ML20198J212
| ML20198J212 | |
| Person / Time | |
|---|---|
| Issue date: | 11/30/1998 |
| From: | Greeves J NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| To: | Fiore J ENERGY, DEPT. OF |
| References | |
| 2.206, NUDOCS 9812300115 | |
| Download: ML20198J212 (5) | |
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November 30, 1998
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Mr. James Fiore, Acting Deputy Assistant Secre,tary for Environmental Restoration U.S. Department of Energy 1000 Independence Avenue, SW Washington, DC 20585
SUBJECT:
NATURAL RESOURCES DEFENSE COUNCIL PETITION REQUESTING U.S.
NUCLEAR REGULATORY COMMISSION TO EXERT LICENSING AUTHORITY OVER THE U.S. ARMY CORPS OF ENGINEERS HANDLING OF RADIOACTIVE MATERIALS IN CONNECTION WITH THE FORMERLY UTILIZED SITES REMEDIAL ACTION PROGRAM
Dear Mr. Fiore:
On October 15,1998, the Natural Resources Defense Council (NRDC) submitted a petition (Enclosure 1) to the U.S. Nuclear Regulatory Commission (NRC). The petition requested that the NRC exert authority to ensure that the U.S. Army Corps of Engineers' handling of radioactive materials in connection with the Formerly Utilized Sites Remedial Action Program is effected in accord with properly issued license and all other applicable requirements. By letter dated November 30,1998, (Enclosure 2), the staff acknowledged receipt of the petition and indicated that the NRC has decided to treat the petition under 10 CFR 2.206, and is currently reviewing the request. Also enclosed is a notice of receipt of the NRDC petition for publication in the Federal Reaister (Enclosure 3).
The staff would be interested in any comments that the U.S. Department of Energy may have regarding the NRDC petition, and would appreciate receiving any such comments within 30 days from the date of this letter. If you have any questions, please contact Hampton Newsome of the Office of the General Counsel (301-415-1623) or John H. Lusher (301-415-7694) of my staff.
Sincerely, j
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[ Signed by]
John T. Greeves, Director Division of Waste Management bg Office of Nuclear Material Safety
[V and Safeguards
Enclosures:
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8 Mr. James Fiore, Acting Deputy Assistant
- Secrqtary for Environmental Restoration U.S. Department of Energy i
1000 Independence Avenue, SW i
Washington, DC 20585
SUBJECT:
NATURAL RESOURCES DEFENSE COUNCIL PETITION REQUESTING U.S.
NUCLEAR REGULATORY COMMISSION TO EXERT LICENSING AUTHORITY OVER THE U.S. ARMY CORPS OF ENGINEERS HANDLING OF RADIOACTIVE MATERIALS IN CONNECTION WITH THE FORMERLY UTILIZED SITES REMEDIAL ACTION PRCrGRAM
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Dear Mr. Fiore:
/
On October 15,1998, the Natural Resources Defense Council (NRDC) submitted a petition (Enclosure 1) to the U.S. Nuclear Regulatory Commicsioi1 (NRC). The petition requested that the NRC exert authority to ensure that the U.S. Arrp/ Corps of Engineers'(the " Corps")
handling of radioactive materials in connection with the Formerly' Utilized Sites Remedial Action Program is effected in accord with properly issudd license and all other applicable requirements. By letter dated November i998, (Enclosure 2), the staff acknowledged receipt of the petition and indicated that the'fNRC has decided to treat the petition under 10 CFR 2.206, and is currently reviewing the requ,est. Also enclosed is a notice of receipt of the NRDC petition for publication in the Federal Reoister (Enclosure 3).
The staff would be interested in an/
y comments that the DOE may have regarding the NRDC petition, and would appreciate re'ceiving any such comments within 30 days from the date of this letter. If you have any questions, please contact Mr. Hampton Newsome of the Office of the General Counsel (301-415-1623) or Mr. John H. Lusher (301-415-7694) of my staff.
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Sincerely, l
l John T. Greeves, Director l
Division of Waste Management Office of Nuclear Material Safety Enclosures,/
and Safeguards
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Mr. James Fiore, Acting Deputy Assistant I
Secretpry for Environmental Restoration U.S. Department of Energy 1000 Independence Avenue, SW Washington, DC 20585 l
SUBJECT:
NATURAL RESOURCES DEFENSE COUNCIL PETITION REGARDING U.S.
