ML20196A030

Requests Commission Approval of Staff Position That Ohio Approach to Decommissioning,Which Differs from NRC Requirements But Does Not Create Significant Conflict, Compatible with NRC Program

ML20196A030
Person / Time
Issue date:	09/08/1998
From:	Callan L NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
References
SECY-98-209, SECY-98-209-01, SECY-98-209-1, SECY-98-209-R, NUDOCS 9811270028
Download: ML20196A030 (31)

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POLICY ISSUE (Notation Vote)

September 8, 1998 SECY-98-209 ERB: The Commissioners FROM: L. Joseph Callan Executive Director for Operations ,

SUBJECT:

PROPOSED AGREEMENT WITH THE STATE OF OHIO AND COMPATIBILITY REQUIREMENTS OF 10 CFR PART 20, SUBPART E PURPOSE:

To request the Commission's approval of the staff position that Ohio's approach to decommissioning, which differs from NRC requirements but does not create a significant conflict, is compatible with NRC's program.

BACKGROUND:

On January 23,1998, the State of Ohio submitted a draft of its forthcoming request for an Agreement with the Commission pursuant to Section 274b of the Atomic Energy Act.

Subsequently, on July 31,1998, the formal request for an Agreement by Governor Voinovich was received. The staff has conducted a review of the draft pursuant to the Commission policy statement " Criteria for Guidance of States and NRC in Discontinuance of NRC Reaulatorv Authority and Assumotion Thereof by States Throuah Aareement" (46 FR 7540, as amended by 46 FR 36969 and 48 FR 33376). The staff has also considered whether the proposed Ohio /

program meets the criteria set out in the Policy Statement on Adequacy and Compatibility of Agreement State Programs and associated implementing procedures.

2'i One element (see the Policy Statement on Adequacy and Compatibility of Agreement State Programs for explanation of the term " element") of the proposed Ohio program concerning decommissioning actions has been identified as differing from, and possibly being inconsistent 9

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! The Commissioners 2 l with, the equivalent NRC materials program element. Under the proposed Ohio program, a l materials license would be terminated only if the residual contamination at the licensed site were reduced sufficiently to meet the criteria for unrestricted release. Under NRC's program, a license could also be terminated under restricted conditions at a site that does not meet the criteria for unrestricted release, provided the additional regulatory requirements in 10 CFR 20.1403 or 20.1404 were met.

In 1995, the Ohio General Assembly enacted into State law the then current NRC definition of the term " decommissioning," which envisioned license termination only if the licensed site was decontaminated to levels permitting release for unrestricted use (i.e., the site would be suitable for future use without restrictions for purposes of radiological protection). Ohio interprets this statutory definition to effectively prohibit the termination of a licen.se for a site with residual contamination greater than that acceptable for unrestricted release. Staff provided comments to Ohio on the draft legislation on March 20,1995, recommending adoption of the NRC definition in effect at the time.

On July 21,1997, NRC published the final rule on Radiological Criteria for License Termination (Subpart E of 10 CFR Part 20), which amended NRC's definition of decommissioning to include license termination under restricted conditions. Ohio is in the process of adopting the requirements of subpart E by reference, except for the single provision in s20.1403 for license termination under restricted conditions. In place of license termination with restrictions, the Ohio program would convert a materials license to a special" decommissioning-possession only" license to be consistent with State law. Ohio is adopting all of the requirements for license termination in $20.1403, (e.g., institutional controls, financial assurance, and public participation) and would apply those requirements to the license conversion process. Ohio is also adopting 620.1401(c) by reference, along with a requirement that the provisions of

$20.1401(c) be incorporated into each " decommissioning-possession only" license, through a specific license condition therein.

The NRC license termination rule became effective for NRC licensees on August 20,1997, and was assigned to compatibility division 2 (see below) under the Office of State Programs (OSP)

Internal Procedure B.7 in effect at the time in September 1997, the Commission implemented the new policy on Agreement State compatibility, and a revised B.7 Procedure. The rules in Subpart E have been assigned to compatibility category C (see below) under the new policy and revised procedure.

DISCUSSION:

1. Criteria for Compatibility Category C in the Policy Statement on Adequacy and Compatibility of Agreement State Programs, (compatibility policy) published September 3,1997 (62 FR 46517), the Commission sets out five  ;

categories into which program elements, such as regulations, should be assigned. The l

! categories correlate generally to the potential for differences between the Agreement State 1 regulation, or other program element, and the equivalent NRC regulation or other program

( element to create a conflict, duplication, gap or other condition that would jeopardize an orderly  ;

pattern in the regulation of materials on a nationwide basis, or endanger public health and safety.

i The Commissioners 3 in category C, the policy addresses the set of regulations and program elements which are needed to maintain an orderly pattern, but which States do not need to adopt in language that is

" essentially identical" to the language in the NRC regulations and program elements. The policy specifies that, for category C, the equivalent Agreement State regulations and program elements should embody the essential objectives of the corresponding NRC regulations and program elements to avoid conflicts, gaps or duplication in the regulation of byproduct material on a nationwide basis. Category C, like Division 2 under the former Commission policy, allows the Agreement States flexibility in language and the option to adopt a different, or more stringent requirement, but does not allow Agreement States the option to adopt requirements that are substantively less stringent.

2. Agreement State Compatibility Requirements for the Radiological Criteria for License Termination Rule (10 CFR Part 20, Subpart E)

In the Statements of Consideration for Subpart E, the Commission noted:

"because the dose criterion in the rule is not a " standard" in the sense of the public dose limits of 10 CFR Part 20 but is a constraint within the public dose limit that provides a sufficient and ample margin of safety below the limit, it is reasonable that the rule would be a Division 2 level of compatibility under the current policy. This means the Agreement States would be required to adopt the regulation but would have significant flexibility in languago, and would be allowed to adopt more stringent requirements."

The Statements of Consideration indicated that, until the new compatibility policy became effective, the NRC wou!d continue to apply the then current Agreement State compatibility policy. The new policy has now been adopted, under which the rule has a Category C designation. However, as indicated in the Statements of Consideration, the original Division 2 compatibility designation and the subsequent Category C designation primarily addressed the dose criterion of Subpart E. Specific compatibility discussions for the remainder of Subpart E were not addressed in the Statement of Consideration. Staff, in accordance with the guidance in Management Directive 5.9, and following review by the Agreement States (All Agreement States Letter SP-97-067, September 15,1997) has designated these provisions as Category C in the OSP Internal Procedure B.7 rule tables (All Agreement States Letter SP-98-071, August 18,1998). Staff also notes that in good faith Ohio adopted NRC's previous definition of decommissioning into State legislation.

3. Is Ohio's Proposed Approach to Decommissioning under Restricted Release Conditions Compatible with NRC's Approach?

To assist in evaluating this issue, staff requested further information from Ohio to determine the basis and significance of any differences between the NRC and Ohio programs (see Attachment). Ohio's response indicates that the only area of difference relates to sites which l

qualify for NRC license termination under restricted release conditions, in such cases, under the proposed Ohio program, the license would be converted to a " decommissioning-possession only" license, rather than terminated. Staff believes that while issuing such a license is different and more stringent than the restricted release / license termination approach established in

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The Commissioners 4 620.1403, the Ohio approach appears to have an end result that would result in potential regulatory conflicts in only a limited number of decommissioning licensing actions.

NRC regulations in Subpart E establish three basic approaches for decommissioning and license termination: a) license termination without restrictions at sites where the residual contamination meets the constraint requirements of 20.1402; b) license termination under restricted conditions at sites where the residual contamination meets the constraint I

requirements of @20.1403; and c) license termination under alternate constraint criteria as provided for in 20.1404. NRC has also recognized that in some cases continued licensing may be necessary. (SECY-97-046A, page 6, end of first paragraph)

The Ohio program has adopted 920.1402 by reference, thus staff concludes that for sites meeting the Ohio requirements for unrestricted release, the actions of the Ohio and NRC programs would be equivalent. In Ohio, as for NRC, license termination under conditions of l unrestricted release is expected to be the approach followed for the majority of licenses. In addition, in the unusual case where NRC would continue a license in effect after decommissioning, staff concludes the Ohio and NRC programs would be equivalent.

