ML20202B230

Second Partial Response to FOIA Request for Documents. Documents Listed in App B Already Available in Pdr.Documents Listed in App C Maintained in PDR Under Listed Request Number

ML20202B230
Person / Time
Issue date:	01/06/1999
From:	Racquel Powell NRC OFFICE OF ADMINISTRATION (ADM)
To:	Alkema K ENVIROCARE OF UTAH, INC.
Shared Package
ML20202B231	List: ML20202B230 ML20202B248
References
FOIA-98-296 NUDOCS 9901290030
Download: ML20202B230 (4)

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NRC FORM 464 Part i \ U.S. NUCLEAR REGULATORY CO MISSION PUIAIPA RESPONSE NuMDER 6-19tes)

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/#* % 98-296 2

, RESPONSE TO FREEDOM OF i S S INFORMATION ACT (FOIA) / PRIVACY RESPONSE -

k* . . . +] ACT (PA) REQUEST TYPE Y #'

HEQULs1ER DATE Mr. Kenneth Alkema JAll O i W PART l. -INFORMATION RELEASED No additional agency records subject to the request have been located.

Requested records are available through another public distribution program. See Comments section.

-.- [APPENDICE S~~~Agency records subject to the request that are identified in the listed appendices are already available for B public inspection and copying at the NRC Public Document Room.

APPENDICES ^

Agency records subject to the request that are identified in the listed appendices are being made available for C public inspection and copying at the NRC Public Docurnent Room.

$ncTo~s~elis information on how you may obtain access to and the charges for copying records located at the NRC Public

- Document Room,2120 L Street, NW, Washington, DC.

y IAPPrNDiCEs" ~

y Agency records subject to the request are enclosed.

C

~~ 'Ric^ord5 subject to the request that contain information originated by or of interest to another Federal agency have been ,

referred to that agency (see comnients section) for a disclosure determination and direct response to you. l g We are continuing to process your request.

See Comments.

PART 1.A - FEES AuoVNT* You will be billed by NRC for the amount listed. None. Minimum fee threshold not met.

I ~~ You will receive a refund for the amount listed. Fees waived. l ns ~ l PART 1.B --INFORMATION NOT LOCATED OR WITHHELD FROM DISCLOSURE No agency records subject to the request have been located.

Certain information in the requested records is being withheld from disclosure pursuant to the exemptions described in and for

-- the reasons stated in Part II.

This determination may be appealed within 30 days by writing to the FOIA/PA Officer. U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Clearly state on the envelope and in the letter that it is a "FOIA/PA Appeal."

PART l.C COMMENTS (Use attached Comments contmuation page if required) i W9o129003o 990106

(>Q T l 1 PDR FOIA ALKEMA98-296 PDR wuN.m3 UML . t MLLDQM OF lW QRMAI 40M ACI AND PHN ACY AC l OF f ICLH Rusself A. Pow.. . ell '

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NRc r ORM 464 Part 1 (61998) PRINTEo oN RECYCLED PAPER This form was designed using informs 1

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Re: FOIA-98 296 i

APPENDIX B  :

RECORDS ALREADY AVAILABLE IN THE PDR ACCESSION NO. DATE NUMBER DESCRIPTION #PAGE COUNT)

1. 3/26/96 9612060181 Letter to D. Sollenberger from J. Rauch, subject: Unregulated Radon Release from Browning-Ferris, Inc.'s Niagara Landfill (one of the radioactively contaminated properties in the Energy Department's Tonawanda NY FUSRAP Site), (4 pgs.).

2. 9/4/96 9612060178 Letter to D. Sollenberger from D. Finch, re:

Letter dated March 26,1996, from J. Rauch concerning radon release from the Niagara  ;

landfillin the Town of Tonawanda, New York, (1 pg.).

3, 9/6/96 9612060176 Letter to D. Sollenberger from D. Finch, re:

Fax sent to your office 9/4/9612:21 p.m. - 2 l l pages, (1 pg.). I i  !

i- 4. 9/30/96 9612060174 Letter to J. Bartlett from J. Rauch re: control i l of environmental releases, (1 pg.).

l l 5. 10/29/96 9612060170 E-Mail from H. Newsome to P. Lohaus, l subject: Tonowanda Letter, (1 pg.). l

6. 3/23/97 9704170424 Letter to J. Sweeney from J. Rauch, re:

Regulation of Licensee Linde/Praxair,(2 pgs.).