NUCLEAR REGULATORY COMMISSION EXERT LICENSING AUTHORITY OVER THE U.S. ARMY CORPS OF ENGINEERS HANDLING OF RADIOACTIVE MATERIALS IN CONNECTION WITH THE FORMERLY UTILIZED SITES REMEDIAL ACTION PROGRAM
Dear Mr. Fiore:
On October 15,1998, the Natural Resources Defense Council (NRDC) submitted a petition (Enclosure 1) to the U.S. Nuclear Regulatory Commission (NRC), requesting that the NRC exert authority to ensure that the United States Army Corps of Engineers'(the " Corps")
handling of radioactive materials in connection with the'Formerly Utilized Sites Remedial Action Program is effected in accord with properly issued license and all other applicable requirements. By letter dated November 13,1998, (Enclosure 2), the staff acknowledged receipt of the petition and indicated that the Office of the General Counsel has decided to treat the petition under 10 CFR 2.206 and is currently reviewing the request. Also enclosed is a notice of receipt of the NRDC petition for publication in the Federal Reaister (Enclosure 3).
The staff would be interested in any domments that the Corps may have regarding the NRDC petition, and would appreciate receiving any such comments by December 4,1998.
Sincerely,
/
John T. Greeves, Director
/
Division of Waste Management
/
Office of Nuclear Material Safety and Safeguards
Enclosures:
dstated DISTRIBUTION w/ Encl.:
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WASHINGTON, D.C. 20h0001 g
k*****,o November 30, 1998 Mr. James Fiore, Acting Deputy Assistant Secretary for Environmental Restoration
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U.S. Department of Energy t
1000 Independence Avenue, SW Washington, DC 20585
SUBJECT:
NATURAL RESOURCES DEFENSE COUNCIL PETITION REQUESTING U.S.
NUCLEAR REGULATORY COMMISSION TO EXERT LICENSING AUTHORITY OVER THE U.S. ARMY CORPS OF ENGINEERS HANDLING OF RADIOACTIVE MATERIALS IN CONNECTION WITH THE FORMERLY UTill2ED SITES REMEDIAL ACTION PROGRAM
Dear Mr. Fiore:
On October 15,1998, the Natural Resources Defense Council (NRDC) submitted a petition (Enclosure 1) to the U.S. Nuclear Regulatory Commission (NRC). The petition requested that the NRC exert authority to ensure that the U.S. Army Corps of Engineers' handling of radioactive materials in connection with the Formerly Utilized Sites Remedial Action Program is effected in accord with properly issued license and all other applicable requirements. By letter dated November 30,1998,(Enclosure 2), the staff acknowledged receipt of the petition and indicated that the NRC has decided to treat the petition under 10 CFR 2.206, and is currently reviewing the request. Also enclosed is a notice of receipt of the NRDC petition for publication in the Federal Reaister (Enclosure 3).
The staff would be interested in any comments that the U.S. Department of Energy may have regarding the NRDC petition, and would appreciate receiving any such comments within 30 days from the date of this lettei. If you have any questions, please contact Hampton Newsome of the Office of the General Counsel (301-415-1623) or John H. Lusher (301-415-7694) of my staff.
Sincerely,
/ John T. Greeves, Director Division of Waste Management Office of Nuclear Material Safety and Safeguards
Enclosures:
As stated
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l ENCLOSURE 1 i
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10/h9/90 13:10 NO. 0:.7 903 October 15,1998 Mr.L. Joseph Callen Executive Director for Operations-Unbed States Nuclear Regulatory Commission Washington, D.C. 20555
~
Re:
Administration ofthe Formerly U'tilized Sites Remedial Action Program by the U.S. Army Corps of Engineem '
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Dear Mr. Callan:
j On behalf of the Natural Resources Defense Council (the "NRDC"), we write pursuant to 10 -
C.F.R-5 2.206 resardias a matter of grave coneem arisins in connection with the United states Formerly Utilized Sites Remedial Action Program, or "FUSRAP."
i I
FUSRAP is a program providing for the clean-up and disposal of radioactive materials at various j
industrial facilities around the cou,ntry that once performed work as part of the Manhattan Project and other early activiries of the Atomic Energy Commission.. FUSRAP is cunently being managed by the United States Army Corps of Fagia-s (the " Corps"). The Corps, however, is not licensed to handle the radioactfve materials involved in FUSRAP, u it must be under applicable lawr We therefore ask that the NRC exercise its licensing authority over the radioactive materials subject to FUSRAP and take steps to ensure that the Corps henceforth administare FUSRAP only in acoosdencc with a properliissued license and applicabic laws and
- = % t FUSRAP began in 1974 as a program of the Department df Energy (" DOE"). According 'to DOE, a total of 46 sites have been identified for cleanup under FUSRAP. By 1997, cleanup had been malM on 25 of these sites. 'niere are thus 21 ramalaing shes to be cleaned up under the program, located in Connecticut, Illinois, Maryland, Mananchusetts, Missouri, New' Jersey, New York and Ohio. 'Ihe cleanup work under FUSRAP has consistedprimarily of the treatment and/or removal ofinil and other substances enntaining radioactive "hypmduct maierial", as that tam is defined in 42 U.S.C. { 2014(e)..
