ML20136H658
| ML20136H658 | |
| Person / Time | |
|---|---|
| Issue date: | 02/07/1997 |
| From: | Paperiello C NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| To: | |
| Shared Package | |
| ML20136H527 | List: |
| References | |
| 2.206, NUDOCS 9703190237 | |
| Download: ML20136H658 (4) | |
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[7590-01) j U. S. NUCLEAR REGULATORY COMMISSION NATURAL RESOURCES DEFENSE COUNCIL RECEIPT OF PETITION AND ISSUANCE OF A DIRECTOR'S DECISION UNDER 10 CFR 2.206 Notice is hereby given that by Petition dated January 8,
- 1997, Thomas B. Cochran, on behalf of Natural Resources Defense Council j
?l.
(NRDC), requested that the Nuclear Regulatory Commission (Commission) take immediate action with regard to Envirocare of Utah, Inc.
Specifically, the Petition requested NRC to take the following actions:
i 1)
Immediately revoke the license or licenses, or I
cause the state of Utah to revoke its agreement state license or licenses, under which Envirocare is I
currently permitted to accept low-level radioactive waste and mixed waste for permanent disposal.
1 2)
Immediately revone the NRC 11e.(2) byproduct material license under which Envirocare is currently l
permitted to accept uranium mill tailings for disposal.
3)
Immediately revoke any other NRC license, or J
agreement state license, if such license exists, held 9703190237 970227 PDR STPRO ESGGEN PDR
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by Envirocare, Khosrow Semnani, er any entity controlled or managed by Khosrow Semnani.
i 4)
Prohibit the future issuances of any license by the l
NRC, the State of Utah, or other NRC agreement state, i
to Khosrow Seanani or any company or entity which he owns, controls, manages, or (with which hn) has a i
significant affiliation or relationship.
i 1
i s
5)
Suspend the agreement with the state of Utah under which regulatory authority has been transferred from the NRC to the Utah's Bureau of Radiation (Division of Radiation Control), until the State of Utah can demonstrate that it can operate the Bureau of Radiation (Division of Radiation Control) in a lawful manner, and i
without the participation of licensees, or employees of licensees, in Bureau of Radiation { Division of Radiation Control) oversight roles.
)
1 As a basis for the request, the Petitioner asserts that on I
December 28, 1996, an article in The Salt Lake Tribune reported that between 1987 and 1995 Mr. Semnani made secret cash payments j
i to Mr. Larry F. Anderson, who served as Director of the Utah l
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l+r i
e Division of Radiation Control from 1983 until 1993.
The article l
also reported that the Utah Attorney General's office has initiated a criminal investigation into the matter, a
1 The NRC response to the Petitioner's request regarding the i
Agreement State program is provided in a "NRC Staff Evaluation of i
Natural Resources Defense Council Request to Suspend Section 274 i
Agreement With The State of Utah."
The other issues raised in 4
the Petition have been evaluated by the Director of the office of
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Nuclear Material Safety and Safeguards.
After review of the Petition, the Director has denied the Petitioner's requests.
The Director's Decision concluded that no substantial health and safety issues have been raised regarding Envirocare that would require initiation of the immediate action requested by the NRDC.
The NRDC has not provided any information in support of its requests of which the NRC was not already aware.
- Moreover, NRC inspections of the Envirocare facility have not revealed the existence of extraordinary circumstances that would warrant immediate suspension of the Envirocare license.
In addition, the staff's review of the technical basis for its issuance of the license and subsequent amendments found no evidence of the existence of any substantial health or safety issue that would 3
e.
- s ;,.
- s justify the actions requested by the NRDC.
However, NRC Will monitor the investigations and actions being conducted by the State of Utah.
If NRC receives any specific information that there is a public health or safety concern as a result of these actions or from any other source, including the NRC ongoing Agreement State oversight activities, NRC will evaluate that information and take such action as it deems is warranted at that time.
i The complete " Director's Decision under 10 C.F.R. 5 2.206"
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(DD-97-02) 10 available for public inspection in the Commission's
-Public Document Room located at 2120 L Street, N.W., Washington, D.C.
20555.
The Director's Decision is also available on the NRC Electronic Bulletin Board at (800) 952-9676.
i A copy of this Decision will be filed with the secretary for f
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the Commission's review, in accordance with 10 CFR 2.206.
As I
provided by this regulation, the Decision will constitute the final i'
action of the commission 25 days after the date of issuance of the i
Decision unless the Commission on its own motion institutes a review of the Decision within that time.
l Dated at Rockville, Maryland this 7
day of February 1997.
l FOR THE NUCLEAR REGULATORY COMMISSION 1
Q i
d 't d ' '. Aii Carl J.IPape iallo, Director Office of Nuclear Material Safety and Safeguards i
4 1
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00-97-02 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS Carl J. Paperiello, Director In the Matter of
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Docket No. 40-8989
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License No. SMC-1559 ENVIROCARE OF UTAH, INC.
)
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(10 C.F.R. 5 2.206)
DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206 I.
INTRODUCTION
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In a letter dated January 8, 1997, Dr. Thomas B. Cochran, Director of i
1 Nuclear Programs, Natural Resources Defense Council (NRDC) requested, under 10 CFR 2.206 of the Commission's regulations, that NRC take action to revoke all licenses held by Envirocare of Utah, Inc. (Envirocare). Specifically, the Petition requested that "...NRC take the following actions:
- 1) Immediately revoke the license or licenses, or cause the state of Utah to revoke its agreement state license or licenses, under which Envirocare is currently permitted to accept low-level radioactive waste and mixed waste for permanent disposal.
i
- 2) Immediately revoke the NRC 11e.(2) byproduct material license under which Envirocare is currently permitted to accept uranium j
mill tailings for disposal.
- 3) Immediately revoke any other NRC license, or agreement state license, if such license exists, held by Envirocare, Khosrow Semnani, or any entity controlled or managed by Khosrow Semnani.
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- 4) Prohibit the future issuances of any license by the NRC, the State of Utah, or other NRC agreement state, to Khosrow Semnani or any company or entity which he owns, controls, manages, or (with which he] has a significant affiliation or relat'ionship.
- 5) Suspend the agreement with the state of Utah under which i
regulatory authority has been transferred from the NRC to the Utah's [ sic] Bureau of Radiation (Division of Radiation Control],
until the state of Utah can demonstrate that it can operate the Bureau of Radiation (Division of Radiation Control] in a lawful manner, and without the participation of licensees, or employees of licensees, in Bureau of Radiation (Division of Radiation Control] oversight roles."
1 NRDC asserts, as a basis for the request, that a December 28, 1996, article in The Salt Lake Tribune reported that between 1987 and 1995, Mr.
Semnani made secret cash payments to Mr. Larry F. Anderson, who served as Director of the Utah Division of Radiation Control (UDRC) from 1983 until 1993. The article also reported that the Utah Attorney General's office has initiated a criminal investigation into the matter.
Although NRDC's request that NRC suspend its agreement with the State of Utah, or cause Utah to revoke the license that it issued, do not squarely fall 2
m.
within the scope of matters ordinarily considered under 10 CFR 2.206', the staff has evaluated the merits of those requests. This evaluation is contained in a separate "NRC Staff Evaluation of Natural Resources Defense Council Request to Suspend Section 274 Agreement With The State of Utah."
l This Director's Decision will address the NRDC requests that relate to the license to receive, store, and dispose of certain byproduct material issued to Envirocare by NRC, pursuant to Section lle.(2) of the Atomic Energy Act of 1954 (AEA), as amended.
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II. BACKGROUND j
Envirocare operates a radioactive waste disposal facility in Clive, Utah, 128 kilometers (80 miles) west of Salt Lake City in western Tooele County. Radioactive wastes are disposed of by modified shallow land burial techniques. Envirocare submitted its license application to the NRC in November 1989 for commercial disposal of lle.(2) byproduct material, as i
defined in Section lle.(2) of the AEA. On November 19, 1993, NRC completed its licensing review and issued Envirocare an NRC license to receive, store, and dispose of uranium and thorium byproduct material. Envirocare began receiving Ile.(2) byproduct material in September 1994 and has been in continuous operation since.
To ensure that the facility is operated safely and in compliance with
' NRC Nanual Directive 8.11, " Review Process for 10 CFR 2.206 Petitions,"
issued September 23, 1994 (revised December 12,1995), states that the scope of the 10 CFR 2.206 process is limited to requests for enforcement action against licensees or entities engaging in NRC-licensed activities. But see State of Utah (Agreement Pursuant to Section 274 of the Atomic Energy Act of 1954, as Amended), DD-95-1, 41 NRC 43 (1995).
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1 NRC requirements, the staff conducts routine, announced inspections of the site. Areas examined during the inspections include management organization l
and controls, operations review, radiation protection, radioactive waste i
management, transportation, construction work, groundwater activities, and f
environmental monitoring. The NRC has conducted five inspections of the Envirocare facilities and has cited the licensee for three violations. All violations were categorized in accordance with the guidance in NUREG-1600, 1
i
" General Statement of Policy and Procedures for NRC Enforcement Actions" (Enfo cement Policy) at a Severity Level IV.2 The first violation, issued as a result of a July 1995 inspection and the s?cond violation, issued as a result of a July 1996 inspection, have been adequately resolved by Envirocare.
The last inspection, conducted on November 18-22, 1996, resulted in the issuance of the third citation noted above. This violation involved a failure to develop and implement, in a timely manner: 1) site-specific standards for three constituents found in the groundwater that exceeded their baseline values, and 2) a Compliance Monitoring Plan for arsenic after it was found to exceed its baseline value. These results of the November 1996 inspection are documented in Inspection Report 40-8989/96-02 which was issued on January 28, 1997. The NRC is in the process of determining whether Envirocare has taken appropriate action to correct this violation.
In addition, the November 1996 inspection identified other areas of concern where the staff determined that additional evaluation was necessary.
2 As explained in Section IV. of the Enforcement Policy, violations are normally categorized in terms of four levels of severity. A Severity Level IV violation is defined as a violation of more than minor concern which, if left uncorrected, could lead to a more serious concern.
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i As:a result, a follow-up inspection was conducted the week of January 27, 1
1997. Areas that were examined during this inspection included: 1) the licensee's quality assurance / quality control program; 2) the licensee's review of changes made to the facility; and 3) contractor laboratory certification.