However, in those few cases in which decommissioning involved restricted use, the proposed Ohio program would convert the license to a " decommissioning-possession only" license. As described in the Ohio letter (page 5, bottom paragraph), the " decommissioning-possession only" license would be issued only if the licensee met the appropriate requirements of 620.1403 or 20.1404.

Staff has outlined below, based on Ohio's June 26,1998, letter the approach Ohio would follow in cases of restricted release.

1. The licensee must determine that 25 millirem as distinguished from background for residual activity cannot be met in a plan that the Director (of the Ohio Department of Health) has received and approved.

2. The licensee submits a plan to the Director proposing a decommissioning plan that addresses the provisions of 20.1403. The licensee must demonstrate to the satisfaction of the Director that:

(a) Further reductions in residual radioactivity would result in net public harm; (b) The licensee has developed a plan for institutional controls at the site so that the TEDE will not exceed 25 millirem as distinguished from background with sufficient financial assurance for an independent third party acceptable to the Director to conduct control and maintenance of the site with funds from a financial instrument acceptable to the Director; (c) The decommissioning plan must indicate that any transfer of ownership or control of the land or a portion thereof which is subject to restrictive conditions must be acceptable to the Director. The Director will find transfer acceptable if the person

1 The Commissioners 5 l

receiving ownership or control of the property that is subject to restrictive conditions assumes the decommissioning-possession only license and the provisions therein; (d) The licensee must demonstrate to the Director that the licensee has met with members of the community and that the licensee l has provided reasonable assurance that the institutional controls I and financing of the institutional controls proposed by the licensee will be maintained.

3. The licensee may propose to decommission the facility or any portion of the facility to a level that exceeds 25 millirem TEDE distinguishable from background up to 100 millirem, or in exceptional circumstances 500 millirem, by meeting the provisions of @20.1404.

4. Under paragraphs 2 and 3, after the licensee satisfies all of the decommissioning plan provisions, the Director, pursuant to a request for a license amendment, will issue a decommissioning-possession only license under the authority of OAC 3701-39-021 which incorporates the provisions of the decommissioning plan.

Staff has identified two impacts of the difference between the NRC and Ohio approach. First, for short-lived radionuclides the " decommissioning-possession only" license would remain in effect only until the residual contamination at the site was reduced to the level acceptable for unrestricted use. However, for long-lived radionuclides, such as uranium and thorium, the license would become essentially perpetual. Secondly, the site license would likely be perceived as an encumbrance to a site owner and could impact the marketability of such a site.

The restrictive provisions in the NRC's restricted release approach would also likely be viewed as encumbrances that could affect the marketability of the site, though to a lesser degree than a perpetuallicense with attendant conditions and long-term license fee obligations. From a licensee's perspective, these two impacts would prevent an Ohio licensee, using the restricted release decommissioning approach, from achieving the same level of finality that can be achieved inrough application of NRC's regulation. A third impact, potentially applicable to NRC's specific licensee, Shieldalloy, is discussed below.

The Ohio approach raises certain issues that should be noted by the Commission. Both NRC and Ohio appear to use a similar approach to imposing additional (post decommissioning) requirements on licensees or subsequent landowners. Under Ohio's proposed approach, the Director would not require any further decommissioning actions unless such actions were necessary to avert a significant threat to public health and safety. NRC's license termination rule is similar in that the Commission will require additional cleanup only if, based on new information, it determines that the criteria of subpart E were not met and residual radioactivity at the site could result in a significant threat to the public health and safety. Accordingly,in either case, the regulatory agency will employ essentially the same standard for imposing additional j requirements on the. licensee or subsequent landowner. As such, in practice, the finality l

afforded by the Ohio approach with regard to the imposition of additional requirements in the future is not significantly different from that of NRC's rule.

l The Commissioners '6 The Ohio rules also impose more stringent requirements for the transfer or sale of the site after l decommissioning because the Director must approve subsequent sales. The approval serves substantially the same purpose that the deed restrictions and other institutional controls would serve in the NRC context under @20.1403. However, Ohio's requirements may make the sale of the land more difficult in some circumstances. In addition, under Ohio's approach, the licensee may be required to pay additionallicensing fees over the course of the license. It is unclear whether this is a significantly different burden beyond the financial assurance requirements imposed by $20.1403 of the Commission's regulations.

i White, on its face, Ohids approach appears to be different in several respects from the NRC  !

rules in terms of finality, as discussed above, the differences may not be as significant as they appear at first glance. In those cases invoking a restricted release scenario, however, it is clear that Ohio's approach will involve the imposition of more stringent requirements than that of NRC. In addition, if approved for Ohio, it is possible that the approach may be adopted by other Agreement States. Nevertheless, under the NRC rule's Category C designation, States may impose more stringent standards than those imposed by the Commission. The staff notes that in the statement of consideration for the decommissioning rule, the Commission expressed its preference for the unrestricted release of sites because restricted release requires additional precautions or limitations on the use of land at the end of a licensee's operations (62 FR 39069). To the extent that Ohio's approach is more stringent, it will provide additional disincentive to licensees who are considering the option of restricting the future use of their sites. At the same time, Ohio's approach is not so stringent as to preclude the option altogether. As such, the staff believes that Ohio's approach is consistent with the Category C designation and Ohio's approach should be found compatible with that of NRC, Staff also examined whether the approach adopted by Ohio could lead to a situation in which a single entity, holding separate licenses, one from Ohio and the other from NRC, could be subjected to significantly different decommissioning requirements. One NRC licensee, Shieldalloy Metallurgical Corporation, has a site in Ohio which would transfer to State jurisdiction under the proposed Agreement and another site in New Jersey which would remain under NRC jurisdiction. Both sites are contaminated with uranium, thorium, and their decay products in slag resulting from ferroalloy production. The licensee has discontinued licensed operations in Ohio, but continues operations in New Jersey. Staff has prepared a draft environmentalimpact statement for the Ohio site, NUREG-1543, which was completed prior to the adoption of Subpart E. However, the licensee has not submitted a proposed decontamination and license termination plan, and staff has not evaluated in detail the possible termination of the license under Subpart E. Staff does not believe there will be significant differences in the decommissioning requirements applied to these sites resulting from the transfer of the Ohio site to the Ohio Agreement State program. From the licensee's perspective, the termination of their license may be an important nieasure of finality. If the restricted release option were to be chosen by Shieldalloy for both their Ohio and New Jersey sites, their license for the New Jersey site could possibly be terminated without significant offsite disposal costs. On the other hand, if Shieldalloy seeks to decommission its Ohio property for restricted future use, it would have to maintain a possession only license at the site.

While the proposed Ohio requirements may be more burdensome to a certain degree, the two sites will require consideration of specific conditions at each site which would, in any case, preclude a uniform (i.e.,"one size fits all") approach to decommissioning. Consequently, Ohio's

The Commissioners 7 rules do not appear to create a significant burden on the licensee related to the firm's ability to conduct its activities from State to State.

RECOMMENDATION:

The staff recommends that the Commission approve the staff position that the Ohio approach to decommissioning under restricted release conditions does not create a significant regulatory conflict and, therefore, is compatible with NRC's program. This recommendation recognizes that Ohio adopted NRC's 1995 definition of decommissioning through legislation, and that Ohio's approach is not inconsistent with the Commission's position in promulgating NRC's license termination rule that States could impose more stringent standards, i.e., that the rule should be designated Category C. This recommendation is based on the staff assessment that most licensees in Ohio, and possibly all licensees in Ohio, will decommission to unrestricted release conditions. Thus, at most, a few licensees will be required to possess an Ohio decommissioning-possession only license. Further, the likelihood that Shieldalloy will face different decommissioning finality end-points for its sites in Ohio and New Jersey is unknown at this point, since the decommissioning plan for the Ohio site has not been developed and the New Jersey site continues to operate. Staff has not identified any other licensee in Ohio that faces the possibility of having two sites that would have to satisfy different regulatory requirements for restricted release.