Until rceently, FUS' RAP was administered by' the Department of Energy. In October of 1997, homever, Congress enacted the 1998 Energy and Water Appropriatic,ns Act (P.%.105-62), Title !
of which (111 Stat.1326) transferred budget and management s'ushority over the FUSRAP program Dom DOE to the United States Army Corps of Fanina=es. According to a letter,to the Secretarles of Energy and Defenso Dom Senator Pete V. Domenict'and Representative Joseph M.
McDude, the Chairmen of the. Senate and House' Subcommittees.on Energy and Water IMnNewtekAss.N.W.
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..,10/MvW 13:10 NO. 0W 901 Development, the transfer of budget authority over FUSRAP to the Corps was not intended to affect DOE's regulatory authority over the pmgram. Instand. Congrew apparently eqected "that basic underlying authorities for the program (would] remain unahered and the responsibility of DOE."','There is nothing in the Act to suggest a wattary scmultacrtminly nothing in the text gives the Corps anything beyond budget authority over FUSRAP.
j Rinee the Appropriations Act did not purport to transfer regulatory authority over FUSRAP to j
the Corps, the, Corps may not legally administer ths. program absent proper oversight. 42 U.S.C.
i 9 2111 provides that no " person" shall "transtkr or receive in interstate commerce, manufheture, produce transfer, acquire, own, possess, impott, or export"" byproduct matedal," except in s
accordance with the terms of a license issued by the NRC/
, DOE is exempt firom this licensing icquirement, as is any entity working under contract for DOE, j
by virtue of 42 U.S.C. (( 2014(s) and 2140. The Corps, however, is not exempt. 42 U.S.C.
{ 2014(s) defines the " person" subject to the licensing requirement to include all govemment
]
agencies except the NRC and DOE. 'Ihus, since FUSRAP involves the possession, handling and l
transfer of byproduct mate:ials, the Corps must either be licensed by the NRC or, qualify as a 1
DOE contractor exempt from the licensing requirement.
4 According to the letter from Senator Domenici and Representative McDade. Congress apparently expec4ed DOE to enter into a memorandum of understanding ("MOU") with the Corps in order
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"to define the sclationships necessary for underlying program authorities to be extended to the Corps...." Whether Congress thought this would make the Corps a DOE contractor, and thus axempt from the NRC licensing requirement, is not clear.' The C6rps itself appeared to assume j
that this would be the case. In a letter to the NRDC, the Corps claimed that it wnuld enter into an MOU.with DOE, and seemed to suggest.that such an MOU would supply all the regulatory j
authority required'by law.2 l
Whateves the validity'of the Corps' position, DOE and the Corps have apparently entered into no j
zuch MOT J. Further, DOF. has taken the position that while it can extend its licensing exemption j
to private coritractors, it cannot extend it to the Corps under ' urrent law.) DOE has also stated c
that.it has no regulatory authority over FUSRAF while it is being managed by the Corps, and, as j
Secretary of Energy Pena testified before Congress, DOB is in fact taking no steps' to itgulate the pmgram?
^
'The end result is that, as things presently stand, the Corps does not have the legal authority to run FU5 KAP without first obtaining a license fkom the NRC. Notwithstanding this, the Corps is opprating FUSRAP by itself, without an NRC license and without NRC oversight.
1 8
tatter daed November 6 1997 from Scantor Pese V. Domenici and %-
rive Josepti M. McDade w Searsaary of Eacegy redsnse Pena ami Societary of Defouse Wlutam 3. Cubcu.
-8 lasst desed May 20,1990 from Matjor Geocral' Albert J. Goosai, it, to Thomas B. Cochran and Barbara A. Flammers.
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We believe this is a profound problem, for two reasons. First, the NRC has as its fundamental goal the safety and necurity of the nation's nuclear activities. He same cannot be said of the 4
Corps, its institutional mission is, by design, focused on other matters. Certainly it must be acknowledged timt the anny's record of bandling nuclear and other hamudous wastes is uut good.
he dangers posed by the handling of radioactive waste counsel strongly in favor of NRC licensing of the FUSRAP program as administered by the Corps. The numerous ma'tters
~ implicated by the Corps' unregulated handHa= of FUSRAP wastes, including worker protection.
cleanup' standards, pmperty rights and long tenu liability, can only benefit from NRC oversight.
Second,' arid more fundamentahy, we believe that the laws governing the utilization and cleanup l
of nuclear materials are simply too important to allow theni to be ignored. In recognition of the highly teehnical nature of radioactive materials and of the extreme dangers they pose, Congress 1
W responsibility for the administration of those laws in the NRC and, to a lesser extent,
[
' DOE. Congress also commanded that, whh very few exceptions, no other person be permined to handle nuclear materials except in accordance with a license issued by the NRC. To now allow the Corps of Engineers to handle the radioactive materials involved in FUSRAP without licensing and oversight by the NRC would flout Congroosional intent and send a dangerous message that the NRC is not conunitted to enforcing the laws it is obliged to uphold.