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The results of the January 27, 1997, inspection are currently being evaluated.
Once this evaluation is complete, the NRC will document the results in an
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inspection report. Based on a preliminary review of the inspection results, j
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no significant violations were identified.
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III. DISCUSSION i
In December 1996, the Salt Lake Tribune published a series of articles I
that questioned the relationship between Larry F. Anderson, former Director of 1
l UDRC and Khosrow Semnani, President of Envirocare, during the licensing of the i
j low-level radioactive waste (LLW) disposal facility. Subsequently, the NRC j
staff learned that on May 16, 1996, Larry F. Anderson filed a complaint against Khosrow B. Semnani in the Third Judicial District Court of Salt Lake 1
County, State of Utah, to obtain compensation for alleged consulting services in the sum of 5 million dollars. The complaint alleges that, while Director l
of UDRC, Mr. Anderson recognized the need for a LLW site in Utah; incorporated a consulting firm, Lavicka, Inc., for the express purpose of developing a plan 4
l for siting the facility; and entered into a business arrangement to provide j
Mr. Semnani with a license application and consulting services. Mr. Anderson l
alleges that Mr. Semnani, President of Envirocare, agreed to pay a consulting fee of 100,000 dollars and an ongoing remuneration of 5 percent of all direct I
and indirect revenues that Mr. Semnani would realize from such a facility, if the site were successful. The complaint contends that Mr. Semnani owes Mr.
1 i
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Anderson unpaid compensation for consulting servir.es in the sum of 5 million dollars.
4 In October 1996, Mr. Semnani filed a counterclaim in the court, denying Mr. Anderson's claim and alleging that, in fact, Mr. Anderson used his position as the Director of UDRC to extort money in the sum of 600,000 dollars. Mr. Semnani contends that all the money he paid was based on the belief that if he did not pay, Mr. Anderson would use his official position and capacity as an officer and employee of the State of Utah to deny Mr.
Semnani fair consideration, review, hearing, and determination on his license application and, thereby, cause the license not to be granted, or, if Envirocare was granted a license, Mr. Anderson would use his position to subject the facility to unfair and biased oversight and supervision of the operation of the facility under the license. As a result of these allegations, the Utah Attorney General's office is investigating the relationship between Mr. Semnani and Mr. Anderson.
)
The NRDC petition is based on the events described above. The NRC has evaluated the NRDC's requests and found no basis to take the requested actions.
l As an initial matter, NRDC requests that the NRC immediately revoke the NRC lle.(2) byproduct material license under which Envirocare is currently J
permitted to accept uranium mill tailings for disposal.
In addition, NRDC also asks that the NRC innediately revoke any other NRC license, or agreement l
state license, if such license exists, held by Envirocare, Khosrow Semnani, or 6
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4 any entity controlled or managed by Khosrow Semnani.
i The NRC's Enforcement Policy describes the various enforcement sanc'tions available to the Commission once it determines that a violation of its requirements has occurred.
In accordance with the guidance in Section VI.C.3.,
of the Enforcement Policy, Revocation Orders may be used: (a) when a licensee is unable or unwilling to comply with NRC requirements; (b) when a licensee refuses to correct a violation; (c) when a licensee does not respond to a Notice of Violation where a response was required; (d) when a licensee refuses to pay an applicatle fee under the Commission's regulations; or (e) for any other reason for which revocation is authorized under Sc: tion 186 of the Atomic Energy Act (e.g., any condition that would warrant refusal of a license on an original application). Pursuant to 10 CFR 2.202(a)(5), the Comission may issue an imediately effective order to modify, suspend, or revoke a 4
license if the Comission finds that the public health, safety, or interest so requires or that the violation or conduct causing the violation was willful.
The Commission's regulations recognize that a licensee should be afforded under usual circumstances a prior opportunity to be heard before the agency suspends a license or takes other enforcement action, but that extraordinary 3
circumstances may warrant sumary action prior to hearing. See Advanced
In this case the NRDC has not provided the NRC with specific information establishing that a violation of NRC requirements has occurred, nor provided the NRC with any other information that would provide a basis for imediate 7
1
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suspension of the Envirocare license. As NRDC notes in its request, the Utah State Attorney General has initiated a criminal investigation into the matter of the relationship between Mr. Anderson and Mr. Semnani. Absent specific information supporting the existence of such extraordinary circumstances as would warrant such action, NRC believes that it would be premature to initiate immediate action pending completion of this investigation. We recognize that this matter involves potential issues of integrity, which, if proven, may raise questions as to whether the NRC should have the requisite reasonable assurance that Envirocare will comply with Commission requirements. NRC intends to follow the investigation of the State Attorney General closely.
If NRC receives information of public health and safety concerns during the investigation or on its completion, or receives such information from other sources, includihg NRC's ongoing Agreement State oversight activities, it will evaluate that information and take such appropriate action at that time as may be warranted.
Furthermore, the NRC staff has reviewed the bases for its licensing actions involving Envirocare, and confirmed that NRC did not rely on technical evaluations performed by the State to reach a decision regarding the evaluation of Envirocare's 11e.(2) byproduct material license. The staff conducted an independent technical evaluation of Envirocare's license application and subsequent amendment requests, and concluded that Envirocare had adequately demonstrated compliance with all applicable health and safety standards and regulations.
In addition, as noted above, NRC inspections of Envirocare have not revealed significant violations that would warrant immediate action.
8
e Moreover, with regard to NRDC's request that the NRC immediately revoke any other license, the NRC has issued no other license to Envirocare, Khosrow l
Seanani, or any entity controlled or managed by Khosrow Semnani.
For these
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reasons, this request is denied.
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NRDC also requests that the NRC prohibit the future issuances of any license by the NRC, the State of Utah, or other NRC agreement state, to Khosrow Semnani or any company or entity which he owns, controls, manages, or with which he has.a significant affiliation or relationship.
i i
With regard to this request, we have already noted that there is no I
basis for NRC to take immediate' action.
In any event. Section 2.206 is not a I
venue for presenting licensing contentions of the sort raised by this aspect l
of NRDC's petition. Section 2.206 provides for requests for action under that i
portion of the NRC's regulations governing enforcement actions, namely 10 CFR Part 2, Subpart B.
Subpart B is entitled " Procedure for Imposing Requirements by Order, or for Modification, Suspension, or Revocation of a License, or for Imposing Civil Penalties." Since the inception of the 10 CFR 2.206 process, j
the Commission has consistently stated that the purpose of 10 CFR 2.206 is to
]
provide the public with the meanc for participating in the enforcement l
process.3 The Commission has determined that the Section 2.206 process should be focused on requests for enforcement action rather than evaluations of safety concerns.
In accordance with this determination, the Commission's 3 " Requests to Impose Requirements by Order on a Licensee, or to Modify, Suspend or Revoke a License," 39 FR 12353 (April 5, 1974); "LeBoeuf, Lamb, Leiby & Macrae," 41 FR 3359 (January 22, 1976); " Petitions for Review of Director's Denial of enforcement Requests," 42 FR 36239 (July 14,1977).
9
Management Directive 8.1, " Review Process for 10 C.F.R. 2.206 Petitions," Part III, Section A, states that petitions will be reviewed under 10 C.F.R. 2.206 if the request is for enforcement action, and that a request under Section 2.206 should be distinguished from a request to deny a pending license application or amendment.
Because this request by the NRDC concerns licensing-type action, not enforcement-type action, the staff has determined that, consistent with the guidance of Management Directive 8.11, this request is not within the scope of 10 CFR 2.206'.
To the extent that further facts may be developed that may warrant consideration of this request, the mattar may be raised in an individual licensing proceeding; however, no such proceeding is presently pending, as there is no application pending for the issuance of a license to Envirocare.
IV. CONCLUSION On the basis of the above assessment, I have concluded that no substantial health and safety issues have been raised regarding Envirocars that would require initiation of the immediate action requested by the NRDC, and the Petition is therefore denied. As explained above, the NRDC has not provided any information in support of its requests of which the NRC was not already aware. Moreover, NRC inspections of the Envirocare facility have not revealed the existence of extraordinary circumstances that would warrant immediate suspension of the Envirocare license, in addition, the staff's Even if this request were interpreted as a request that the NRC issue an enforcement order prohibiting Mr. Semnani from engaging in licensed activities, and thus constitute a request for enforcement action within the scope of Section 2.206, NRDC has not provided the NRC with specific information such as would warrant the requested action, as explained above.
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'I review of the technical basis for its issuance of the license and subsequent amendments found no evidence of the existence of any substantial health or safety issue that would justify the actions requested by the NRDC. NRC'will monitor the investigations and actions being conducted by the State of Utah.
If NRC receives any specific information that there is a public health or safety concern as a result of these actions or from any other source, including the NRC ongoing Agreement State oversight activities, NRC will evaluate that information and take such action as it deems is warranted at that time.
Dated at Ro:kville, Maryland this f_ day of February 1997.
FOR THE NUCLEAR REGULATORY COMMISSION lf f :vM Carl J. Papelriello, Director Office of Nuclear Material Safety and Safeguards t
4 1
l 11
.EEB 11 sgr Carol S. Marcus, Ph.D., M.D.
President, California Chapter American College of Nuclear Physicians P. O. Box 31 Los Altos, CA 94023 4
Dear Dr. Marcus:
l l
This is in response to your letter dated January 21,1997, requesting NRC to 1
conduct a timely review of Utah's Agreement State Program with respect to issues raised l
in your letter to Mr. Robert Hoffman, Chairmen, Utah Radiation Control Board. NRC is presently requesting information from the State of Utah on the issues you raised. We will inform you of our decision whether to conduct a review of the Utah program. If you heve any questions, please contact me at 301-415-3340.
Sincerely, 0:1@~' SMM/
R! CHARD L. E'.!GGI 1
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Richard L. Bangart, Director j
Office of State Programs cc:
Mr. R. J. Hoffrnan, UT i
Mr. W. J. Sinclair, UT i
i l
4 i
4 4
i FE8 2 71997 ALL AGREEMENT STATES MASSACHUSETTS, OHIO, OKLAHOMA, PENNSYLVANIA TRANSMITTAL OF STATE AGREEMENTS PROGRAM INFORMATION (SP 97<)12 )
Your attention is invited to the enclosed correspondence which contains:
INCIDENT AND EVENT INFORMATION................. XX TWO REQUESTS FOR REVIEW OF UTAH'S PROGRAM MANAGEMENT INFORMATION...........