COORDINATION:

The Office of the General Counsel has reviewed this paper and has no legal objection, k ~

?. oseph Calian cutive Direct for Operations

Attachment:

Letter dated June 26,1998 from R. Suppes to R. Bangart Commissioners' completed vote sheets / comments should be provided directly to the Office of the Secretary by COB Wednesday, September 23, 1998.

Commission Staff Office comments, if any, should be submitted to the Commissioners NLT September 16, 1998, with an information copy to the Office of the Secretary.

If the paper is of such a nature that it requires additional review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.

DISTRIBUTION:

Commissioners OCA OGC CIO OCAA CFO OIG EDO OPA REGION III SECY

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OHlo DEPARTMENT OF HEAL.TH 2nu me mm V oicaciv vow owes co J ."a'dTo!ll' WILUAM iVAN u.n. twn nasa o..o e m.s Mr. Richard L. Bangart, Director June 26,5998 Office of State Programs I

United States Nuclear Regulatory Commission Two White Flint Rockville, Maryland RE: Response to NRC Staff Issues; Ohio Law Deflaition of Decominissioalag and R.C. 3748.10 1

Dear Mr.Bangart:

I am writing in response to your letter dated June 18,1998, regarding your ongoing review of the draft request by Ohio Govemor Voinovich for an agreement between the Nuclear Regulatory j

' Commission (NRC) and the State of Ohio, in that letter, you identified two issues relative to Ohio I law which you indicated require you to seek guidance from the Commission. Specifically, you mentioned your concem about Ohio's definition of the term " decommissioning" as set forth in R.C.

3748.01, and R.C. 3748,10 which requires a license for disposal ofcertain radioactive wastes. You have asked the Ohio Department ofHealth (Ohio) to provide a response to several questions on these two specified issues of Ohio law. This letter repitsents the policy and legal positions of Ohio relative to Ohio law on decommissioning and license termination. Ohio will respond to your >

staffing concems in a separate letter.

By way of background, on November 16,1994, the Ohio General Assembly first introduced legislation to allow the State of Ohio to pursue an agreement with the NRC pursuant to 274(b) of the  !

Atomic Energy Act of 1954. At that time, Ohio requested and NRC completed a review of this i enabling legislation as it was introduced. The definition of" decommissioning" that is egntained in 4 R.C. 3748.01 which you raise as an NRC concem in your letter, is the exact definition that NRC I urged Ohio to adopt. In a letter dated March 20,1995, NRC staff recommended to Ohio that the Ohio legislation define the term " decommission" as it was defined in 10 CFR Part 30.4 at that time, and further, that "the definition murt be changed for the State to have a compatible program" (emphasis added).

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ATTACHMENT l

Mr. Richard L. Bangart June 26,1998 Page 2 dermition of" decommissioning" even Of note, NRC instructed Ohio to adopt the R.C. 3748.01 though NRC had already proposed amending the amended definition of that term to allow lice dermition of with restricted release. NRC briefed the Commission on the

" decommissioning" on June 6,1994 (Commission Briefmg), approximately nine monthsprior to recommending that Ohio adopt the R.C. 3748.01 defmition of" decommissioning". Ohio h every effort to keep NRC staff appraised of developments in Ohio's several year long pro towards agreement application. Ohio is concemed that NRC has failed to raise until th long agreement application process Ohio's statutory definition of the term " decommis an area of such NRC concern that it may preclude Ohio from achieving an agreement.

Ohio believes that R.C. Chapter 3748 and Drafi Rule 3701-39 021 of the Ohio Administrat (OAC) provide a program for regulation of radioactive materials that is both adequa compatible with the NRC program. Specifically, Ohio law provides for the essentia the current NRC radiological criteria for decommissioning as articulated by Commission Ch Selin at the June 6,1994, Commission briefmg; that is, a site management decommissioni that provides "almost more important than the standard," the characteristic offinality.

The essential objective of fmality is evident in the discussion on the radiological criteria for termination fmal rule (published in the Federal Register July 21,1997 (62 FR 39057 at pag (Final Rule Discussion) relative to discussions about the provisions of 10 CFR 20.14 Commission further considered the difference between the definition of" decommissioning previously existed and as adopted by Ohio versus the recently adopted dermition of that by the NRC. It was stated that "the Commission continues to believe that ' decomm term for a process which ultimately leads to termination of an NRC licensefor unrestricted (emphasis added) (62 FR 39057 at page 39084)."

Throughout the Commission Briefmg and Final Rule Discussion, the NRC maintaine fmality for the licensee as the essential objective of the Subpart E license termination the licensee will not be required to perform additional remediation in the future so long as t Ohio law residual radioactivity does not result in a significant threat to public health and safety.

adopts the essential objective of Subpart E by providing the same level of fmality to the even in cases where a licensee seeks decommissioning with a restricted use.

Ohio law relative to the process of decommissioning is both adequate and compatible to the  !

On the issue of compatibility of the term " decommissioning", the Subpart E regulations.

Commission found it " reasonable that the rule would be a Division 2 level of compatibility u the current policy," requiring Agreement States to adopt the regulation, but allowing "sign Itiswithin flexibility in language" including "more stringent requirements" [62 FR 39079-39080].

the context of this background that Ohio responds to the questions set forth in your letter o 1998.

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i Mr. Richard L. Bangart June 26,1998 Page 3 3 Your first issue raised the concern that R.C. 3748,10 " appears to prohibit the termination of a j radioactive materials license under restricted conditions in cases where such termination would be

! permitted under the provisions of 10 CFR 20.1403." R.C. 3748.10 is not relevant to the issue of j decommissioning e.nd license termination. R.C. 3748.10 does not prohibit termination oflicenses.

t R.C. 3748.10(B) merely states that any person that performs a task such as disposing, recycling, l treatment, etc. must do so under a license. R.C. 3748.10 does not preclude the ternunation of a

. license once that task is complete, nor does it preclude termination of a license for a facility where radioactive material was dispcsed. Iflicense termination is desired, the licensee would be required 3

to develop a decommissioning plan in accordance with 10 CFR 20.1403. If the decommissioning I

! plan includes disposal of radioactive material that results in a TEDE to an average member of the l t critical group for residual radioactivity ofmore than 25 millirem as distinguished from background, i l then the decommissioning would proceed under restricted release criteria in accordance with the 10 i CFR 20.1403, except that the license would be amended to a decommissioning-possession only l li:ense in accordance with draft OAC 3701-39-021 rather than being terminated. If the l

decommissioning plan includes disposal of radioactive material that results in a TEDE to an average j member of the critical group for residual activity of 25 millirem or less as distinguished from q background, then the decommissioning would proceed towards license termination. l l

". The remainder of your questions are set out as they appear in your letter, with Ohio's response '

following.

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'(1)(a) Please describe howyou expect the use ofthis license approach to compare to the

) NRCapproach ofusing institutionalcontrols to enforce restrictions onfuture use l in meeting the dose constraints ofSubpart E.

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The Ohio " decommissioning-possession only" license approach is no different than the NRC approach of utilizing institutional controls, deed restrictions, and financial assurances, except that the decommissioning-possession only license is issued as an amendment to the existing license in the case where unrestricted use cannot be achieved under 10 CFR 20 Subpart E. Like the NRC approach, the licensee prepares a decommissioning plan. The plan must address the items found in 10 CFR 20 Subpart E and OAC 3701-39-021(K). It is emphasized that except for the definition of the term " decommissioning", which is a " level C" compatibility, Ohio is adopting Subpart E in its entirety through incorporation by reference.

