ML20202B704

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Responds to Davis ,Requesting Responses to Two Questions Re NRC Position on Relevance of Licensing Program or Rules & Regulations to Disposal of Certain Waste Generated in Corps Administration of Fusrap
ML20202B704
Person / Time
Issue date: 03/02/1998
From: Fonner R
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To: Wright A
ARMY, DEPT. OF, CORPS OF ENGINEERS
Shared Package
ML20202B684 List:
References
FOIA-98-296 NUDOCS 9901290175
Download: ML20202B704 (6)
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UNITED STATES

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[** at\$ NUCLEAR REGULATORY COMMlMION WASHINGTON, D.C. 20555-0001 5  ! March 2,1998 OFFICE oF THE GENERAL counsel Ann Wright, Esq.

Counsel, HTRW Center of Expertise U.S. Army Corps of Engineers, Omaha District 12585 West Center Road l l Omaha, Nebraska,88144-3889

Dear Ms Wright:

We are replying to Dr. Davies' letter of February 13,1998, which requested that our reply be addressed to you. Dr. Davies requested responses to two questions regarding the Nuclear Regulatory Commission's position on the relevance of its licensing program or its rules and regulations to the disposal of certain wastes generated in the Corps' administration of the Formerly Utilized Sites Remedial Action Program (FUSRAP). Dr. Davies specifically asked about waste from eight sites listed in her letter (we have assumed that the St Louis Airport vicinity properties includes the Latty Avenue site). These sites are: Ashland 1&2, Seaway '

landfill, Linde(now Praxair), St Louis Downtown site, St. Louis Downtown vicinity properties, St.

Louis Airport site, and St. Louis Airport vicinity properties. According to our information all of the listed sites are contaminated with residuals from the processing of Congo pitchblende for the Manhattan Engineering District project or shortly afterwards for the Atomic Energy Commission (AEC).

i. The first question asks: "Is an NRC license required for handling activities related to disposal of the FUSRAP wastes from the sites listed aboveT

, Answer: No NRC license is required for the handling activities for the radioactive residuals at those sites. Prior to the enactment of the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA) neither the AEC nor the NRC claimed statutory jurisdiction over the tailings from ore processed for source material. NRC exercied some safety and environmental control over such tai'ings only in conjunction with the licens J processing of ore for source material, drawing primarily on National Environmental Policy Act requirements for environmental mitigation. UMTRCA gave NRC statutory authority over such tailings, but only over tailings resulting from activities licensed by NRC as of the effective date of the Act (November 8, 1978), or thereafter. See, Section 83 of the Atomic Energy Act of 1954 as amended. Such l

activities are understood to be the processing of ore or other material primarily for source material. Section 209 of UMTRCA also ordered NRC to consolidate regulation of tailings with the licensing of source material extraction. Regulations for the handling and disposal of such tailings are to be found, accordingly, in 10 CFR Part 40, Domestic Licensing of Source Material, as an adjunct to source materiallicensing.

Because the residuals at the listed sites were generated long before NRC had any jurisdiction over tailings, and were never produced from source material extraction under NRC license, NRC today has no basis to assert any reautatory authority over the hargiling of these residualc at the listed sites. Cf. Bowen v. Gr;orgetown University Hospital,488 U. S. 204 (1988) (on the issue of retroactive application of rules).

9901290175 990122 PDR FOIA ALKEMA99-296 PDR

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A. Wright 2 The second question asks: 'Are there any NRC rules or regulations which would preclucie disposal of the FUSRAP wastes described above at a RCRA disposal facility?"

Answer: There are no NRC rules or regulations that would preclude disposal of the described FUSRAP wastes at a Resources Conservation and Recovery Act (RCRA) disposal facility.

