detected by scrap monitor, and returned to Urps kon 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 peddier. Benafuels, Inc. bankruptcy trustee claims insutRcent funds for disposal, and superior Mens on the funds that remain.
O Action Required: Develop a poMcy on disposal of abandoned material, not ciestly within the
}
ccope of P & GD 9-12 or the Federal Radiological Emergency Response Plan.
Recommended Action:
O Approve or D Re}ect That NRC hire a contractor to dispose of this category of radweste and attempt to recover the j
cost kom the originalmaterial homer who abandoned it. Continued unwnfing possession by a non-Econsee poses a potentialpuboc threat unless we Order him to obtain a Mcense for material he unwktingly purchased, and may again abandon. Regional Counsel, after consuidng with the
\\
Deputy Assistant General Counsel for Enforcement, concurs that the original Mcense homer (Benafuels, inc) can be hem accountabie, and that the indivMusiin current possession of the i
gauge cannot be c -rg:_":1 to spend money to dispose of the gauge. However, since it is unNkely that the disposal costs can be hsMy recovered from Benafuels, Inc., the NRC shouM seize the material to prevent potential harm.
Remarks: See attached.
. :QM Reviewer:
?:f: :'noviewer: Orysia Mesayk Banoy, Inspector inspector Phone No.: (404) 331-2687 FAX No.: (404) 331-5559 0lJ3 G '2' W ^ Jyn cm Form TAR-10 TAR naply Requested by: Apnil,1996
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- Remarks:
i l Roan Engineedng Company model X90-SA-8 Point Level Gauge ( Serial Nco. 75691) containing approximately 500 millicuries of Cesium 137 was sold to Benafuels, Inc., McComas WV, in February 1985 as a generaHy Mcensed device.
i l An 1989, Benafunk went bankrupt. Discussions between the Ril Materials Licensing / Inspection
! Branch 1 Chief and Rod Satter6eM and EHzabeth Pruitt of the First NationalBank of Blue 6eid West
- Ykginia (304) 325-8181, disclosed the following. The land and equipment at Benafuels were
! securky hv bonds issued at the thne the company was organized. First National Bank of BlueSeM, l WV, was the trustee & the bonds. Fkst NationalsoM the assets of Benafuels at pubHc suction in l 1989. Benehoek' equ(pment was purchased by Richard Perservati(304) 325-8195. Apparently,
- the equ4cment was removed kom the site by severalso~ rap dealers, one of whom soM the gauge l to Urps hon and Metal Co., Davy, WV.
l i On March 24,1995,. John Linger 6eM (703) 326-3466, a former Vice President at Benefuels called l the Matadak Licensing / inspection Branch 1 Chief and tom hkn, (at the request of Mr. Urps), that ct the Mme of bankruptcy, Benafuek was attempting to seN the gauge to Georgia Paci6c (a homer i cf a specl6c Mcense)>but the sale dM not go through. He had packaged andlabeled the box as l specl6*d by Roan. The gauge (the only one owned by Benafuels), was stiH onsite when he left the
- company.
I Urps kcn and Metal Co. purchased the gauge from a scrap dealer and subsequently sold it to Steel cf West Vkginia. On March 13, 1995, Steel of West Virginia noti 6ed Region H that a shipment of i scrap kom Urps had set off radiation monitors. Fortunately, the gauge was not smelted. Radiation
\\ bevels on the exterior of the truck were 2.5 mr/ hour. Radiation levels on contact with the gauge as measured by Urps were approxknately 40 mr/ hour. The gauge was returned to Urps.
A Region M Materials inspector went to the Urps iron and Metal Company on AprH 20,1995. The gauge was stored in a barraf inside a socked fenced area. The inspector provMed Radladon Meendet posdngs and took measurements, which were boss 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 & this was $1,200, but that costs couM go up the $5,000. Additiona0y, the gauge wouM have to be packaged and shipped. Mr. Urps stated that he couM not afford to abscrb this cost.
Discussion with Doug Broaddus with the Source Containment and Devices Branch disclosed their posiden that EPA shouW take responsibi0ty & the gauge. However, the FederalRadiological Emergency nesponse Pian states that " The EPA is the LFA (lead Federal Agency) & an emergency that involves radioactive material from a Wolgn or unknown source that has actual, potendet, or perceived radiological consequences". This materialis from a known source. PoGcy and Guidance Directive 9-12, Reviewing Ef&ts To Dispose of Licensed Material and Requesting U.S. Dspartment of Energy Assistance, dated August 1,1995 deals with a Rcensee seeking to a0 vest themselves of matedal. DOE may be caned to take possession of radioactive materialin antuadone involving a denned rauiciapical amercoura or that have a high potentief to cause a threat to the pubEc health and satiety.
k mpeers that this caso does not 6t into either category. The matedalis secured, abelt by an unauthorinedindfvidual. The indfwidual came by the source by accMent. Since he is an unwitting and umemng possessor we may not be ab6e to compel him to act in this matter, and he is anxious to stveet himself of the gauge. To prevent smelting or dumping, the NRC shouM hire a contsactor to remove the gauge kom ikps and attempt cost recovery. Nom the &mer of6cers of Benshools.