'Ihe NRC has identified two categories for the release of a licensed facility- restricted release and unrestricted release. An NRC license may be terminated if a facility meets the criteria for either of these categories based upon the TEDE. As stated previously, the Commission believes that

' decommissioning' is a term for aprocess which ultimately leads to termination of an NRC license for unrestricted use (emphasis added)." Ohio has adopted a decommissioning process that incorporates the provisions of Subpart E in all respects, except that the licensee, in the case of residual radioactivity of a TEDE that requires restricted release, in addition to utilizing institutional

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.lMr. Richard L. Bangart June 26,1998 Page 4 controls, deed restrictions, and fmancial assurance, must apply for an amendment to the existing license and obtain a decommissioning-possession only license. If, at any time in the future, the 1 decommissioning possession only licensee can meet the requirements of Subpart E for unrestricted release, the license will be terminated.

The license termination / decommissioning approach used in Ohio for a facility or portion thereof that i is seeking a restricted release is described as follows:

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i. The licensee must determine that 25 millirem as distinguished from background for residual activity cannot be met in a plan that the Director has received and approved.

ii. The licensee submits a plan to the Director proposing a decommissioning plan that addresses the provisions of 10 CFR 20.1403. The licensee must ,

demonstrate to the satisfaction of the Director that:

(1) Further reductions in residual radioactivity would result in net public harm; (2) The licensee has developed a plan for institutional controls at the site so that the TEDE will not exceed 25 millirem as distinguished from background with sufficient financial assurance for an independent third party acceptable to the Director to conduct control and maintenance of the site with funds from a fmancial instrument acceptable to the Director; (3) The decommissioning plan must provide a provision that any transfer of ownership or control of the land or a portion thereof which is subject to restrictive conditions must be acceptable to the Director.

The Director will find transfer acceptable if the person receiving ownership or control of the property that is subject to restrictive conditions assumes the decommissioning-possession only license and the provisions therein; (4) The licensee must demonstrate to the Director that the licensee has met with members of the community and that the licensee has provided reasonable assurance that the institutional controls and financing of the institutional controls proposed by the licensee will be maintained.

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Mr. Riche Bangart June ?.6,1M Page 5

! iii. The licensee may propose to decommission the facility or any portion of the

! facility to a level that exceeds 25 millirem TEDE distinguishable from background up to 100 millirem, or in exceptional circumstances 500 millirem, by meeting the provisions of 10 CFR 20.1404.

{ iv. Under paragraphs il and iii, after the licensee satisfies all 'of the

. decommissioning plan provisions, the Director, pursuant to a request for a license amendment, will issue a decommissioning-possession only license

, under the authority of OAC 3701-39-021 which incorporates the provisions j of the decommissioning plan.

i l The approach described above is consistent with the provisions of 10 CFR 20 Subpart E. The Ohio l approach varies from Subpart E only in that after completing the decommissioning plan the licensee

{ must maintain a license (in this case a decommissioning-possession only license) for any portion of the facility that has residual radioactivity that fxceeds the 25 millirem TEDE distinguishable from background.

(1)(b) Please describe how the provisions of $20.1401(c) would apply to a

" decommissioning-possession only" license, since the text ofthe rule (proposedfor adoption in Ohio by reference) addresses only terminatedlicenses.

This issue in your letter speaks to requiring further clean-up of a site in comparison with 10 CFR 20.1401(c). Draft amended OAC 3701-39-021 does not only address terminated licenses, but also addresses a facility that wishes to cease a licensed operations under a restricted release scenario.

Paragraph (K) of draft OAC 3701-39-021 provides that "...the license will contain a condition that the Director will not require further clean-up unless he or she determines that residual activity will result in a significant threat to public health and safety (emphasis applied)." The license referred to in this language is a decommissioning-possession only license. Although a license would exist, the language provides the essential characteristic of finality under Subpart E by requiring the Director to include as a condition in the decommissioning-possession only license the referenced language that provides finality for the licensee. Therefore, the result is consistent with the provision of 10 CFR 20.1401(c) and provides a sense of finality for the licensee (for further discussion, please see page seven of the "ODH Guidance Policy for License Termination and Decommissioning of Facilities Contaminated with Radioactive Materials," dated May 13,1998).

In order for Ohio to issue a decommissioning-possession only license, the licensee must meet the requirements of 10 CFR 20.1403 to 20.1404. The requirements of these two parts are incorporated as conditions into the license amendment resulting in a decommissioning-possession only license.

The financial assurance provisions, input from the local community, deed restrictions and,

• 1 Mr. Richard L. Dangad June 26,1998 Page 6~

importantly, oversight by a third party or governmental operation are all incorporated as terms i the license, with the level ofinstitutional control being dependant upon site specific conditions.

Pursuant to the decommissioning possession-only license, periodic monitoring would be provided by the Ohio Department of Health. It is emphasized that the Ohio policy and regulations provide fo l

all the same opportunities as the NRC regulations plus contemplates a license document to assure l compliance. Ohio believes that the provisions of a license are easier to apply than solely deed j restrictions, maintenance agreements, or third party inspections without added significant cost to a decommissioning possession-only licensee that complies with the terms of the license.  ;

(1)(c) Please describe how the Ohio program of a " decommissioning-possession only" licenseprovides at least the same levelofpublicprotection (durability) as the NRC program. This description should especially address the potential that the existence of a viable licensee may cease at afuture date.

The Ohio program of a" decommissioning-possession only" license provides at least the same level ofpublicprotection(durability)astheNRCprogram. TheOhioapproachutilizesalltheprotections of the NRC approach, such as institutional controls, deed restrictions, public participation and '

financial assurances, except that the controls, restrictions and assurances are further contained as conditions in the decommissioning-possession only license. The " potential that the existence of a viable licensee may cease at a future date"is of no greater concern under Ohio regulation than that provided by the NRC under Subpart E. Any necessary long term oversight ofinstitutional controls I

in a restricted release facility is accomplished through financial assurance. As stated in the Commission Briefing by an NRC staffmember relative to financial assurance requirements (which Ohio has adopted by reference) as a method ofinsuring future available resources:

"Perhaps you want someone to go in and look at the fences every year or something. That once again would be site specific and would have to be part of the proposal. In this mode ofoperation you would no longer have a licensee to go to, so you would be looking for some sort of established assurance so that whoever needed to go in and do those activities would have the resources to do so."

Because Ohio has adopted all protections offered by the NRC regulations, such as financial assurances, controls, deed restrictions and third-pany input, Ohio has met the outcome envisioned 1

by the NRC regulations relative to public protection. These protections are further reiterated in the decommissioning-possession only license.

The durability of a decommissioning-possession only license rests in Ohio regulation and law

-which requires maintenance of the license by thr. owner or occupant of the site in question. RC 3748.06 'which requires that "no facility shall handle radioactive material...for which licensure...is required by rules adopted under Section 3748.04 of the Revised Code unless the facility has

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l Mr. Richard L. Bangart i June 26,1998 I l

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} obtained a license" contemplates that there will always be a licensable entity. l 4 .

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i The decommissioning-possession only licensee ~would have been required to provide a fmancial 2 assurance instrument prior to approval of the decommissioning plan as specified by 10 CFR

} 20.1403(c). The fmancial instrument would be subject to the approval of the Director before any j i payment or dissolution of the instrument is authorized. Any dissolution that involves a facility )

l changing hands would be conditioned on the Director approving the viability of any new or j successor licensee. The estate of the facility would be responsible if there were no heirs. If the facility was a corporation, then the fmancial instrument of the facility would be used to provide for

continuity ofthe institutiorn! controls originally approved by the Directorif the corporation becomes  !

non-viable.

Since the license restrictions that are contemplated in 10 CFR 20.1403 will be utilized, the deed

. restriction, institutional controls and fmancial assurance provisions would also still be in place as j envisioned in 10 CFR 20 Subpart E. Therefore, the Ohio decommissioning-possession only

, licensing approach is consistent with and provides the same level ofassurance as that available under

the NRCregulations. -

l (1)(d) Since an Ohio license would not be terminated, what inducement would there be for an Ohio licensee toprovide equivalent assurance that the dose constraints will be met?