AGREEMENT STATE PROGRAM TRAINING COURSE INFORMATION.....................
TECHNICAL INFORMATION................................
OTHE R IN FO R MATI O N.......................................
Sunnlementarv information: The Natural Resources Defense Council and the American College of Nuclear Physicians have requested a review of Utah's Agreement State Program. Specifically, the organizations are concerned with the State's policies involving the regulation of the Envirocare disposal facility. Both organizations have requested the NRC's involvment in resolving this issue. Enclosed is a copy of the Director's decision relating to the NRDC petition and a copy of our letter to the ACNP on their request.
If you have any questions regarding this correspondence, please contact me or the individual named below.
POINT OF CONTACT:
Kathleen Schneider TELEPHONE:
(301) 415-2320 FAX:
(301) 415-3502 lNTERNET:
KXS@NRC. GOV C*igmat signed Gy; FAUL H. LOHAUS Paul H. Lohaus, Deputy Director Office of State Programs
Enclosures:
As stated Distnbution:
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ALL AGREEMENT STATES 4
MASSACHUSETTS, OHIO, OKLAHOMA, PENNSYLVANIA l
TRANSMITTAL OF STATE AGREEMENTS PROGRAM INFORMATION P 97-
)
j Your attention is invited to the enclosed correspondence which co ains:
s INCIDENT AND EVENT INFORMATION................. XX 0 REQUESTS FOR j
EVIEW OF UTAH'S PROGRAM MANAGEMENT INFORMATION...........
AGREEMENT STATE j
PROGRAM TRAINING COURSE INFORMATION.....................
I j
TECHNIC AL IN FO RMATION............................
j OTH E R I NFO R MATI O N......................................
l Supplementarv information: The Natural Res ces Defense Council and the American College of Nu:: lear Physicians have requested review of Utah's Agreement State l
Program. Specifically, the organizations are oncerned with the State's policies involving the regulation of the Envirocare d' posal facility. Both organizations have requested the NRC's involvment in r solving this issue.
i j
If you have any questions regarding thi correspondence, please~ contact me or the i
individual named below.
POINT OF CONTACT:
athleen Schneider i
TELEPHONE:
(301) 415-2320 FAX:
(301) 415-3502 l
lNTERNET:
KXS@NRC. GOV l
/
i Paul H. Lohaus, Deputy Director l
Office of State Programs i
j
Enclosures:
As stated I
Distribution:
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OSP FILE CODE: SP-A-4 SP-AG-27
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ALL AGREEMENT STATES l
MASSACHUSETTS, OHIO, OKLAHOMA, PENNSYLVANIA l
TRANSMITTAL OF STATE AGREEMENTS PROGRAM INFORMATION (SP )
f Your attention is invited to the enclosed correspondence which contains:
l lNCIDENT AND EVENT lt#0RMATION................. X TWO REQUESTS FOR
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REVIEW OF UTAH'S j
PROGRAM MANAGEMENT INFORMATION..........
AGREEMENT STATE PROGRAM i-TRAINING COURSE INFORMATION...................
l TECHNICAL INFORMATION...............................
1 OTHE R I N FO R MATI O N.....................................
Sunnlementary Information: The Natural Res/ources Defense Council and h College of Nuclear Physicians have requested a review of Utah's Agreeme, nt State l
Program. Specifically, the organizations a.rie concerned with the State's policies j
involving the regulation of the Envirocarydisposal facility. Both organizations hwe renuested the NRC's involvment in resolving this issue.
l if you have any questions regarding this correspondence, please contact me or the l
Individual named below.
POINT OF CONTACT:
/ Kathleen Schneider l
TELEPHONE:
(301) 415-2320 l
FAX:
(301) 415-3502 l
lNTERNET:
KXS@NRC. GOV i
Paul H. Lohaus, Deputy Director
/
Office of State Programs
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Enclosures:
l As stated
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l Distribution:
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UNITED STATES j
NUCLEAR REGULATORY COMMISSION 2
WASHINGTON. D.C. 2066H001 February 27, 1997 ALL AGREEMENT STATES MASSACHUSETTS, OHIO, OKLAHOMA, PENNSYLVANIA TRANSMITTAL OF STATE AGREEMENTS PROGRAM INFORMATION (SP-97-012 )
Your attention is invited to the enclosed correspondence which contains:
INCIDENT AND EVENT INFORMATION................. XX TWO REQUESTS FOR REVIEW OF UTAH'S PROGRAM MANAGEMENT INFORMATION...........
AGREEMENT STATE PROGRAM TRAINING COURSE INFORMATION.....................
TECHNICAL IN FORMATION................................
OTH E R I N F O R M ATI O N.......................................
Sunnlementary Information: The Natural Resources Defense Council and the American College of Nuclear Physicians have requested a review of Utah's Agreement State Program. Specifically, the organizations are concerned with the State's policies involving the regulation of the Envirocare disposal facility. Both organizations have requested the NRC's involvment in resolving this issue. Enclosed is a copy of the Director's decision relating to the NRDC petition and a copy of our letter to the ACNP on their request.
If you have any questions regarding this correspondence, please contact me or the individuel named below.
POINT OF CONTACT:
Kathleen Schneider TELEPHONE:
(301) 415 2320 FAX:
(301) 415-3502 lNTERNET:
KXS@NRC. GOV
/
(
)
Pau H. Lohaus, puty Director Office of State Programs
Enclosures:
As stated
g. _. _ -.
't rJM. 9.19974210 Olm FRMim" MSG CENit.nowni 232 2as agge NO.072 P. 2/8 P. 2 i
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" January 8,1997 j
James M. Taylor j
Executive Director'for Operations Nuclear R,egulatory Commission' i
Waihington, D.C. 20555
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RE: Request for action pursuant to le CFR 2.206.
j
Dear Mr. Taylor:
i In accordance with 10 CFR 2.206, I am writing on behalf of j
' Council, Inc. (hereafter "NRDC') to request that the Nucliar.the Natural Ra' source Regulatory Commission (hereafter j
"NRC") take action to revoke all licenses held by Envirocere of Utah, Inc. (hereafter Envirocare") for the possession and disposal of low-level radioactive and mixed waste and uranium mill tallings, and take other remedial steps. The basis'for this request and the relief,
l
' iequested are set fortlibelow.
c Basis for Request
.Envirocare accepts for disposal at its facility in Clive, Utah: a) 16w-lehl ridioactive. waste and -
mixed waste (a combination ofradioactive and. hazardous constituents that.are subject to the Resource Conservation and Recovery Act) under an operating license issued by Utah (an i
l agreement State with.the NRC); and b) pranium mill tailings under an'11s.(2) byproduct material j
disposal license issued in Novembeir 1993,by the.NRC. Envirocare is a private. company owned
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. by Khosrow S='nani, who also serves as its' president. Mr. Saranani also is a member of Utah's i
M of Radiation Control which oversees the activities of the Division of Radiation Control, i
which in turn has regula' tory authority over Envirocast's lioonas.,
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On December 28,1996, The Salt lone 7Hbune n.g d on page one that between 1987 and j
January 199.5, Mr. Semnani made secret cash paymshts totaling $600,000 to a state official who i
regulated his facility, namely, to Larry F. Anderson, who was director of the Utah Bur' au of e
j Radiation' Control from 1983 until 1993 (See attached article). According to the article there are i
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James Taylor j'
January 8,1997
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Page 2 i
court records that substantiate this claim. There is also evidence that these payments were in j
violation of Utah state law. De Utah State Attorney General's OfBee has initiated a criminal j
investigation.
l Envirocere stands to proSt enormously by this illegal action. For example, the U.S. Department i
of Energy has placed a five-year Basic Ordering Agreement with Envirocare for disposal ofits low level mixed waste generated as a result ofits cleanup acMiss. His agreement has an j
estimated market value of $350 million.
4 This issue is clear and straight forward. The president ef this company illegally paid the regulator to get his license to store radioactive waste. De license was obtained through a totally conupt process Under these extreme circumstances, all of the company's licenses must be sevoked. De public integrity of the NRC would be severely undermined if the Commissioners
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did nothing more than direct the staff to investigate whether errors of a technical nature were
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made in the license application, or whether the waste is currently stored in compliance with NRC j
technicalrequirements.
i he burden should be on the applicant to obtain a license through a lawfbl proccu. Moreover, i
neither the NRC, nor any agreement state, should grant a license to, or continue to license, a j
company that is owned, managed or controlled by someone who has made illegal payments to j
Federal or state regulators responsible for the license. Nor should NRC permit a licenses to serve on a board that oversees the state agency responsible for regulating the conduct of the
- licensee, t
l ReliefRequested NRDC hereby petitions the NRC to take the following actions:
- 1) hnmediately revoke the license or licenses, or cause the state of Utah to revoke its agreement state license or licenses, under which Envirocare is currently permitted to accept low-level j
' radioactive waste'and mixed waste for permanent disposal.
l
- 2) Immediately revoke the NRC 11e.(2) byproduct material license under which Envirocam is I
currently permitted to accept uranium mill tallings for disposal.
i
- 3) Immediately revoke any other NRC license, or agreement state license, if such Ilcanse exists, j
held by Envirocare, Khosrow Semnani, or any entity controlled or managed by Khosrow
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Semnani.
j
- 4) Prohibit the future issuance of any license by the NRC, the State of Utah, or other NRC agreement state, to Khosrow Semnani or any company or entity which he owns, cormels, marnges, or has a significant affiliation or mlationship.
1' i
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~ QddEX.'O.BQ&seieth musme MSG CENTERiTON 282 289 B8ge NO.e72 P.4/8P.d James Taylor January 8,1997
. Page 3
- 5) Suspend the agreement with the state of Utah under which regulatory authority has been i
sansferred from the NRC to the Utah's Bmeau of Radiation, until the state of Ohh can demonstrate that it ca' n operate the Bureau of Radiation in a lawful manner, and without the i
pesticipation of licensees, or employees oflicensees, in Bureau of Radiation oversight roles.