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7. 7/29/98 9808140130 Letter to R. Bangart from P. Merges, re:

NRC jurisdiction over Uranium Mill Tailings, (3 pgs.).

8. 2/9/98 9802270252 Letter to R. Bangart from P. Merges, re:

Jurisdiction issue, (1 pg.).

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9. 3/20/98 9804060359 Letter to W, Sinclair from R. Bangart re:

Questions Posed by Licensees, (1 pg ).

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8 Re: FOlA-98 296 I l

1 APPENDIX B RECORDS ALREADY AVAILABLE IN THE PDR (CONTINUED)

ACCESSION NO. DATE NUMBER DESCRIPTION 4PAGE COUNT)

10. 6/11/98 9807240127 Letter to Chairman Jackson from C. Hardin re:

Resolution Adopted by Conference of Radiation '

Control Program Directors, (3 pgs.).

11. 6/18/98 9807240131 Letter to C. Hardin from J. Hoyle re: NRC Resolution, (1 pg.).

12. 6/29/98 9807270169 E-Mail from D. Gillen to D. Sollenberger, subject:

Bangart Letter to Hardin, (1 pg.).

13. 7/14/98 9807240119 E-Mail from J. Holonich to D. Sollenberger, subject:

CRCPD Letter, (1 pg.).

14. 7/15/98 9807240097 Letter to C. Hardin from R. Bangart, re: NRC Resolution, (2 pgs.).

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3 Re: FOIA-98-296 APPENDIX C RECORDS MAINTAINED IN THE PDR UNDER THE ABOVE REQUEST NUMBER NUMBER DATE DESCRIPTION /PAGES

1. 2/29/96 Letter to C. Gordon from P. Merges, re: NRC's Jurisdiction over Radioactive Materials in Tonawanda, New York, (2 pgs.).

2. 3/12/96 Fact Sheet entitled, " Comments on " Engineering Evaluation / Cost Analysis (EE/CA) for Praxair Interim Actions,1/96," (4 pgs.).

3. 4/23/96 Letter to P. Merges from C. Gordon, regarding NRC's role relating to regulatory control, (2 pgs.).

4. 3/12/97 Letter to C. Gordon from P. Merges regarding Remediation of Sites Contaminated with 11.e.(2) Byproduct Material, (3 pgs.).

5. 4/2/97 Memorandum to J. Greeves from A. R. Blough, subject: Letter from New York Requesting NRC's Position on Remediated Fusrap Sites, (1 pg.).

omanx 92-a94 ENVIROCAREorvun.mc. @@ ** *** "' " ~

' R c.6 THE SAFE ALTERNATIVE puttedCsce- I Certified Mail Return Receipt Requested July 17,1998 Director, Freedom ofInformation and Publications Services U.S. Nuclear Regulatory Commission Washington, D.C. 20555 RE: Freedom ofInformation Act Request

Dear Director,

Freedom ofInformation and Publications Services:

Envirocare of Utah, Inc. ("Envirocare") is requesting that the U.S. Nuclear Regulatory Commission ("NRC") provide Envirocare with the information, documents and l records requested by this letter pursuant to the Freedom ofInformation Act,5 U.S.C.  !

552, and 10 CFR Part 9, Subpart A. Envirocare agrees to bear the reasonable costs  !

associated with this request.

This request for documents or records shall mean " Agency Records" as the term has been defined by 10 CFR 9.13, including, but not necessarily limited to, Agency Records that are maintained on paper, microfiche, microfilm, electronic storage i media,"e-mail communications," or other storage medium.

Requested information: )

1. All documents relating to the regulation of processing of uranium ores and

" alternate feeds" at the International Uranium (USA) Corporation's (IUC's)

White Mesa Mill located near Blanding, San Juan County, Utah.

2. All documents relating to the regulation of disposal of uranium byproduct materials and waste residues resulting from the processing of uranium ores and " alternate feeds" at IUC's White Mesa Mill.

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3. All documents relating to IUC's license amendment allowing the White Mesa i Mill to process certain " alternate feed" materials (the "Ashland Materials")  ;

from the Ashland 2 site in Tonawanda, New York.

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4. All documents relating to the findings and determinations that the Ashland  !