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$ The inducement for a licensee to comply with the dose constraints is that a decommissioning-l possession only license issued pursuant to a completed approved decommissioning plan provides i the licensee with the same future certainty and finality that the licensee would have under NRC regulation. The licensee's long term obligations such as maintenance and monitoring ofinstitutional I controls are clearly noted in the license. The license provides assurance to the licensee that Director will not require future additional remediation as so long as resid ual radioactivity does

not result in a significant threat to public health and safety.

I All fmancial assurances provided by the licensee are subject to the control of the licensor. It is in j the best interest of the licensee to proceed with decommissioning according to the plan approved by the Director so that fmancial instruments associated with the decommissioning can be released as j appropriate. For some licensees there will be the potential to release a site without restriction and i terminate the decommissioning-possession only license after a relatively short period of time,

, depending on the radionuclide involved and the extent of contamination. The costs of maintaining i financial instruments can be markedly reduced in this situation if the licensee moves forward with decommissioning in a forthwith manner, j Finally, if a licensee does not prepare and submit plans as required by Ohio law, the licensee is i

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Mr. Richard L. Bangart June 26,1998 Page 8 .

subject to administrative penalties, civil penalties, and cruninal penalties for failure to meet an order of the Director. RC 3748.17(A) provides the Director with authority to assess administrative penalties. RC 3748.18(B) provides for injunctive relief for failure to comply with an order of the Director. RC 3748.19 provides that the Director may request the Court of Common Pleas to issue ,

civil penalties in the amount of $10,000 per day. RC 3748.99 provides for criminal penalties ofnot less than $10,000 nor more than $25,000 per day. If the penalty is a second offense, the penalties are doubled. Therefore, there are suitable inducements to a licensee to move forward with decommissioning their facility here in Ohio.

(1)(e) Please describe how this rule would apply to an Ohio " decommissioning-possession only" licensee since the Ohio definition of decommissioning provides onlyfor license termination under unrestricted release?

The twenty-four month provision in 10 CFR 30.36(h) would be applied in the same manner as applied by the NRC. The licensee submits a plan. The plan is approved by the Director. The licensee completes the work proposed in the plan within twenty-four months unless an alternative is approved by the Director pursuant to 10 CFR 30.36(i). Rather than applying to terminate the license, the licensee applies for an amendment to their license to provide for a decommissioning-possession only license. Once issued,the decommissioning-possession only license is renewed every five years with the cost of renewal and inspection established as " full-cost" recovery. " Full-cost" recovery is the actual cost of staff review including indirect cost, travel, and any lab or contractual costs (see OAC 3701-38-021(P)].

Summarv ,

The provisions of 10 CFR 20 Subpart E have been assigned a level C compatibility. As such, Ohio must adopt the essential elements of the rule if Ohio's radioactive materials program is to be found adequate and compatible. Any differences in the NRC rule and the Ohio rule must be found to cause Ohio's program to be incompatible. Draft amended OAC 3701-39-021 adopts all of 10 CFR 20 Subpart E through incorporation by reference, except that the rule requires a decommissioning-possession only license if the licensee demonstrates that he or she cannot meet the unrestricted release criteria found in 10 CFR Subpart E. While this is different, the difference does not result in any gap or duplication. The provision is not in conflict with the NRC language since the licensee could comply with both methods in a very similar manner either in Ohio or in a NRC regulated state.

Moreover, the essential objective of the license termination standard is achieved and the criteria used by Ohio are the same as those used by NRC. The objective of f'mality is achieved since the provisions governing under what circumstances Ohio may later require additional clean-up after having approved a decommissioning plan are the same as those of NRC.

Ohio law meets the compatibility provisions ofcategory C, and no other compatibility issue has been i

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raised. Therefore, the Commission must find that Ohio's radioactive materials program is adequate and compatible.

If you have any questions regarding the information in this letter or I can provide further-clarification, please contact me at once at 614-644-2727.

Sin yours,

( Jcere RogerL. uppes Chief Bureau of Radiation Protection cc: William Ryan, Director Deborah Arms, Chief, Division of Prevention Lou Ellen Fairless, Assistant Director Jodi A. Govem, General Counsel 1

F GUIDANCE POLICY NMS-4001 l Rev.0 l

, Ohio Department of Health ,

BUREAU OF RADIATION PROTECTION ,

GUIDANCE POLICY FOR LICENSE TERMINATION '

AND DECOMMISSIONING OF FACILITIES CONTAMINATED WITH RADIOACTIVE MATERIALS Policy Guidance Directive Ohio Department of Health, Bureau of Radiation Protection Effective Date: 13 May 1998 This guidance is effective on the listed effective date for sources of radioactive material listed above and for all sources of radioactive material containing naturally-occurring or accelerator-produced radioactive material (NARM) and shall become effective for all radioactive materials including byproduct material, source material and special nuclear material in quantities that do not constitute a critical mass upon acceptance of the state of Ohio as an Agreement State by the U.S. NRC in accordance with the criteria of the Atomic Energy Act of 1954, section 274, as amended.

C SfYFR.IFJ.JCDf38 TDMINATION AND RDEDIATION WPD - RAD.MMM* AFT M.Rev 0

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GUIDANCE POLICY FOR LICENSE TERMINATION and l DECOMMISSIONING OF FACILITIES CONTAMINATED l WITH RADIOACTIVE MATERIALS L

TABLE OFCONTENTS Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 i

l Purpo se and Sc ope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 l, B ac k ground . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Discuss i o n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 l

License Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 I

l License Extension for " Decommissioning - Possession Only" . . . . . . . . . . . . . . . . . . . . . . . . . . 7 l Decommissioning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 i

l Decommissioning Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 l

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! Decommissioning Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 u

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Decommissioning Funding and Financial Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I 1 i

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' Implementing Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 l.

References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 I

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GUIDANCE POLICY FOR LICENSE TERMINATION and DECOMMISSIONING OF FACILITIES CONTAMINATED WITH RADIOACTIVE MATERIALS Introduction It shall be the policy of the Department of Health that all sites, facilities, buildings and outdoor areas (hereafter called facilities) that are licensed for the use, possession and handling of radioactive materials, including disposal of these materials, shall he subject to this Guidance Policyfor License i Termination and Remediation ofSites Contaminated with Radioactive Material. l This policy and guideline applies to:

• Agreement in Principal (AIP) sites;

• FUSRAP sites;

• CERCLA (NPL/Superfund) sites; I a UMTRCA sites;

• SDMP sites;

• Licensees of the State of Ohio for NORM /NARM; i

. Licensees of the U.S. NRC for byproduct materials; and l

- Other sites or facilities currently identified or identified in the future that do not meet one of the specific categories listed above.

This guidance is effective on the listed effective date for sources of radioactive matenal listed above and for all sources of radioactive material containing naturally-occurring or accelerator-produced radioactive material (NARM) and shall become effective for all radioactive materials including byproduct material, source material and special nuclear material in quantities that do not constitute a critical mass upon acceptance of the State of Ohio as an Agreement State by the U.S. NRC in accordance with the criteria of the Atomic Energy Act of 1954, section 274, as amenM -

Purpose andScope ,

This Guidance Policy provides the licensee with information relevant to compliance with the Ohio Revised Code that establishes requirements governing the closure, decontammation, decommissioning, reclamation and long-term surveillance and care of a facility licensed under this chapter and the rules promulgated thereunder and for the termination of a license for radioactive material as issued by the State of Ohio or the U.S. NRC to facilities within the State of Ohio.