2 i
1 Thank you for you consideration of these matters.
j sincerely, h
=6 i
Thomas B, Cochran, Ph.D.
Director NuclearProgram i
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202 209 0990 1-09-1997 3:08PM FROM MtDC t'ASHINGTON 202 283 0990 P.1 G970017 Paperiello, NMSS Cys: Thompson Jordan Norry Blaha NATURAL RESOURCES DEFENSE COUNCIL Cyr, osc 1200 NEWYORKAVENUC NW, SUITE 400 LBancart, SP WASHINGTON, DC20005 Kennedy, NRR Tel: 202-289-6868 Fax: 202-289-1060 emau:teochran@ntdc.org FACSIMILE TRANSMITTAL SHEET TO:
Hugh L Thompson,Jr., Acting Executive Director for Operations FAX #:
301-415 2162 FROM:
Thomas Cochran DATE:
January 9,1997 TOTAL PAGES (including cover): 8 NOTE: The attached letter replaces a previously faxed version addressed to James M. Taylor, dated and faxed January 8,1996, from Thomas B. Cochran of the Natural Resources Defense Council, re: Request for action pursuant to 10 CFR l
2.206.,
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l.Jnn-22,-97 OD:0DA P.14 j
{gTTo January 21, 1997 i
The Monorable Shirley Ann Jackson American U.S. Nuclear Regulatory Commission College Of Washington, D.C.
20555 4
i Nucicar Physicians
}
Re:
Petition to Conduct Expedited Agreement State i
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Program Compatibility Review California Chapter 1
Dear Chairman Jackson:
$,I i
j Attached is a petition submitted by the American Nw i
College of Nuclear Physicians California Chapter 3
j
(" California ACNP") to the Utah Radiation control
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Board and Utah Department of Environmental Quality seeking reasonable and prudent protection from what we
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are concerned may be significant deficiencies in the state's regulation of the Envirocare disposal facility.
By copy of the petition, prepared consistent with 10 CFR Part 2, Subpart H, s.2802(c), California ACNP hereby petitions the NRC to conduct a timely review of Utah's Agreement State Program with respect to the issues raised to ensure that Agreement state compatibility requirements are properly 3
implemented. Petitioner seeks your particular attention to j
implementation of financial assurance requirements.
4 l
with Utah in the midst of reviewing a license renewal application j
based on receipt of up to 10.5 million cubic feet of waste per year, California ACNP respectfully requests your personal 3
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involvement in resolving the nationally important issued raised by our petition. In our view, a thoughtful and substantive 3
i response to the situation in Utah is critical to maintaining j
NRC's credibility as the federal entity responsible for j
regulating the management of low-level radioactive wastes.
l Sincerely, 2'.-
Carol s. Marcus, Ph.D., M.D.
j Director, Nuclear Med. Outpt. Clinic
,i Barbor-UCIA Medical Center i
and l
Professor of Radiological Sciences, i
UCIA i
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President, American College of Nuclear Physicians, California Chapter i
j cc:
Honorable Lauch Faircloth
Ja.n-22-@7 CO:GCA P.o2 3
{UC.k.TTo 4
l January 21, 1997 4
l i
l American College of l
Robert J. Hoffman, Chairman and Members hhJClear Utah Radiation Control Board Physicians Department of Environmental Quality 148 North 1950 West CWNomia P.o. Box 144s50 Chapter Salt Lake City, UT 84114-4850 Dwethy Duny Prie.
Esecutive Dmter subject:
Petition for Rulemaking U.c4uon
Dear Mr. Hoffnan:
fax w*si s"e"a u"i i
j The following petition is submitted to the Utah Radiation j
Control Board in accordance with the State of Utah's
}
responsibilities as an Agreement State under section 274 (b) of the federal Atomic Energy Act as amended. Petition i
format and content is based on the U.S. Nuclear Regulatory 1
Commission's 10 CFR Part 2, Subpart H, section 2.802(c) rule. We request that you inform us immediately if Utah law or regulations require us to follow an alternate procedure so we may take the i
necessary steps to resubmit it. By copy of this letter, we request that the Department of Environmental Quality undertake i
any related actions which are reserved to it or the Division of l
Radiation Control consistent with its Agreement State i
responsibilities and authority. We further request, by copy of
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this letter, that the NRC appropriately consider all Agreement state compatibility questions including the posting of sufficient j
financial assurances.
4 j
I.
General Problem statenest and Proposed solution 4
i 1.
Problem statement: Envirocare is not currently required to
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post substantial financial assurances, a circumstance we i
consider directly inconsistent with the state's earlier l
decision to exempt Envirocare from 10 CFR Part 61 l
institutional control requirements for land ownership. This concern is compounded by Utah's recent authorization to i
dispose of non-containerized nuclear power plant ion j
exchange resin wastes.
i Envirocare is now actively pursuing a state license renewal i
based on acceptance of up to 10.5 million cubic feet of i
radioactive vaste per year from combined private sector and i
government sources. (For comparison purposes, Ward Valley le l
licensed to receive a total of 5.5 million cubic feet of j
waste over the site's entire 30-year life), of this total, i
k
)
n-
_.. -... - -... - -. ~.. - -. - - - - - - -.. -. _. -... ~
j 'Jan-22-07 08: 07A P.03
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January 21, 1997 i
Robert J. Hoffman, chairman and Members Page !
l for Envirocare, more than a million cubic feet would be comprised of nuclear reactor-related low-level wastes, of l
which 80,000 cubic feet may comprise resin and other nuclear power plant cleaning wastes. An additional 3 million cubic feet of annual capacity is proposed for unspecified l
radioactive wastes containing naturally occurring and man-made isotopes falling within the 10 CFR Part 41.55 Class A
{
concentration limits. When compared to the detailed source i
ters analysis and related safety evaluation performed by j
california for Ward valley, Envarocare's request to take an i
unidentifiable source term of 3 million cubic feet / year l
raises serious questions about the level of detail used for j
pathways analysis and performance assessment.
j 2.
Pronomad Solution; The following petition components are j
respectfully submitted in the interest of obtaining reasonable and prudent protection from liability which may l
arise as a result of what appear to be significant j
deficiencies or potential deficiencias in the state of l
Utah's regulatory program for the Envirocare facility.
l l
(a)
The California chapter of the American College of Nuclear Physicians (" California ACNP"), whose members or member employers have shipped or will ship low-level radioactive waste to the Envirocare of Utah disposal facility in Tooele county, hereby file this petition for rulamaking with the Utah Radiation control Board to obtain an indemnification from the state of Utah and/or its lican cs for contingent environmental liability j
costs related to the disposal of low-level waste disposed at the Envirocare facility.
i (b) california ACNP petitions the Board to consider promulgation of an emergency rule to prohibit the continued, non-containarized disposal of nuclear power l
Plant ion exchange resins at the Envirocare facility.
Petitioner does not understand why the Division of i
Radiation control chose to authorize this apparently
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extraordinary practice in the midst of its ongoing review of Envirocare's radioactive materials license renewal application. Accordingly, an immediate order rescinding the Division's 1996 authorization pending j
Board action on this petition and completion of the Division's license renewal review process also appears j
to be appropriate.
/
4
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Jan-22-D7 OS:57A P.04
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January 21, 1997 i
Robert J. Hoffman, Chairman i
and Members l
Page i l
(c) california ACNP petitions the Board to evaluate the potential need to order the timely removal, packaging and off-site disposal of such waste consistent with ALARA principles and other occupational radiation l
safety considerations.
The purpose of petition components (b) and (c) is to minimize the liability and related harms of practices we are concerned may be incompatible with the 10 CFR Part 61 regulatory framework and inconsistent with generally accepted worker radiation protection i
standards.
\\
II.
Petitioner's erounds for and Interest in the Action l
Requested i
j Due to delays in the state of california's efforts to establish a commercial low-level waste disposal facility to I
service the four southwestern compact member states and california's loss of access to the Northwest compact's low-j level waste site in Washington State, certain members of i
california ACNP or member employers have utilized or may utilize the Envirocare disposal facility. In the context of l
the potential regulatory deficiencies described herein, such utilization gives rise to contingent liabilities for which j
our members now seek timely protection. As physicians with specialized expertise in radiation protection, we also have a
a professional concern with worker protection related to the j
safe handling of nuclear power plant ion exchange resins.
1 3
III. Statement and Analysis of specific Issuest i
1.
california ACNP believen that financial aamurance i
reauirements for closure and nostclosure monitorine and l
maintenance at the Envirocare facility may be inadeaunte. We j
understand that the funding levels now set aside to carry out these activities at the Envirocare facility are i
considerably le:: than those in place for South Caroline's I
Barnwell disposal facility and Washington's Richland disposal facility.
i As envisioned by 561.63(a), NRC anticipated that no license would be issued prior to submittal of "a binding j
arrangement, such as a lease, between the applicant and the disposal site owner that ensures that sufficient funds will be available to cover the costs of monitoring and any required maintenance during the institutional control period." Utah's decision to exempt Envirocare from the j
61.59(a) land ownership requirement and forgo the ability to i
Jan-22-07 CS:57A P.05 I
I
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i l
January 21, 1997 i
Robert J. Hoffman, Chairman and Members l
Page.
I enforce funding adequacy through a revocable leasehold interest would be vnderstandable had the state been fiscally conservative in establishing Envirocare's financial i
assurance requirements and otherwise stringently applied Part 61 requirements. As discussed below, this does not j
appear to be the case, i
As of January 1997, the Washington Department of Ecology's i
dedicated accounts for site closure ($24.2 million) and Perpetual surveillance / Maintenance (also $24.2 million) for e
l its Richland low-level radioactive waste disposal site j
exceed $4s million. According to South Carolina officials, approximately $87 million is set aside for its Barnwell i
site. of this amount, $12 million is designated for closure and stabilization and $75 million is available for long-tern care. Based on a January 16, 1994 discussion with Dane j
Finarfrock of the Utah Radiation Control Division, only $5 l
million has been deposited with a custodian for both closure j
and long-term monitoring and maintenance of Envirocare's
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radioactive materials facilities.
i We are quite concerned about this financial assurance 1
differential within the overall context that Envirocare is i
operating on private land, accepts far greater waste volumaa and more diverse waste types than either the Richland or Barnwell commercial sites, and carries out storage and processing operations in addition to disposal. Unlike the Washington and south Carolina facilities, Envirocare also disposes of " mixed wastes".