Materials meet the definition of 11e.(2) byproduct material, and that they are substantially similar, radiologically and chemically, to the " alternate feeds"

!- licensed to be processed at IUC's White Mesa Mill.

l 5. All documents relating to the actual process to be employed in the recycling of the Ashland Material at IUC's White Mesa Mill, including, the technology, the techniques, the number and qualifications of employees, and the costs associated with processing and disposal.

6. All documents relating to any findings and determinations of the quality and quantity of uranium, or other valuable ores or materials, expected to be extracted from the recycling of the Ashland Materials processed at IUC's White Mesa Mill.

7. All documents relating to the findings and determinations of economic feasibility and justification for recycling of the Ashland Materials by ,

processes at IUC's White Mesa Mill.

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8. All documents relating to communications between the NRC other federal agencies, IUC and other licensee's of NRC, White Mesa Mill and other conventional and nonconventional uranium processing facilities, state

! regulatory agencies, or interested and affected parties regarding the processing i of the Ashland Materials.

9. All documents relating to communications between the NRC, other federal agencies, other licensee's of NRC, other conventional and nonconventional

uranium processing facilities, state regulatory agencies or interested and l

affected parties regarding license amendments and/or requests for license I amendments for recycling and processing of" alternate feeds," similar to the

Ashland Materials, from the same, or from other locations.

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ENVIROCARE Director, Freedom ofInformation and Publications Services July 17,1998 Page 3

10. All internal correspondence or documents relating to the recycling and the l processing of the Ashland Materials and other similar " alternate feeds" at the IUC White Mesa Mill, or at other licensed, conventional and nonconventional, uranium processing and recycling facilities.

10. All internal correspondence or documents relating to the determinations that j would certify IUC' White Mesa Mill disposal impoundments are in full compliance with CERCLA Off Site Response Actions at 40 CFR 300.440. i l

11. All internal correspondence or documents relating to or relied upon by the ,

I NRC in findings and determinations of compliance with NRC 's Uranium Mill Facilities, Guidance Documents, specifically:

. Final Revised Guidance on Disposal of Non-Atomic Energy Act of 1954, Section 11e.(2) Byproduct Material in Tailings i Impoundments; and, e Final Position and Guidance on the Use of Uranium Mill Feed Materials Other Than Natural Ores.

All communications regarding this request should be addressed to Kenneth Alkema, Vice President, Corporate Development.

1 Sincerely, h'f/

Kenneth Alkema Vice President, Corporate Development l

New Ycrk St:.t] D;p rtment cf Envir nm':nt:1 C:nzrv:. tion t Division of Solid & H:zerdous M:t: rials Bureau of Pesticides & Radiation 50 Wolf Hoad, Albany, New York 12233-7255 518-457-2225 FAX 518-485-8390 Michael D. Zagata Commissioner l FEB 2 91996  ;

Mr. Craig Gordon U.S. Nuclear Regulatory Commission ,

Region 1 l 475 Allendale Road l King of Prussia, PA 19406 I

Dear Mr. Gordon:

Earlier this month, I called you and posed several questions about the State's and NRC's jurisdiction over certain radioactive materials now in Tonawanda, New York. On February 21, 1996, you and Dennis Sollenberger (of NRC's Office of State Programs) called Barbara Youngberg of this Bureau to discuss the issue and answer our questions. I am writing to obtain the NRC's written confirmation of those answers.

As we have explained to you, the Niagara Landfill at the Seaway Industrial Park contains by-product material as defined in Section 11(e) (2) of the Atomic Energy Act. The US Department of Energy (DOE) has included the landfill in its Formerly Utilized Sites Remedial Action Program (FUSRAP) . The landfill was operated and closed by Browning-Ferris, Inc (BFI). As part of the closure, BFI has installed a methane gas collection system, which consists of 34 wells connected to a blower and a flare stack. As soon as the electrical connections are completed, the blower and flare will go into operation. Ultimately, BFI plans to use the landfill gas to generate electricity. The company has applied to this Department for the environmental permits required for that process. At the present time, the landfill gasses are venting passively, directly from the wells to the atmosphere.