. The criteria in this Consolidated Guidance policy applies to the decommissioni ng of facilities licensable under Chapter 3748 of the Revised Code. For licensed waste disposal facilities for the disposal of radioactive materials, the criteria apply only to ancillary surface facilities that support

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. GUIDANCE POLICY FOR LICENSE TERMINATION and DECOMMISSIONING OF FACILITIES CONTAMINATED WITH RADIOACTIVE MATERIALS radioactive waste dispost.1 activities. These criteria do not apply to uranium and thorium recovery facilities already subject to the rule 3701-39-021 of the Ohio Admmistrative Code or to uranium solution extraction facilities.

This policy does not apply to and no further action by the Department will be taken with respect to a facility which on the effective date of Ohio achieving agreement state status:

• has been decommissioned and the NRC license has been terminated; or

= is in the process of decommissioning pursuant to an approved NRC decommissioning plan, except that a " Decommissioning-Possession Only" license is required where residual radioactive material will exceed 250 microsieverts (25 millirem) per year as further specified in this policy.

Background

The remediation, or the cleanup and subsequent release of a facility where radioactive materials have been used, possessed or handled and where residual radioactive contamination exists is a major problem facing the State of Ohio. The generation, handling, and disposal of radioactive wastes are also an emerging issue. The Department is currently involved in these issues. Given the significant amount of agency oversight required on these issues, it becomes exceeding important for the Department to have guidelines and policies conceming the termination of a license for radioactive material following remediation of these facilities and the management ofradioactive wastes that may be generated during the remediation effort.

Department staff are involved in review and analysis of several clean-up proposals at facilities across Ohio, such as Femald, Mound, Portsmouth Gaseous Diffusion Facility, Shellwell, BP Lima, Advanced Medical Systems (AMS), and Shield-alloy. In several circumstances, these facilities have used on-site remediation (disposal) which will require long-term monitoring and will preclude the termination of all licenses for radioactive materials for a long period of time.

Ohio has a number of facilities included in the U.S. NRC Site Denmmiaioning Management Plan (SDMP). As a point of fact, Ohio has more of these facilities than any other state. These facilities l

require a substantial investment of resounes by C+ ucat staff as NRC proceeds on clean up and release of these facilities. Again, on-site remediation has been used as a frequent means of disposing of the residual radioactivity on these facilities. Since NRC is the current regulator of these facilities, Page 2 of 13 c manucnenn uma noam== -ano.mmwn m. .

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GUIDANCE POLICY FOR LICENSE TERMINATION and DECOMMISSIONING OF FACILITIES CONTAMINATED WITH RADIOACTIVE MATERIALS l.

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the resolution of the decontamination and decommissioning plan is of vital interest to the l Department.

Formerly Utilized Sites Remediation Action Plan or FUSRAP forms another category of l contaminated sites requiring decontamination and decommissioning in Ohio. These facilities sometimes served as contractors for actions associated with activities of the " cold war" years.

Although several of these facilities have been decontaminated through funding provided by the l Department of Energy there are still remaining locations in Ohio.

l A final category of facilities are those which have been abandoned where radioactive contamination

is discovered years after a facility may have disposed of sources of radioactive material and waste on their property, discarded the radioactive materials or transferred radioactive material in an inappropriate manner.

In all cases noted above, Bureau of Radiation Protection professional staff must conduct investigations which may or may not involve site visits, environmental sampling and sample analysis l

i and risk assessments. Sometimes, there is a result that requires an action on the part of the Department to insure that decontammation of the facility occurs and that no health and safety problem results from the contamination.

L Discussion Chapter 3748 of the Revised Code became effective September S,1995. This statute, known as the

" Radiation Control Act," and the rules promulgated thereunder, provide for:

- Ohio to progress with plans to become an Agreement State through the criteria offered in the Atomic Energy Act of 1954, section 274, as amended. This status of Agreement State will l

allow for the State of Ohio to assume the regulatory oversight, including the licensing and inspection of facilities, with respect to byproduct material, source material, and special nuclear material in quantities not sufHelent to form a critical mass, and the disposal of low-level radioactive waste.

a the Department to serve as the Ohio Radiation Control Agency;

! = the identification, circumstances of possession, use or disposal of sources of radiation, and

' levels of radiation that constitute an unreasonable or ta=== y risk to human health or the environment; a establishing requirements for the achievement and maintenance of compliance with standards for the receipt, possession, use, storage, installation, transfer, servicing and disposal of m m . . Page 3 of 13 c musucun naumm w2 amamnow m .nno.mn i

GUIDANCE POLICY FOR LICENSE TERMINATION and DECOMMISSIONING OF FACILITIES CONTAMINATED WITH RADIOACTIVE MATERIALS sources of radiation, and levels of radiation that constitute an unreasonable or unnecessary risk to human health or the environment;

• establishing requirements governing closure, decontamination, decommissioning, reclamation and long-term surveillance and care of a facility licensed under this chapter and the rules promulgated thereunder;

- no facility shall be released for unrestricted use to the general public if that facility has residual radioactivity in such concentrations that a Total Effective Don Equivalent of 250 microsieverts (25 millirem) per year above background is exceeded.

Currently, Ohio has recognized and identified numerous facilities no longer in operation, in reduced operation, or that have been abandoned that are contaminated with radioactive materials. Some of these facilities are currently on the National Priorities List (NPL); some held US NRC licenses previously and used byproduct materials, source materials and special nuclear materials at these facilities; some have been involved in activities under the direction of the former U.S. Atomic Energy Commission (now the Department of Energy) and other uses, nese facilities, no longer in operation, or in reduced operations or that have been abandoned, require activities to remove the residual radioactive material from the facilities. The removal of residual radioactivity is called remediation and is a part of the larger overall program called decontamination and

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decommissioning. His Guidance Policy will proWe guidelines to those facilities where remediation activities are now required or may be initiated at a future time.

L Decommissioning activities are initiated when a licensee decides to terminate licensed activities.

Decommissioning activities do not include the removal and disposal of spent fuel, high-level i radioactive wastes, or nuclear wastes as defined by the Low-level Radioactive Waste Policies Amendment Act of 1985, as amanM nese activities do not include the removal and disposal of non-radioactive structures and materials beyond that necessary to terminate a license. In accordance with Division (D) of section 3748.01 of the Ohio Revised Code, demmissioning does not include l the reduction of residual radioactivity to a level that permits release of the facility for unrestricted use with regard to the disposal oflow level radioactive waste or a byproduct material as defined in l

Section 11(c)(2) of the Atomic Energy Act of 1954 (UMTRCA) materials.'

ne NRC has identified two categories for the release of a licensed facility - Restricted Release and i Unrestricted Release. A license for the US NRC may be terminated if a facility meets the criteria j for either of these two categories based on Total Effective Dose Equivalent. The criteria for these

' 3748.01(D)* Ohio Revised Code l c omunxwu mmunow e nnounow = - ano . mmun . . . Page 4 of 13 l

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.. i GUIDANCE POLICY FOR LICENSE TERMINATION and DECOMMISSIONING OF FACILITIES CONTAMINATED WITH RADIOACTIVE MATERIALS l

l releases are found in Subpart E of Title 10 Code of Federal Regulations Part 202 . The State of Ohio does not provide for the Restricted Release of any licensed facility based on the definition of

" Decommissioning" found in Division (D) of Section 3748.01 of the Ohio Revised Code. A.

facility requesting license termination must meet the criteria of 250 microsieverts per year (25 millirem) Total Effective Dose Equivalent'. Any facility that exceeds this criteria will not have its license terminated but wili have the license amended in its entirety to a " Decommissioned -

Possession Only" license *.

License Termination l

Applicants for licenses, other than renewals, after the effective date that Ohio achieves agreement state status, shall describe in the application how facility design and procedures for operation will l minimize to the extent practicable contamination to the facility and the environment, facilitate eventual decommissioning, and minimim, to the extent practicable, the generation of radioactive l waste s, 1

A license issued by the State of Ohio expires at the :nd of the day on the expiration date stated in the license unless the licensee has notified the director in writing that the license shall be renewed'.