Moreover, we understand that large volumes of undisposed waste are often present at the Envirocare site.
In the event this site were ordered closed prior to disposing of all of the wastes present at the facility and/or remedial actions involving buried wastes were required, it appears that very limited funds would be available. CERCLA experience teaches us that a private site owner / operator may be unwilling or unable to respond effectively necessitating government-funded actions which may later be recovered from the waste generators.
A final question, which we hope can be affirmatively answered, is whether the State of Utah (as in Washington and south Carolina) controls the $5 million closure and long-term monitoring and maintenance fund. In other words, does the state have the ability to access the fund over the licensee's potential objections? If not, there is added reason for concern about the comparatively meager available funds.
.._m..__
Ja.n-22.-07 Om:07A P.OS j
j l
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I l
January 21, 1997
{
Robert J. Hoffman, Chairman and Members Page '
i l
l The liability exposure to petitioner's members and member employers appears to be magnified by Utah's 1996 l
authorization to dispose of unpackaged ion exchange resins, i
an authorization based on a unique practice under which 1
radionuclide concentrations present in containerized waste i
arriving at the site are emptied and diluted with soil in l
the disposal trench to meet applicable license limits (see
)
attached Utah Division of Radiation control Information l
Notice). According to Appendix P (November 1996) of i
l Envirocare's license renewal submittals, the company is now seeking state approval to dispose of up to 80,000 cubic feet a year of nuclear power plant resins and solidified cleaning j
agents.
i j
2.
california AcNP Em concerned that the Division of Radiation t
control's authernzation to dilute and dianone of non-containerized ion archanae resins may be contrary to the t
intent of the E61.55 waste classification system. invites l
violation of the C61.56fb) wasta stabilnty reauirements. and may violate ALARA worker ernomura nrincholes. The $61.55 classification system for commercial low-level wastes is based on isotope concentration limits calculated on a per-unit-volume basis averaged across the size of the container.
Utah's decision to base license compliance on isotope concentrations achieved within the disposal trench, after 4
diluting the waste with soil at 9:1 ratio, appears inconsistent with
$61.55 provisions for determining concentrations in the vaste itself. In concept, it appears that Utah's approach allows Envirocare to accept waste at I
its gate which exceeds its license limits and may even l
exceed the 561.55 Class A limits. In the latter instance, i
$61.56(b) would require specified waste form stability i
measures which appear to be inconsistent with Utah's requirement regarding containerized waste. Moreover, we
{
understand that Utah's regulatory authorization to accept j
the resins was based on existing license conditions applicable to debris waste posing little or no radiological j
hazard, and that no separate state-enforced license conditions exist to protect against the radiological hazards involved in emptying resin containers and mixing the Waste within the trench.
since the technical requirements of 10 CFR Part 61 are a matter of rather strict compatibility for Agreement states, we do not understand how Utah was apparently able to redefine the application of 561.55 without formally receiving approval from the NRC. Compatibility issues are also raised by the non-containerized disposal of commercial
l-1 January 21, 1997 l
Robert J. Hoffman, Chairman j
and Members j
page !
I low-level waste, a practice prohibited by all other commercial low-level waste sites and seemingly in conflict.
with the intent of the $61.56 waste characteristics 4
requirements. Now, for example, is the $61.56(a) (3) 1%
volume limit on free-standing liquida currently enforced in the absence of containers? Is this requirement applied?
Utah's practices raise a series of practical concerns due to j
the inherent nature of ion exchange resin waste. Used to i
filter strontium-90, cesium-137, cobalt-60 and other fission products out of the reactor's primary coolant loop, i
discarded resins often require shielding to minimize worker radiation exposure. (petitioner notes that license renewal application Appendix P makes no mention of Sr-90 and other i
fission products). Is the 80,000 cubic feet of resin and i
other cleaning wastes reflected in Appendix P an established j
limit? Was performance modeling performed prior to the i
authorization? What effect did the assumed source term increase have on the modeling? How were the resins assumed j
to be distributed within the disposal units?
Assuming for a moment that these matters have been fully and properly-resolved, it is difficult to understand why such potentially dangerous wastes were administrative 1y approved under existing license conditions developed for relatively i
innocuous debris materials. How will Utah regulators and Envirocare ensure that applicable waste concentration limits i
and potential waste form stability requirements are met? How l
are shielding considerations during package unloading and
}
solid mixing addressed? What measures are in place to i
prevent unintended dispersion of the uncontained, i
lightweight resin beads? Is the entire trench volume used to j
calculate concentration limit compliance? If so, how is this accomplished and how are potential " hot spots" accounted for? What quality assurance program requirements and facility operating procedures are in place to address each of these considerations? The import of these questions is underscored by the seemingly minimal regulatory review and j
public process which accompanied the state's approval of t
this major change in the facility's waste acceptance l
criteria.
Beyond the site-specific regulatory and safety considerations noted, petitioner is also concerned that the i
availability of comparatively inexpensive disposal capacity j
for large volumes of commercial nuclear power plant residues i
and other commercial low-level wastes will have a lethal j
effect on current efforts to license and open new compact
==_
4 l
i
Jan-22-07 0a:SSA P, 073 January 21, 1997 Robert J. Hoffman, Chairman and Nembers Page disposal facilities pursuant to the federal Low-Level Radioactive Waste Policy Act. Since the Barnwell site has a finite remaining capacity, and the Richland site is only open to the Northwest and Rocky Mountain Compact states, Envirocare seems poised to emerge as the nation's main disposal site.
Perhaps our greatest fear is that Envirocare's cheap prices, expanding waste acceptance criteria and vast unused capacity will lead to abandonment of the new facility siting efforts now underway, and that Envirocare will indeed become the main national disposer just long enough to develop problems which force its unexpected closure. This scenario would leave our members and many other waste producers across the nation with no place to take their waste and an undesired share of potentially significant environmental
)
restoration costs. In many ways, this fear lies at the crux of the issue.
We look forward to the state of Utah's formal reply and stand ready to help answer any questions you, the Department of Environmental Quality, or other state officials may have in considering this petition.
sincerely, f
$4 64'4Y 0
Carol s. Marcus, Ph.D., M.D.
Director, Nuclear Med. Outpt. Clinic Rarbor-UCLA Medical Center and Professor of Radiological Sciences, UCLA and President, American College of Nuclear Physicians, California Chapter l
esame.
_.......... ~.... - - - - _...
... ~..... - - - _.... _
JSn-22-07 CO:ESA P.OD 1
1 I
January 21, 1997 i
Robert J. Hoffman, Chairman i
and Members Page i
\\
1 i
i 1
i
Attachment:
May 7, 1996 Information Notice (
Subject:
ion exchange resin disposal)
{.
ec w/ attachment:
1 Governor Michael 0. Leavitt shirley Ann Jackson, Chairman, U.S. Nuclear Regulatory Commission Dianne R. Nielson, Executive Director, Utah Department of i
Environmental Quality Willian sinclair, Executive secretary, Radiation Control Board and Director, Radiation Control Division i
Don Womeldorf, Executive Director, southwestern compact j
Members, California ACNP Board i
I j
i i
s
Ja. n-22. -D7 03:ESA P.10.
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NUCLEAR REGULATORY COMMISSION I
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wasHtNoToN. o.c. sosswooi
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February 7,1997 1
Dr. Thomas 8. Cochran, Ph.D.
Director, Nuclear Program Natural Resources Defense Council 1200 New York Ave., N.W.
i Suite 400 Washington, D.C. 20005
$UBJECT: DIRECTOR'S DECISION ON NATURAL RESOURCES DEFENSE COUNCIL'S 10 CFR 2.206 PETITION 4
Dear Dr. Cochran:
)
By letter dated January 8,1997, you submitted to the U.S. Nuclear Regulatory i
Commission, on behalf of the Natural Resources Defense Council, a Petition, pursuant to 10 CFR 2.206, requesting that NRC take action regarding Envirocare of Utah, Inc. Specifically, you requested that NRC immediately revoke any license or licenses, or cause the State of Utah to revoke its Agreement State license or licenses, held by Envirocare of Utah, Inc. (Envirocare), Khosrow Semnani, or any entity controlled or managed by Khosrow Semnani; prohibit the future issuance of any license by NRC, the State of Utah, or other NRC Agreement State, to Khosrow Semnani or any entity with which he has a significant affiliation; and suspend Utah's Agreement State status until the State of Utah can demonstrate that it can operate the Utah Division of Radiation Control in a lawful manner. As a basis for this Petition, you asserted that an article in the December 28, 1996, Salt Lake City Tribune reported secret cash payments made by Mr. Khosrow Semnani, president of Envirocare, to Larry F. Anderson, then Director of the Utah Division of 3
Radiation Control, and the State of Utah's subsequent initiation of a criminal investigation into the matter.
)
NRC's response to your request regarding the Agreement State program is provided in Enclosure 1.
The Director, Office of Nuclear Material Safety and 1
Safeguards, has completed his review of the other issues raised in your Petition. For reasons explained in the enclosed Director's Decision D0-97-02, i
dated February 5, 1997 (Enclosure U, your request has been denied. Although the NRC is concerned about the implications raised by the issues identified in
.your petition, at this time we do not believe that specific information exists to take the action requested in the petition. We will be closely monitoring the investigations of this issue being conducted by the State of Utah to ensure that we are aware of any information that may warrant action on our part. In addition, you are free to submit another petition when additional facts may be available to you on this issue.
As provided by 10 CFR 2.206(c), a copy of this decision will be filed with the Secretary of the Commission for the Commission's review. As provided by this regulation, the Decision will constitute the final action of the Commission 25 days after the date of issuance of the Decision unless the Commission, on its
[~yWLRbQv f n 3r,mf I
j.
T. Cochran 2
eun action, institutes a review of the Decision within that time, in addition, a copy of the notice that is being filed for publication with the Office of the Federal Register is also included as Enclosure 3 for your leformation.
l Sincerely.
Hugh L. Thompson, Jr.
Acting Executive Director for Operations
Enclosures:
As stated (3) cc:
W. Sinclair, Director, Division of Radiation Control, Utah C. Judd. Executive Vice-President, Envirocare e
o
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t i
NRC STAFF EVALUATION OF NATURAL RESOURCES DEFENSE COUNCIL REQUEST TO SUSPEND SECTION 274 AGREEMENT WITH THE STATE OF UTAH i
I I.