When I called, I asked you about New York State's and NRC's relative jurisdictions over the FUSRAP wastes. Based on your telephone call to Barbara Youngberg, we now understand that because the FUSRAP waste is 11(e) (2) material, New York State cannot license it. Under the Atomic Energy Act, Agreement States must have a specific agreement with the NRC to regulate 11(e) (2) material, and 11 (e) (2) licensing is not addressed in our Agreement. However, you said that under New York State's general powers to control pollution and protect the environment, this Department can limit access to the material and prevent others from moving or disturbing it.

Given that only the NRC can license this byproduct material, we asked if NRC would do so in this case. You and Mr. Sollenberger told Ms. Youngberg that as a matter of policy

?,& l m isew y 10

4 Mr. Craig Gordon Page 2 (which NRC has not publicly distributed), the NRC does not seek to regulate 11(e) (2) material that DOE has included in the FUSRAP program, even though DOE does not own the material. In a May 31, 1995 letter to Mr. Robert Gulley of BFI, Mr. Ron Kirk of DOE stated, Ownership of 11.e.(2) material remains with the property owner until custody has been transferred to DOE. Transfer of custody will occur at the time DOE undertakes the physical removal of the material from the site.

You and Mr. Sollenberger said that as long as DOE is studying the site to decide on remedial actions, NRC will still not assert regulatory control over the material. If DOE eliminates the site from the FUSRAP program, NRC will assess the need for regulatory actions to protect public health and safety.

That is our understanding of NRC's position regarding this 11 (e) (2) material. We would appreciate a written response from the NRC, either confirming our understanding or correctly explaining the NRC's role and policy. Because of the permit applications this Department has before it for the electric generating project, we need to settle the regulatory status of the radioactive material in the landfill (and the decay products of that material) by March 31, 1996.

Thank you for your assistance. If you have any questions, please call me or Barbara Youngberg.

Sincerely, 19' . ;7~

Paul . Merge , Ph.D., Chief Bureau of Pesticides & Radiation Division of Solid & Hazardous Materials BY/

cc: R. Kirk, US DOE R. Voyt, BFI R. Aldrich, NYS Dept. of Labor K. Rimawi, NYS Dept. of Health J. Spath, NYS Energy Research & Development Authority M. Surgan, NYS Dept. of Law F. Shattuck, NYSDEC, Region 9 S&HME S. Doleski, NYSDEC Region 9 RPA Y. Erk, NYSDEC Region 9 B. Conlon, NYSDEC, DEE l

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o' 475 ALLENDALE ROAD KING OF PRUSSIA, PENNSYLVANIA 19406 1415 r April 23, 1996 Paul J. Merges, Ph.D. >

Chief, Bureau of Pesticides & Radiation Division of Solid & Hazardous Materials f

.New York State Department i

of Environmental Conservation 50 Wolf Road, Room 402 l '

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Albany, NY 12233-7255 t

Dear Dr. Merges:

In-your letter dated February 29, 1996, you requested that we provide a ,

I written response either confirming your understanding of the U.S. Nuclear i

Regulatory Commission's (NRC) position relative to exercising its regulatory control over Atomic Energy Act (AEA) Section lle(2) material, or explain the NRC's role and practice relative to this material.

The current NRC practice of not licensing materials at Formally Utilized Sites Remedial Action Program (FUSRAP) sites has been the NRC's practice since the

' creation of the NRC in 1975. We are currently searching the archives for the formal dccumentation of this practice. This letter will serve as an interim response o your request until that information becomes available.

Relativs .o the Section lle(2) material you described, and the conditions under i ~ ~ c h it currently is situated in a Tonawanda, New York landfill, we believe ne material in question does not represent an immediate health and L -safety hazard. We acknowledge that, under the Agreement between the NRC and l

' New York, you do not exercise total regulatory jurisdiction over the material.

However, the State has regulatory authority over radiological constituents other than lle(2) material, non-AEA material, and non-radiological constituents, and should take action deemed appropriate to protect the health l and safety of the public. This includes evaluating potentially hazardous l environmental conditions at the site and exerting appropriate controls until the U.S. Department of Energy completes its responsibilities under FUSRAP.

If you have any questions, please contact me.