Notification for renewal is required for all licenses on farms provided by the director and shall be filed ninety (90) days prior to its expiration date, e.v.c<spt for Broad Scope licenses which must be filed one hundred and eighty (180) days prior to its expiration date'.

A license issued by the Director will continue in effect, beyond the expiration date if the Director deems necessary, until the Director notifies the licensee that the license is terminated. Durmg this l time the licensee must limit handling of the radioactive material to decommissioning activities and 2 Subpart E, Title 10 Code of Federal Regulations Part 20 3 3701-39-021(J)(proposed for adoption) 1

• 3748.04(I)(2) 5 10CFR20.1404(a)

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. l GUIDANCE POLICY FOR LICENSE TERMINATION and DECOMMISSIONING OF FACILITIES CONTAMINATED  ;

WITH RADIOACTIVE MATERIALS 1

control entry to restricted areas until deemed suitable for release by the Director.

A licensee of the State of Ohio who has decided to permanently terminate activities involving licensed radioactive material at a facility that contains residual radioactivity such that the facility is unsuitable for release in accordance with State of Ohio criteria and who wishes to terminate a license for these activities must notify the director in writing of the desire to termmate the license.

This notification should be received by the director no less than ninety days prior to its expiration '

date, except for Broad Scope licenses which must be filed one hundred and eighty (180) days prior to its expiration date'.

A license which has been requested to be terminated continues in effect, beyond the expiration date if necessary, with respect to possession of radioactive material until the director notifies the licensee in writing that the license is termin*d. During this time, the licensee should limit actions involving radioactive material to those related to decontamination and decommissioning, and continue to control access to areas where radioactive material or residual radioactivity is present until these areas are suitable for unrestricted release in accordance with State of Ohio criteria'.

I Within 60 days of the occunence of any of the following, each licensee shall provide notification to the director in writing of the occurrence, and shall either begin decommissioning its facility, or any I

separate building or outdoor area that contains residual radioactivity so that the building or outdoor area is suitable for release in accordance with the requirements of Chapter 3748 of the Revised Code, or submit a decommissioning plan within 12 months of notification and begin decommissioning upon approval of that plan if-t

• The license has expired; or

• ne licensee has decided to permanently cease principal activities, as defined above, at the i

entire facility or in any separate building or outdoor area that contains residual radioactivity l to the extent that the facility is unsuitable for release, e.g., would require restricted release or license continuation in accordance with the requirements of Chapter 3748 of the Revised Code; or

• No principal activities specified in the license have been conducted for a period of 24 months i

at the facility; or l

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l GUIDANCE POLICY FOR LICENSE TERMINATION l and DECOMMISSIONING OF FACILITIES CONTAMINATED WITH RADIOACTIVE MATERIALS i

t No principal activities have been conducted for a period of 24 months in any separate building or outdoor area that contains residual radioactivity such that the building or outdoor l area is unsuitable for release in accordance with the requirements of Chapter 3748 of the l Revised Code

A licensee may request that a license be termin*M by the director at any time after issuance by the

! State of Ohio. Prior to termination of that license, the department staff under the decommissioning section, will conduct comprehensive surveys and monitoring to ensure that residual radioactivity on j the facility meets the decommissioning criteria for unrestricted use listed below.

License Amendment for Decommissioning - Possession Only A license will not be terminated unless the licensee has decontammated the facility, buildings or outdoor areas to a point where residual radioactive material is less thcn 250 microsieverts (25 millirem) per year above background. In this event, the license for the use and possession of I radioactive materials at the facility will. be amended in its entirety to " Decommissioning - Possession Only.

If the licensee detennines, with the concurrence of the director, that following decontamination of l the facility, further reductions in residual radioactive material necessary to meet the 250

' microsieverts (25 nullirem) per year would result in an n 4=5 ment to the public health and safety or the environment or that further reductions were not made because the residual levels associated with the restricted conditions are already dd-mind to be ALARA in accordance with best available

! technology and cost benefit analysis, then the license will not be inmined and will be amended in j its entirety to "Decornnissioning - Possession Only".

l l Under a " Decommissioning - Possession Only" type license ha**ng, the licensee may not add to the inventory of residual Iwiioactive matnial on the facility under any circumstances and must maintain the license until such Eme as the residual radioactive material is removed from the facility by physical decontaminarion or by decay of the material to limits below 250 microsieverts (25 millirem) per year.

A license to be amended as " Decommissioning - Possession Only" will be forwarded to the Supervisor of Decommissioning, Bureau of Radiation Protection for the detennination ofInspection

) 10CFR30.36(d) cunusuco,umeeo.,aammouw = -nao.inamn . . Page 7 of 13

GUIDANCE POLICY FOR LICENSE TERMINATION and DECOMMISS101ilNG OF FACILITIES CONTAMINATED WITH RADIOACTIVE MATERIALS Frequency of the facility, special license conditions and to ensure that the Supervisor, of Decommissioning is cognizant of the site / facility to ensure an inspection program is established with the department for the site / facility and institutional and long term controls are in place at the site / facility. The Decommissioning Supervisor shall also ensure required environmental monitoring controls are in place to ensure that dose to the general public from all pathways are ALARA.

If a facility is found with residual radioactive material that has been abandoned where the residual radioactive material is of such a level that an average member of the critical group could exceed 250 microsieverts (25 millirem) per year, es ery effort will be made by the department to locate the previous licensee for financial assurances required for the decontamination and decommissioning of the site / facility. If the previous licensee is found, the license will be re issued under

" Decommissioning - Possession Only" and the site / facility will be decontaminated to levels acceptable to the director for unrestricted use, or the license will be continued until such time as the facility meets these criteria. If the previous licensee can not be found, the state shall issue an Adjudication Order to the person responsible for the decontamination and decommissioning of the facility. The decommissioning section of the Bureau ofRadiation Protection shall take the lead in determining the methodology and criteria for the decontamination and decommissioning of the site / facility.

Decommissioning Chapter 3748 of the Revised Code does not allow or permit the release of a facility for restricted use, release under deed restrictions or release under restrictive covenant and equitable servitude. A facility will be considered as acceptable for unrestricted use if the residual radioactivity that is l distinguishable from background radiation results in a Total Effective Dose Equivalent (TEDE) to an average member of the critical group that does not exceed 250 microsieverts (25 millirem) per

year, including that from ground water sources of drinking water, and the residual radioactivity has been reduced to levels that are as low as reasonably achievable (ALARA). Determination of the

! levels which are ALARA must take into account consideration of any detriments, such as deaths from transportation accidents, expected to potentially result from the decontamination and waste

' disposal. When calenkdag the total effective dose equivalent to the average member of the critical

group, the licensee shall detemiin the peak annual total effective dose equivalent expected within the first 1000 years afict accommissioning.

After a facility has been decommigioned and the license for handling radioactive material terminated either in accordance with the criteria in rule 3701-39-021 of the Administrative Code, i

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GUIDANCE POI.1"Y FON ',1 CENSE TERMINATION f ed DECOMMISSIONING OF F ACILITIES CONTAMINATED WITH RADIOACTIVE MATERIALS

, or previous to Ohio becoming an Agreement State, by NRC criteria, the director will not require additional cleanup unless, based on new information, the Director determines that the criteria in effect at the time of decommissioning was not met and residual radioactivity remaining at the facility could result in significant threat to public health, safety, or the environment. If, at the time that Ohio becomes an Agreement State, the facility is in the process of decommissioning pursuant j to an approved NRC decommissioning plan, a " Decommissioning-Possession Only" license will be required. If decommissioning pursuant to the NRC approved plan results in residual radioactivity with a Total Effective Dose Equivalent (TEDE) exceeding 250 microsieverts (25 i millirem) per year, the license may not be terminated. However, the terms imposed on the

" Decommissioning - Possession Only" license will incorporate and require the licensee to assure maintenance of the terms of the NRC-approved decommissioning plan.