INTRODUCTION In t letter dated January 8,1997, Dr. Thomas B. Cochran, of the Natural
{
Resources Defense Council (NRDC), requested under 10 CFR 2.206 of the Cormission's regulations, that, among other things, NRC suspend its
... agreement with the state of Utah under which regulatory authority has been transferred from the NRC to the Utah's Bureau of Radiation [ Division of Radiation Control), until the state of Utah can demonstrate that it can i
operate the Bureau of Radiation [ Division of Radiation Control] in a lawful i
manner, and without the participation of licensees, or employees of licensees, in Bureau of Radiation [ Division of Radiation Control) oversight roles."
In i
addition, NRDC requested that the NRC immediately cause the State of Utah to revoke its licenses to Envirocare, Khosrow Semnani, its President, or any i
entity controlled or managed by Mr. Semnani and prohibit the future iss w nte of any license by the State of Utah to Mr. Semnani or any company or er.tity that he owns, controls, manages, or with which he has a significant affiliation or relationship. As a basis for NRDC's request, Dr. Cochran j
asserted that a December 28, 1996, article in The Salt Lake Tribune reported i
that between 1987 and 1995 Mr. Semnani made secret cash payments to Mr. Larry F. Anderson, who served as Director of the Utah Division of Radiation Control from 1983 until 1993. The article also repor1.6d that the Utah Attorney
)
General's office has initiated a criminal investigation into the matter.
Although NRDC's requests that NRC suspend its agreement with the State of i
Utah, or cause the State of Utah to revoke licenses that it issued, do not squarely fall within the scope of matters ordinarily considered under NRC's' l
10 CFR 2.206 process, the staff has evaluated the merits of NRDC's request.
The staff's evaluation of these aspects of NRDC's request follows.
l II. BACKGROUND l
Section 274 of the Atomic Energy kt (AEA), as amended, provides the statutory basis under which NRC can relinquish certain of its regulatory i
j-responsibilities to the States. This makes it possible for States to license j
and regulate the possession and use of byproduct material, source material, and special nuclear material in quantities not sufficient to form a critical mass. The mechanism for NRC to discontinue and a State to assume authority to l
' NRC Manual Directive 8.11, " Review Process for 10 CFR 2.206 Petitions,"
issued September 23, 1994 (revised December 12,1995), states that the scope I
of the 10 CFR 2.206 process is limited to requests for enforcement action against licensees or entities engaging in NRC-licensed activities. But see i
State of Utah (Agreement Pursuant to Section 274 of the Atomic Energy Act of 1954, as Amended), D0-95-1, 41 NRC 43 (1995).
regulate the radiological health and safety aspects of nuclear materials is an agreement signed by the Governor of the State and the Chairman.
Before entering into such an agreement, the Governor is required to certify that the State has a regulatory program that is adequate to protect public health and safety.
In addition, the Commission, by'statutc, ::mt perform an independent evaluation and make a finding that the State's radiation control program is compatible with NRC's, complies with the applicable parts of Section 274 of the AEA, and is adequ' ate to protect public health and safety.
The AEA was amended in 1978 to require, among other things, that NRC periodically review Agreement State programs to determine the adequacy of the program to protect public health and safety and compatibility with NRC's regulatory program. Section 274j. of the AEA provides that NRC may suspend or terminate its agreement with a State if the Comission finds that such suspension or termination is necessary to protect public health and safety.
As mandated by the AEA, NRC conducts periodic, onsite reviews of each Agreement State program. The results of these reviews are documented in a report to the State. The report indicates whether the State's program is adequate to protect public health and safety ind also whether the program is compatible with NRC's regulatory program.
In some past cases, the State is informed that the findings on adequacy and compatibility are being withheld pending further review by NRC and the resolution of outstanding issues.
Currently, concerns identified in Agreement State program reviews that do not result in program suspension or termination, result in. findings of adequacy, with improvements needed, and a finding of compatibility or incompatibility.
The State of Utah originally became an Agreement State on April 1,1984. At that time, the State chose not to include authority for commercial low-level radioactive waste disposal in the Agreement.
However, on July 17, 1989, Governor Norman H. Bangerter of Utah requested that the Comission amend the Agreement to provide authority for Utah to regulate comercial low-level radioactive waste disposal.
NRC conducted an independent review of Utah's program for control of radiation hazards with respect to low-level radioactive waste disposal and determined that the State met the requirements of Section 274 of the AEA and that the State's statutes, regulations, personnel, licensing, inspection, and administrative procedures were compatible with those required by the Comission and were adequate to protect public health and safety. The amendment to the Utah Agreement became effective on May 9, 1990, 55 FR 22113 (May 31, 1990).
III. DISCUSSION NRDC requested suspension of the Agreement with the State of Utah based on newspaper reports that Mr. Anderson, Director of the Utah Division of Radiation Control from 1983 to 1993, received secret cash payments from Mr.
Sennani, President of Envirocare. The relationship between Mr. Anderson and Mr. Seanani is being investigated by the Utah Attorney General's office.
In addition, Mr. Semnani was appointed by the Governor of Utah as a member of the State's Radiation Control Board. NRDC requested that licensees should not be allowed to serve on State radiation control advisory boards.
2
I 4
Pursuant to Section 274 of the AEA, NRC relinquished its regulatory authority for the licensing of the use of certain radioactive material to Utah and therefore has no direct authority over licensing of these activities in Utah.
However, NRC does have authority to terminate or suspend Utah's Agreement State program under certain conditions pursuant to 274j. of the AEA.
Section 274j. states:
i The Commission, upon its own initiative after reasonable notice and opportunity for hearing to the State with which an agreement under subsection b. (of this section) has become effective, or j
upon request of the Governor of such State, may terminate or suspend all or part of its agreement with the State and reassert the licensing and regulatory authority vested in it under this Act, if the Commission finds that:
(1) such termination or l
suspension is required to protect the public health and safety, or (2) the State has not complied with one or more of the requirements of this section. The C:mmission shall periodically j
review such agreements and actions taken by the States under the l
agreements to insure [ sic) compliance with the provisions of this section.
Based upon these periodic reviews, or upon special reviews conducted for cause, before suspension oi termination of an agreement the Commission must find that:
(1) termination or suspension of a State's program is required to protect the public health and safety, or (2) that the State has not complied with one or more requirements of Section 274 of the AEA (e.g., the requirement for the State program to be compatible with the NRC program).
Section 274j(2) of the AEA, as amended, grants the Commission emergency authority to temporarily suspend all, or part, of its agreement with a State without notice or hearing if an emergency situation exists requiring immediate action to protect public health and safety and the State has failed to take steps to contain or eliminate the cause of danger within a reasonable time.
NRC has conducted six reviews of the Utah Agreement State program since Utah became an Agreement State in 1984 The most recent review of the Utah program was conducted on June 13-17, 1994.
In fact, two separate reviews were conducted at that time.
The routine Utah radiation control program review was conducted in conjunction with a pilot program entitled the Integrated Materials Performance Evaluation Frogram (IMPEP) in which common performance indicators were used to evaluate both the NRC Regional Office and the Agreement State programs.
The review team consisted of six staff, including two NRC staff from the Division of Waste Management to participate in the review of Utah's low-level radioactive waste management regulatory program.
The most recent reviews of the Utah program were conducted after Mr. Anderson had left the program.
The most recent review included evaluations of program changes made in response to previous review recommendations (including recomendations concerning the State's low-level radioactive waste disposal program), review i
of the State's written procedures and policies, discussions with program management and staff, technical evaluation of selected license and compliance files, accompaniment of a State inspector, review of the State's incident and 3
l allegation files, and the evaluation of the State's responses to an NRC l
questionnaire that was sent to the State in preparation for the review.
In i
addition, portions of the review covered the Utah low-level radioactive waste regulatory program and included review of open items identified in NRC staff correspondence sent to the State following dispatch of the previous NRC review letter. Based on these reviews conducted in 1994, the Utah program for l
agreement materials was found' adequate to protect public health and safety and was found to be in accordance with the provisions of Section 274 of the AEA.
l In light of the foregoing, the issue now is whether the controversy j
surrounding the relationship between Mr. Anderson and Mr. Semnani poses a safety concern of such significance as to require NRC to begin the process to 1
i revoke or suspend Utah's Agreement State program. NRC has determined that it j
does not have a basis to initiate such action at this time. NRDC has not provided NRC with any information that would suggest that an innediate public walth and safety issue exists.- As Dr. Cochran notes in his request, the Utah State Attorney General has initiated a criminal investigation into the matter i
j of the relationship between Mr. Anderson and Mr. Semnani. Absent specific information suggesting a public health and sa'ety concern, NRC believes that 1
it would be premature to initiate the requested subject action pending i
completion of this investigation. NRC intends to follow the investigation closely.
If at any time NRC receives information of public health and safety concerns during the investigation or upon its completion, or receives such information from other sources, including NRC's ongoing Agreement State oversight activities, NRC will evaluate this information and take such action as is warranted. NRC is required by law to continue to review the Utah Agreement State program for adequacy and compatibility.
Envirocare currently has a radioactive materials license from the Utah Division of Radiation Control (formerly the Bureau of Radiation) and is authorized to receive waste under the conditions of that license.
In accordance with State rules, the license is currently undergoing review by the State for a five year renewal. The license renewal application was submitted to the State on January 29, 1996, by Envirocare.
The Utah Division of Radiation Control has indicated it is reviewing responses to the first set of interrogatories on the application, and it continues to inspect and monitor the Envirocare site. The State of Utah has offered, and NRC has accepted, a briefing on the status of the license renewal review. NRC intends to follow the State's license renewal review.
NRDC also requested that NRC suspend the agreement with the State of Utah until Utah demonstrates it can operate its radiation control program without the participation of employees of licensees in an oversight capacity.
Mr. Sennani was appointed by the Governor of Utah to serve as a member of the State's Radiation Control Board.
In previous Utah program reviews, NRC has recommended to the State that it develop formal conflict-of-interest procedures in coordination with the Attorney General's office. The staff is satisfied that the State has adopted conflict-of-interest procedures consistent with those of other division boards within the Utah Department of Environmental Quality.