Sincerely, W

Craig . Gordon Regional State Agreements Officer l

I cc: R. Kirk, US 00E R. Aldrich, NYS Departinent of Labor K. Rimawi, NYS Energy Research & Development Authority M. Surgan, NYS Department of Law

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. Division of Solid & Htz:rdous M:t:ri Is Bureau of Pesticides & Radiation 50 Wolf Road, Albany, New York 12233-7255 518-457-2225 FAX 518-485-8390 John P. Cahill Acting Commissioner i

Mr. Craig Gordon MAR 121997  ;

U.S. Nuclear Regulatory Commission Region 1  ;

475 Allendale Road '

King of Prussia, PA 19406

Dear Craig:

The purpose of this letter is to request the Nuclear q Regulatory Commission's (NRC) position on several questions regarding remediation of sites contaminated with 11.e. (2) byproduct material.

As you know, the United States Department of Energy (DOE) is i now planning to remediate several sites in Tonawanda, New York )

under the Formerly Utilized Sites Remedial Action Program 1 (FUSRAP). The radioactive material on the sites is recognized by DOE and the New York State Department of Environmental Conservation (DEC) to be byproduct material as defined in section 11.e.2 of the Atomic Energy Act. We are currently discussing with DOE several options for remediation of these sites.

As you acknowledged in your April 23, 1996 letter to me, the NRC does not license 11.e . (2) material for which DOE has taken responsibility under FUSRAP. Four questions have arisen regarding NRC's jurisdiction once DOE completes its responsibilities under the FUSRAP program.

1. Will NRC exert any jurisdiction over these sites once the FUSRAP remediation is complete? DEC's Cleanup Guideline for Soils Contaminated wi th Radioactive Ma terials, Technical l Administrative Guidance Memorandum 4003, is a dose-based l method for deriving cleanup criteria. The application of l TAGM 4003 to the Tonawanda FUSRAP sites could result in

! residual concentrations of thorium in soil in the range of 20 to 40 picocuries per gram, after remediation. In that i event, would the NRC accept the determination of DOE and DEC that the decontamination is complete?

2. One option allowed under TAGM 4003 is to apply deed notations or other institutional controls to preclude certain future land uses. If such a measure is used at the Tonawanda FUSRAP sites, will the NRC see a need to license the residual 11.e. (2) material?

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3. In a September 13, 1989 letter (copy enclosed) from Mr. Ramon E. Hall, then Director of NRC's Region IV, to Mr. David Lacker of the Texas Department of Health, an NRC position on blending was presented. Mr. Hall wrote, l

If the radium-226 concentration in soil exceeds 5 pCi/g . . . the material is to be removed and placed in an approved disposal ,

l facility. The NRC does not consider it 1 appropriate for the 5 pCi/g to be used as a I soil mixing or soil blending criteria, with l the propose of allowing the byproduct l material to remain in place. Similarly, your j second and third points involve soil mixing >

and fail to include disposal in an approved facility; therefore, they cannot be considered as appropriate disposal methods of byproduct materials.

Would this position apply to the 11.e. (2) material on the Tonawanda FUSRAP sites?

4. In his September 13, 1989 letter, Mr. Hall went on to add, The soil blending that has been proposed does not represent an acceptable disposal option.

However, if no viable disposal option exists, a licensee may apply for onsite disposal of byproduct materials.

Mr. Hall referenced radon exhalation and long-term stability requirements in 10 CFR 40, Appendix A. Would such requirements apply to the Tonawanda FUSRAP sites, if DOE j uses blending as the method to meet cleanup criteria? Would the landowners be required to obtain 11.e. (2) licenses from the NRC?

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' 4 It is essential that these issues be settled as soon as l possible, as we are now directing our attention to the criteria that will be used to affect the final remediation of these sites.

l l On a related issue, we have not yet received confirmation of the interim response you provided last year to our questions about NRC's policy of not licensing 11.e. (2) material that is being addressed under FUSRAP. In your April 23, 1996 letter to me, you wrote that the NRC was " searching the archives for the formal documentation of this practice," and that your letter would serve as "an interim response until that information becomes available." We would appreciate an update on the status of NRC's formal response on that issue.

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l Mr. Craig Gordon Page 3 l

l Thank you for your attention to these issues. If you have any questions, please call me or Barbara Youngberg of this Bureau.

Sincerely,

, . hmm Paul J. Merges, Ph.D., Chief Bureau of Pesticides & Radiation Division of Solid & Hazardous Materials Enclosure cc: R. Kirk, USDOE J. Spath K. Rimawi