The use of alternative criteria to amend a license for " Decommissioning - Possession Only" requires the approval of the director after consideration of the Bureau of Radiation Protection l recommendations that will address any comments provided by other state agencies and any public comments submitted during the public hearing phase oflicense termination.

As a final step in decommissioning, the licensee shall-

• certify that all radioactive materials, including residual radioactive material, have been disposed ofin a proper and complete manner, by submitting to the director, a " Radioactive l Materials Disposal Form" as provided by the director. This form shall contain all required information to allow the director to determine that the radioactive materials have been properly disposed of;

+ conduct a radiation survey (direct radiation / general area / contact reading for " hot spots" or greater than background areas) of the premises where the licensed activities covered by the license were performed, unless the licensee can demonstrate to the satisfaction of the director, that the premises are suitable for release in some other manner, i.e., only small sealed sources or devices were maintained at the facility and leak tests on all sources were conducted in a timely and correct manner with no indication ofleakage, and that all disposal criteria have been met. The survey, if required shall contain:

o reports oflevels of gamma radiation in units of microsieverts (millirem) per hour at one meter from surfaces, and report levels of radioactivity, including alpha and beta contamination in units of becquerels (disintegrations per minute and picocuries) per 100 square centimeters - removable and fixed - for surfaces, megabecquerels

! (microcuries) per nulhliter for water, and becquerels (picoeuries) per gram for solids such as soil or concrete; and i

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l GUIDANCE POLICY FOR LICENSE TERMINATION and I

DECOMMISSIONING OF FACILITIES CONTAMINATED WITH RADIOACTIVE MATEPJALS o specify the survey meter used and certify that each meter is properly calibrated and tested.

Decommissioning Plan A decommissioning plan must be submitted if required by license condition or if the procedures and activities necessary to carry out decommissioning of the site or separate building or outdoor area have not been previously approved by the director and these procedures could increase potential health and safety impacts to workers or to the public, such as in any of the following cases:

• Procedures would involve techniques not applied routinely during cleanup or maintenance operations;

. Workers would be entering areas not normally occupied where surface contamination and radiation levels are significantly higher than routinely encountered during operation;

• Procedures could result in significantly g' ester airbome concentrations of radioactive materials than are present during operation; or

- a Procedures could result in significantly greater releases of radioactive material to the environment than those associated with operation.

The licensee shall document in the d+x- uiaaioning plan or license termination plan how the advice ofindividuals and institutions in the community who may be affected by the decommissioning has been sought and addressed, as appropnate following analysis of that advice. In seeking such advice, the licensee shall pmvide for:

- participation by myatatives of a broad cross section of community interests who may be affected by the decomminioning; .

l

= an opportunity for a comprehensive, collective discussion on the issues by the participants represented; and

• a publicly available summmy of the results of all such discussion, including a description of the individual viewpoints of the participants on the issues and the extent of agreement and

dieagreement smong the participants on the issues.

Upon the receipt of a decommissioning plan or license termmation plan (LTP) from the licensee, or whenever the director deems such notice to be in the public interest, the director shall:

- notify and solicit comments from local and state agencies in the vicinity of the facility and any Indian Nation or indigenous people that have treaty or statutory rights that could be c wwunx tuuma ne naamm m . nno. a.eam m . . .

Page 10 of 13

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l' GUIDANCE POLICY FOR LICENSE TERMINA5CN and DECOMMISSIONING OF FACILITIES CONTAMIMfED WITH RADIOACTIVE MATERIALS affected by the decommissioning; and publish a notice in state area newspapers including the local newspaper of the town, city, or county where the facility is located, that is readily accessible to individuals in the vicinity of the facility, and solicit comments from affected parties.

The Director may approve an alternate schedule for submittal of a decommissioning plan required by this Guidance Policy if the Director determines that the alternative schedule is necessary to the effective conduct of decommissioning operations and presents no undue risk from radiation to the public health and safety and is otherwise in the public interest. Procedures such as those listed below with potential health and safety impacts may not be carried out prior to approval of the decommissioning plan. The proposed decommissioning plan for the facility or separate building or outdoor area must include:

• A description of the conditions of the facility or separate building or outdoor area sufficient to evaluate the acceptability of the plan; A description of planned decommissioning activities;

• A description of methods used to ensure protection of workers and the environment against radiation hazards during decommissioning;

• A description of the planned final radiation survey; and

- An updated detailed cost estimate for decommissioning, comparison of that estimate with present funds set aside for decommianioning, and a plan for assuring the availability of adequate funds for completion of decommissioning.

The proposed decommissioning plan will be approved by the Director if the information therein demonstrates that the decommissioning will be completed as soon as practicable and that the health l and safety of workers and the public will be adequately protected.

DecommissimeingSchedule Unless an exemption is granted, in writing, by the director, licensees shall complete l decommissioning of the facility or separate building (s) or outdoor areas as soon as practicable but l not later than 24 months following the initiation of the decommissioning. When decommissioning involves the entire facility, the licensee shall request license termination as soon as practicable but no later than 24 months following the initiation of the decommissioning.

! The director may grant a request to extend the time periods established above if he/she determines l that this reliefis not detrimental to the public health and safety and is otherwise in the public interest.

c wmuuc= === m ma- m . o. w-un m . . Page 11 of 13 f

a GUIDANCE POLICY FOR LICENSE TERMINATION and DECOMMISSIONING OF FACILITIES CONTAMINATED WITH RADIOACTIVE MATERIALS The request must be submitted no later than 30 days before the required notification detailed in this

- section. The schedule for decommissioning may not commence until the Director has made a determination on the request.

For decommissioning plans calling for completion of decommissioning later than 24 months after plan approval, the plan shall include ajustification for the delay based on the criteria in this policy.

Decommissioning Funding and Financial Assurances Coincident with the notification required to terminate a license, the licensee shall maintain all '

decommissioning financial asst.rances in effect established by the licensee in conjunction with a license issuance or renewal or as required by the director. The amount of the financial assurance must be increased, or may be decreased, as appropriate, to cover the detailed cost estunate for decommissioning.

A licensee shall submit with a decomminioning plan, financial assurance to cover the detailed cost estimate. Following approval of the decommissioning plan, a licensee, with approval of the Director, may reduce the amount of the financial assurance as decommissioning proceeds and radiological contamination is reduced at the facility.

Innplementing Procedures To ensure that this Guidance Policy is satisfactorily implemented by licensee and the department, a number ofimplementing procedures will be developed to support the policy. These procedures will include, but may not be limited to the following:

BRP-DEC-001, Development of an Environmental Impact Statementfor the Termination aruf Decommissioning ofa State ofOhio Licensed Facility; BRP-DEC-002, Issues on Radiation Site Cleanup; BRP-DEC-003, Radiological Criteriafor License Termination; BRP-DEC-004, Release Criteriafor Decommissioning; BRP DEC-005, Technical Basis for Translating Contamination Levels to Annual Total Dose 4

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GUIDANCE POLICY FOR LICENSE TERMINATION 1 and DECOMMISSIONING OF FACILITIES CONTAMINATED WITH RADIOACTIVE MATERIALS Equivalent.

References -

Title 10 Code of Federal Regulations Parts 20,30,33,40,70.

NRC Final Decommissioning Rule, Title 10 Code of Federal Regulations Part 20, Subpart E.

Chapter 3747. of the Ohio Revised Code Chapter 3748. of the Ohio Revised Code Chapter 3701-38-021 of the Ohio Administrative Code Chapter 3701-39-021 of the Ohio Administrative Code ,

Chapter 3701-39-021 (proposed revision) of the Ohio Administrative Code Guideline andPolicypr the Remediation ofSites Contaminated with Radioactive Materials and the Management ofRadioactive Faste, Roger Suppes to Deborah Arms, September 18,1996 Position Statement, Position of the Ohio Dww of Health, Remediation Standardrfor Sites Contaminated with Radioactive Materials, July :1,1996 l

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