In addition, NRC has recently learned that Mr. Semnani has taken a two-month leave of absence from the Utah Radiation Control Board pending the completion of the criminal investigation.
4
l' l'
IV. CONCLUSION For the reasons stated above, NRC has determined not to take the action requested by NRDC at this time. NRC will continue to review the Utah Agreement State Program as required by law as well as to follow the investigation being conducted by the State's Attorney General and the State's review of Envirocare's license renewal application.
If at any time termination or suspension of the Utah Agreement is required to protect public health and safety or the State has not complied with one or more of the requirements of Section 274 of the AEA, NRC will initiate the proper actions.
5
s 1-l
[7590-01) l.
U. S. NUCLEAR REGULATORY COMMISSION NATURAL RESOURCES DEFENSE COUNCIL i
RECEIPT OF PETITION AND ISSUANCE OF A I
DIRECTOR'S DECISION UNDER 10 CFR 2.206 Notice is hereby given that by Petition dated January 8, 1997, l
Thomas B. Cochran, on behalf of Natural Resources Defense Council (NRDC), requested that the Nuclear Regulatory Commission (Commission) 3 take immediate action with regard to Envirocare of Utah, Inc.
Specifically, the Petition requested NRC to take the following actions:
l l
1)
Immediately revoke the license or licenses, or cause the state of Utah to revoke its agreement state license or licenses, under which Envirocare is currently permitted to accept low-level radioactive waste and mixed waste for permanent disposal.
i i
2)
Immediately revone the NRC 11e.(2) byproduct material license under which Envirocare is currently permitted to accept uranium mill tailings for disposal.
3)
Immediately revoke any other NRC license, or agreement state license, if such license exists, held al fe')
<e a -, 7 7 T JV)l 'l V G J t '
- s 4
j by Envirocare, Khosrow Semnani, or any entity 1
controlled or managed by Khosrow Sennani.
4)
Prohibit the future issuances of any license by the NRC, the State of Utah, or other NRC agreement state, j
to Khosrow Sennani or any company or entity which he owns, controls, manages, or (with which he] hac a I
significant affiliation or relationship.
i 5)
Suspend the agreement with the state of Utah under f
which regulatory authority has been transferred from the NRC to the Utah's Bureau of Radiation (Division of i
Radiation Control), until the State of Utah can 1
demonstrate that it can operate the Bureau of Radiation I
(Division of Radiation Control] in a lawful manner, and j
without the participation of licensees, or employees of licensees, in Bureau of Radiation (Division of Radiation control) oversight roles.
i As a basis for the request, the Petitioner asserts that on December 28, 1996, an article in The Salt Lake Tribune reported that between 1987 and 1995 Mr. Samnani made secret cash payments to Mr. Larry F. Anderson, who served as Director of the Utah
i *.'
i j.*
f Division of Radiation Control from 1983 until 1993.
The article also reported that the Utah Attorney General's office has t
initiated a criminal investigation into the matter.
i l
The NRC response to the Petitioner's request regarding the Agreement State program is provided in a "NRC Staff Evaluation of l
Natural Resources Defense Council Request to suspend Section 274
. Agreement With The State of Utah."
The other issues raised in i
the Petition have been evaluated by the Director of the office of Nuclear Material Safety and Safeguards.
After review of the Petition, the Director has denied the Petitioner's requests.
Y The Director's Decision concluded that no substantial health f
and safety issues have been raised regarding Envirocare that would require initiation of the immediate action requested by the NRDC.
The NRDC has not provided any information in support of j
^
its requests of which the NRC was not already aware.
- Moreover, NRC inspections of the Envirocare facility have not revealed the existence of extraordinary circumstances that would warrant immediate suspension of the Envirocare lit:ense.
In addition, the staff's review of the technical basis for its issuance of the license and subsequent amendments found no evidence of the existence of any substantial health or safety issue that would 3
r justify the actions requested by the NRDC.
However, NRC will monitor the investigations and actions being conducted by the State of Utah.
If NRC receives any specific information that there is a public health or safety concern as a result of these actions or from any other source, including the NRC ongoing Agreement State oversight activities, NRC will evaluate that information and take such action as it deems is warranted at that time.
The complete " Director's Decision under 10 C.F.R. $ 2.206" (DD-97-02) is available for public inspection in the Commission's Public Document Room located at 2120 L Street, N.W., Washington, D.C.
20555.
The Director's Decision is also available on the NRC Electronic Bulletin Board at (800) 952-9676.
A copy of this Decision will be filed with the Secretary for the Commission's review, in accordance with 10 CFR 2.206.
As provided by this regulation, the Decision will constitute the final action of the Commission 25 days after the date of issuance of the Decision unless the commission on its own motion institutes a review of the Decision within that time.
Dated at Rockville, Maryland this 7
day of February 1997.
FOR THE NUCLEAR REGULATORY COMMISSION
[, Q *,et u i
Af.
/A Carl J.IPapefiello, Director Office of Nuclear Material Safety and Safeguards 4
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l DD-97-02 UNITED STATES OF AMERICA j
NUCLEAR REGULATORY COMMISSION i
0FFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS i
Carl J. Paperiello, Director In the Matter of
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Docket No. 40-8989
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License No. SMC-1559 ENVIR0 CARE OF UTAH, INC.
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(10 C.F.R. I 2.206)
DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206 I.
INTRODUCTION i
j In a letter dated January 8,1997 Dr. Thomas B. Cochran, Director of Nuclear Programs, Natural Resources Defense Council (NRDC) requested, under 10 CFR 2.206 of the Commission's regulations, that NRC take action to revoke all licenses held by Envirocare of Utah, Inc. (Envirocare).
Specifically, the Petition requested that "...NRC take the following actions:
- 1) Immediately revoke the license or licenses, or cause the state of Utah to revoke its agreement state license or licenses, under which Envirocare is currently permitted to accept low-level radioactive waste and mixed waste for permanent disposal.
- 2) Immediately revoke the NRC 11e.(2) byproduct material license
.under which Envirocare is currently permitted to accept uranium mill tailings for disposal.
- 3) Immediately revoke any other NRC license, or agreement state i cense, if such license exists, held by Envirocare, Khosrow seenani, or any entity controlled or managed by Khosrow Semnani.
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- 4) Prohibit the future issuances of any license by the NRC, the State of Utah, or other NRC agreement state, to Khosrow Semnani or any company or entity which he owns, controls, manages, or (with whichhe]hasasignificantaffiliationorrelationship.
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- 5) Suspend the agreement with the state of Utah under which i
regulatory authority has been transferred from the NRC to the Utah's [ sic] Bureau of Radiation [ Division of Radiation Control),
untti the state of Utah can demonstrate that it can operate the j
Bureau of Radiation (Division of Radiation Control) in a lawful manner, and without the participation of licensees, or employees 4
of licensees, in Bureau of Radiation (Division of Radiation j
Control) oversight roles."
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NRDC asserts, as a basis for the request, that a December 28, 1996, 4
j article in The Salt Lake Tribune reported that between 1987 and 1995, Mr.
Seanani made secret cash payments to Mr. Larry F. Anderson, who served as Director of the Utah Division of Radiation Control (UDRC) from 1983 until j
1993. The article also reported that the Utah Attorney General's office has initiated a criminal investigation into the matter.
a Although NRDC's request that NRC suspend its agreement with the State of Utah, or cause Utah to revoke the license that it issued, do not squarely fall 3
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within the scope of matters ordinarily considered under 10 CFR 2.206', the staff has evaluated the merits of those requests. This evaluation is contained in a separate "NRC Staff Evaluation of Natural Resources Defense Councti Request to Suspend Section 274 Agreement With The State of Utah."
This Director's Decision will address the NRDC requests that relate to the license to receive, store, and dispose of certain byproduct material issued to Envirocare by NRC, pursuant to Section lle.(2) of the Atomic Energy Act of 1954 (AEA), as amended.
II. BACKGROUND Envirocare operates a radioactive waste disposal facility in Clive, Utah,128 kilometers (80 miles) west of Salt Lake City in western Tooele Coonty. Radioactive wastes are disposed of by modified shallow land burial techniques. Envirocare submitted its license application to the NRC in November 1989 for commercial disposal of lle.(2) byproduct material, as defined in Section lle.(2) of the AEA. On November 19, 1993, NRC completed its licensing review and issued Envirocare an NRC license to receive, store, and dispose of uranium and thorium byproduct material. Envirocare began receiving Ile.(2) byproduct material in September 1994 and has been in continuous operation since.
To ensure that the facility is operated safely and in compliance with
' NRC Manual Directive 8.11, " Review Process for 10 CFR 2.206 Petitions,"
issued September 23, 1994 (revised December 12,1995), states that the scope of the 10 CFR 2.206 process is limited to requests for enforcement action against licensees or entities engaging in NRC-licensed activities. But see State of Utah (Agreement Pursuant to Section 274 of the Atomic Energy Act of 1954, as Amended), 00-95-1, 41 NRC 43 (1995).
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j NRC requirements, the staff conducts routine, announced inspections of the site. Areas examined during the inspections include management organization l
and controls, operations review, radiation protection, radioactive waste management, transportation, construction work, groundwater activities, and environmental monitoring. The NRC has conducted five inspections of the Envirocare facilities and has cited the licensee for three violations. All violations were categorized in accordance with the guidance in NUREG-1600,
" General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement Policy) at a Severity Level IV.'
The first violation, issued as a result of a July 1995 inspection and the sicond violation, issued as a result or a July 1996 inspection, have been adequately resolved by Envirocare.
The last inspection, conducted on November 18-22, 1996, resulted in the issuance of the third citation noted above. This violation involved a failure to develop and implement, in a timely manner: 1) site-specific standards for three constituents found in the groundwater that exceeded their baseline values, and 2) a Compliance Monitoring Plan for arsenic after it was found to exceed its baseline value. These results of the November 1996 inspection are documented in Inspection Report 40-8989/96-02 which was issued on January 28, 1997. The NRC is in the process of determining whether Envirocare has taken appropriate action to correct this violation.
In addition, the November 1996 inspection identified other areas of concern where the staff determined that additional evaluation was necessary.