' For these reasons, we respectfbily request that the NRC exert its authority to ensure that the Corps of Engineers' handling of radioactive materials'in connection with FUSRAP is effected in accord wfth a properly issued licensc and all other applicabic requiicments.
Thank you for your attention to this matter.
1 t
l Sinussuly,
- Sinusely, l
l MCv l
. Thomas B. Cochran, Ph.D.~
hristian R. Pastore J
Sottile, IV Director, Nuclear Program Natural Resources Defense Council Caplin & Drysdale, Chartered l
1200NewYork Avenue,N.W. Suite 400',
One nomas Circle, N.W.
Washington,p.C. 20005 Washington, D.C. 20005 f
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ENCLOSURE 2
f
,o UNITED STATES l
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NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 2066tWXXH p
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November 30, 1998 Dr. Thomas B. Cochran, Director Nuclear Program Naturar Resources Defense Council 1200 New York Avenue Suite 400 Washington, DC 20005
Dear Dr. Cochran:
I am writing to acknowledge receipt of the petition submitted to the U.S. Nuclear Regulatory Commission (NRC) by the Natural Resources Defense Council (NRDC) on October 15,1998.
The petition requested that the NRC exert authority to ensure that the U.S. Army Corps of Engineers'(Corps) handling of radioactive materials in connection with the Formerly Utilized Sites Remedial Action Program (FUSRAP) is executed in accordance with a properly issued license and all other applicable requirements.
NRC has decided to treat the petition under 10 CFR 2.206, and is currently reviewing the request.
4 Enclosed for your information are copies of November 30,1998, letters notifying the U.S.
Department of Energy and the Corps of the NRDC petition and the opportunity to comment (Enclosures 1 & 2). A copy of a notice of the petition for publication in the Federal Reaister is 1
also enclosed (Enclosure 3), if you have any questions regarding this response or the staff's ongoing review of the NRC licensing authority over the Corps in conducting activities under FUSRAP, please contact Mr. Hampton Newsome of the Office of the General Counsel (301-415-1623) or Mr. John H. Lusher (301-415-7694) of my staff.
Sincerely, Carl J. Paperiello, Director Office of Nuclear Material Safety and Safeguards
Enclosures:
As stated (3) l r
5 8
d i
l ENCLOSURE 3
[7590-01)
NUCLEAR REGULATORY COMMISSION 5
AGENCY:
U.S. NUCLEAR REGULATORY COMMISSION
' ACTION:
RECEIPT OF PETITION FOR U.S. NUCLEAR REGULATORY COMMISSION ACTION Notice is hereby given that by petition dated October 15,1998, the Natural Resources i
Defense Council (NRDC) has requested that the U.S. Nuclear Regulatory Commission (NRC) exert authority to encure that the United States Army Corps of Engineers'(the " Corps")
handling of radioactive materials in connection with the Formerly Utilized Sites Remedial Action Program (FUSRAP) is effected in accord with properly issued license and all other applicable i
requirements. As NRDC notes in its petition, FUSRAP began in 1974 as a program of the j
I Department of Energy (DOE), and that DOE had identified a total of 46 sites for cleanup under FUSRAP. By 1997, cleanup of 25 of these sites had been completed. There are currently 21 j
sites stillin need of remediation. In October 1997, Congress transferred funding for FUSRAP i
from DOE to the Corps. NRDC believes that the Corps should obtain an NRC license to conduct activities under FUSRAP. At this time, the NRC has not required the Corps to obtain a l
license.
l The request has been referred to the Director of the Office of Nuclear Material Safety l
and Safeguards. A copy of the petition is being sent to DOE and the Corps, and DOE and the
. Corps are being given the opportunity to comment. Appropriate action will be taken on this petition within a reasonable time.
I 4
. _ _ ~ -
. - ~.. _.
-2 FOR FURTHER INFORMATION CONTACT: John Lusher, Uranium Recovery Branch, Division of Waste Management, Office of Nuclear Material Safety and Safeguards, U.S.
Nuclear Regulatory Commission, Mail Stop T7-J9, Washington, DC 20555. Telephone 301/415-7694. A copy of the petition is available for inspection at the Commission's Public Document Room at 2121 L Street, N.W., Washington, DC 20555.
Dated at Rockville, Maryland, this 3C/
day of hh L 998.
t i
FOR THE NUCLEAR REGULATORY COMMISSION fG Carl J. Paperiell, Director Office of Nuclear Material Safety and Safeguards i
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