2 As explained in Section IV. of the Enforcement Policy, violations are normally categorized in terms of four levels of severity. A Severity Level IV violation is defined as a violation of more than minor concern which, if left uncorrected, could lead to a more serious concern, 4
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As a result, a follow-up inspection was conducted the week of January 27, 1997. Areas that were examined during this inspection included: 1) the 1
licensee's quality assurance / quality control program; 2) the licensee's review e
of changes made to the facility; and 3) contractor laboratory certification.
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The results of the January 27, 1997, inspection 6,re currently being evaluated.
Once this evaluation is complete, the NRC will docwent the results in an j
i inspection report. Based on a preliminary review of the inspection results, no significant violations were identified.
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III. DISCUSSION In December 1996, the Salt take Tribune published a series of articles that questioned the rd ationship between Larry F. Anderson, former Director of l
UDRC and Khosrow Semnani, President of Envirocare, during the licensing of the low-level radioactive waste (LLW) disposal facility. Subsequently, the NRC staff learned that on May 16, 1996, Larry F. Anderson filed a complaint against Khosrow B. Semnant in the Third Judicial District Court of Salt Lake County, State of Utah, to obtain compensation for alleged consulting services i
in the sum of 5 million dollars. The complaint alleges that, while Director of UDRC, Mr. Anderson recognized the need for a LLW site in Utah; 16corporated a consulting firm, Lavicka, Inc., for the express purpose of developing a plan i
for siting the facility; and entered into a business arrangement to provide Mr. Semnani with a license application and consulting services. Mr. Anderson alleges that Mr. Semnant, President of Envirocare, agreed to pay a consulting fee of 100,000 dollars and an ongoing remuneration of 5 percent of all direct and indirect revenues that Mr. Semnani would realize from such a facility, if the site were successful. The complaint contends that Mr. Semnani owes Mr.
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Anderson unpaid compensation for consulting services in the sum of 5 million dollars.
1 In October 1996, Mr. Semnani filed a counterclaim in the court, denying Mr. Anderson's claim and alleging that, in fact, Mr. Anderson used his position as the Director of UDRC to extort money in the sum of 600,000 dollars. Mr. Semnani contends that all the money he paid was based on the belief that if he did not pay, Mr. Anderson would use his official position and capacity as an officer and employee of the State of Utah to deny Mr.
Semnani fair consideration, review, hearing, and determination on his license application and, thereby, cause the license not to be granted, or, if Envirocare was granted a license, Mr. Anderson would use his position to subject'the facility to unfair and biased oversight and supervision of the operation of the facility under the license. As a result of these allegations, the Utah Attorney General's office is investigating the relationship between Mr. Semnant and Mr. Anderson.
The NRDC petition is based on the events described above. The NRC has evaluated the NRDC's requests and found no basis to take the requested actions.
As an initial matter, NRDC requests that the NRC imediately revoke the NRC 11e.(2) byproduct material license under which Envirocare is currently permitted to accept uranium mill tailings for disposal.
In addition, NRDC also asks that the NRC immediately revoke any other NRC license, or agreement state license, if such license exists, held by Envirocare, Khosrow Semnani, or 6
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l any eatity controlled or managed by Khosrow Semnani.
The NRC's Enforcemest Policy describes the various enforcement sanctions available to the Comission once it determines that a violation of its requirements has occurred.
In accordance with the guidance in Sectior VI.C.3..
of the Enforcement Policy, Revocation Orders may be used: (a) when a licensee is unable or unwilling to comply with NRC requirements; (b) when a licensee refuses to correct a violation; (c) when a licensee does not respond to a Notice of Violation where a response was required; (d) when a licensee refuses to pay an applicalle fee under the Comission's regulations; or (e) for any other reason for which revocation is authorized under Sc: tion 186 of the Atomic Energy Act (e.g., any condition that would warrant refusal of a license on an original application). Pursuant to 10 CFR 2.202(a)(5), the Comission may issue an imediately effective order to modify, suspend, or revoke a iicense if the Comission finds that the public health, safety, or interest so requires or that the violation or conduct causing the violation was willful.
The Commission's regulations recognize that a licensee should be afforded under usual circumstances a prior opportunity to be heard before the agency suspends a license or takes other enforcement action, but that extraordinary circumstances may warrant summary action prior to hearing. See Mvanced Nedical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-94-6, 39 NRC 285, 299 (1994).
In this case the NRDC has not provided the NRC with specific inforuation establishing that a violation of NRC requirements has occurred, nor provided the NRC with any other information that would provide a basis for immediate 7
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suspension of the Envirocare license. As NROC notes in its request, the Utah State Attorney General has initiated a criminal investigation into the matter of the relationship between Mr. Anderson and Mr. Semnani. Absent specific information supporting the existence of such extraordinary circumstances as would warrant such action, NRC believes that it would be premature to initiate immediate action pending completion of this investigation. We recognize that this matter involves potential issues of integrity, which, if proven, may raise questions as to whether the NRC should have the requisite reasonable assurance that Envirocare will comply with Commission requirements. NRC intends to follow the investigation of the State Attorney General closely.
If NRC receives information of public health and safety concerns during the investigation or on its completion, or receives such information from other sources, including NRC's ongoing Agreement State oversight activities, it will evaluate that information and take such appropriate action at that time as may be warranted.
Furthermore, the NRC staff has reviewed the bases for its licensing actions involving Envirocare, and confirmed that NRC did not rely on technical evaluations performed by the State to reach a decision regarding the evaluation of Envirocare's lle.(2) byproduct material license. The staff conducted an independent technical evaluation of Envirocare's license application and subsequent amendment requests, and concluded that Envirocare had adequately demonstrated compliance with all applicable health and safety standards and regulations.
In addition, as noted above, NRC inspections of Envirocare have not revealed significant violations that would warrant immediate action.
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Moreover, with regard to NRDC's request that the NRC imediately revoke any other license, the NRC has issued no other license to Envirocare, Khosrow
- Sennani, or any entity controlled or managed by Khosrow Semnani. For these reasons, this request is denied.
NRDC also requests that the NRC prohibit the future issuances of any license by the NRC, the State of Utah, c,r other NRC agreement state, to Khosrow Seanani or any company or entity which he owns, controls, manages, or with which he has a sigr.ificant affiliation or relationship.
With regard to this request, we have already noted that there is no basis for NRC to take immediate action.
In any event. Section 2.206 is not a
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venue for presenting licensing contentions of the sort raised by this aspect of NRDC's petition. Section 2.206 provides for requests for action under that portion of the NRC's regulations governing enforcement actions, namely 10 CFR Part 2, Subpart B.
Subpart B is entitled " Procedure for Imposing Requirements by Order, or for Modification, Suspension, or Revocation of a License, or for Imposing Civil Penalties." Since the inception of the 10 CFR 2.206 process, the Commission has consistently stated that the purpose of 10 CFR 2.206 is to provide the public with the near-for participating in the enforcement process.3 The Commission has determined that the Section 2.206 process should be focused on requests for enforcement action rather than evaluations of safety concerns.
In accordance with this determination, the Commission's 3 " Requests to Imp se Requirements by Order on a Licensee, or to Modify, Suspend or Revoke a License," 39 FA 12353 (April 5, 1974); "LeBoeuf, Lamb, Lei >y & Macrae," 41 TA 3359 (January 22, 1976); " Petitions for Review of Director's Denial of enforcement Requests," 42 F# 36239 (July 14,1977).
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Nanagement Directive 8.1, " Review Process for 10 C.F.R. 2.206 Petitions," Part III, Section A, states that petitions will be reviewed under 10 C.F.R. 2.206 if the request is for enforcement action, and that a request under Section 2.206 should be distinguished from a request to deny a pending license l
application or amendment.
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8ecause this request by the NRDC concerns licensing-type action, not enforcement-type action, the staff has determined that, consistent with the i
guidance of Management Directive 8.11, this request is not within the scope of 10 CFR 2.206'.
To the extent that further facts may be developed that may warrant consideration of this request, the mattar may be raised in an individual licensing proceeding; however, no such proceeding is presently pending, as there is no application pending for the issuance of a license to Envirocare.
IV. CONCLUSION On the basis of the above assessment, I have concluded that no substantial health and safety issues have been raised regarding Envirocare that would require initiation of the immediate action requested by the NRDC, and the Petition is therefore denied. As explained above, the NRDC has not provided any information in support of its requests of which the NRC was not already aware. Moreover, NRC inspections of the Envirocare facility have not revealed the existence of extraordinary circumstances that would warrant immediate suspension of the Envirocare license.
In addition, the staff's Even if this request were interpreted as a request that the NRC issue an enforcement order prohibiting Mr. Semnani from engaging in licensed activities, and thus constitute a request for enforcement action within the scope of Section 2.206, NRDC has not provided the NRC with specific information such as would warrant the requested action, as explained above.
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review of the technical basis for its issuance of the license and subsequent amendments found no evidence of the existence of any substantial health or safety issue that would justify the actions requested by the NRDC. NRC will l
monitor the investigations and actions being conducted by the State of Utah.
If NRC receives any specific information that there is a public health or
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safety concern as a result of these actions or from any other source, including the NRC ongoing Agreement State oversight activities, NRC will evaluate that information and take such action as it deems is warranted at that time.
Dated at Ro:kville, Maryland this [_ day of February 1997.
FOR THE NUCLEAR REGULATORY COMMISSION lf-f^-M Carl J. Paperiello, Director Office of Nuclear Material Safety and Safeguards 11
j 5.5B11 M' Carol S. Marcus, Ph.D., M.D.
President, Califomia Chapter American College of Nuclear Physicians P. O. Box 31 Los Altos, CA 94023
Dear Dr. Marcus:
This is in response to your letter dated January 21,1997, requesting NRC to conduct a timely review of Utah's Agreement State Program with respect to issues raised I
j in your letter to Mr. Robert Hoffman, Chairman, Utah Radiation Control Board. NRC is pr:sontly requesting information from the State of Utah on the issues you raised. We will i
l inform you of our decision whether to conduct a review of the Utah program. If you have any questions, please contact me at 301-415 3340.
j Sincerely, 0:i;5 ' SWW Ey PJCHAF,0 L. D.UATiT l
Richard L. Bangart, Director i
Office of State Programs l
cc:
Mr. R. J. Hoffman, UT Mr. W. J. Sinclair UT N O O b O / 5 &
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