NRC rules on waste disposalin 10 CFR Part 20, Subpart K, Waste Disposal, apply only to licensees disposing of licensed material. As discussed above in answer to the first question, the waste in question is not licensed material. Licensed material is source, byproduct or special nuclear material within the licensing competence of NRC. Further, in this context neither the Corps of Engineers nor RCRA permitted sites are licensees of the agency. Accordingly, the restrictions on disposalin Subpart K are not applicable.10 CFR Part 61 is also not applicable since it applies only to the procedures and requirements for obtaining a license for commercial disposal of licensed source, byproduct and special nuclear material. Restrictions as to waste form and content, and mar.:.'asting are applicable only to licensed materials shipped by a licensee for disposal at a licensed site. See,10 CFR 20.2006(a)(1)(i)(effective March 1,1998).

Therefore, we conclude that there are no rufes or regulations of the NRC that would preclude disposal of the described FUSRAP wastes at a RCRA site.

For your information, I am enclosing copies of recent correspondence between NRC, the State of New York, and a citizen of that State. This correspondence is related to the Tonowanda sites which are included in the list of sites in Dr. Davies' letter, albeit under other names. If you have any further questions, please call me, at (301) 4151643.

Sincerely, Robert L. Fonner i Special Counsel for Fuel Cycle and Safeguards Regulations

Enclosures:

As stated I

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ENERGY AND WATER DEVELOPMENT APPROPRIATIONS BILL,1999 Ams 16,1998.-Committed to the Committee of the Whole House on the State of the Union and ordered to be printed Mr. MCDADE, from the Committee on Appropriations, submitted the following REPORT ITo accompany HA 4060)

The Committee on Appropriations submits the following report in explanation of the accompanying bill making appropriations for en-ergy end water development for the 6 scal year ending September 30,1999, and for other purposes.

D(DEX TO BILL AND REPORT ..

pare Namner '

s.u a.r-,

Introduction

1. Depe_rtment of Defense-Civil:

__ - 4 ) 3-) V A n Corps of Engineers-Civil: OO IIdO. I Corps of Engineers civil works mission - -- 7 3SO ) .1

  • I C General Investigations - 2 7 g g 3 -) ~2 S t.; l Construction, get;ers.1 -. -

Flood control, Mississippi River and tributades, Arkansas II.

4 27 19 ) ) ).9O linois, Kentuck 3$) ) "3 9

-.- 8 9

43 67 3333e OI I j Flood control and coastal emergencies

-- -- 67 Formerly Utilized Sites Remedial Action Program . . 9 68 General erpenses . 9

- . 68 Administrative provision . . - 10 __

d II. Department of the Interior:

Central Utah Project ecmpletion soeount 10 61 Bureau of Reclamation:

Water and related resources .

11 61 Bureau of Reclamation loan program sceount --

12 72 Central Valley Project restoration fund - . 18 75 California Bay. Delta ecosystem restorstion .- - 14 75 49-082

.......-- ~. -.... -

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y

,t 58 i fighting and rescue operations, and flood repair8 of11ood contThis activity provides for flo l RN 59 eral hurricane or shore protection works. It also providesC frol an,d Fed.

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gency supplies of clean drinking water where th or emer-contaminated and, in drought distressed areas,e source has been provision of ade-qu:te supplies of water for human and livestock consumption ApPfopriation 1998.-

Budget Estimate,1999 --

Z NN t h

No from ances funds are required for fiscal year 1999, because car ryover bal-i Chief of Engineers the Division ce of Offices, pated needs. previous appropriations are adequate to meet antici- i the l statistical functions, of the Corps of Engineers The Committee .

research and -

FORMERIX Ifrit.n.stn SITES REMEDIAL l ACTION Appropriation.1998 -

g PROGRAM

$148,000,000, recommendation for the same as the budget request. GeneralI Budget Esthnale.1999 -

$140.000.000 Remmmended.1999 -

Cesaparison-140.000,000 ';

Appropriation.1998 -- _- 140,000,000 Budget Eetianese,1999_ _

The Committee recomme i

Remedial Action Program (ndation for the Formerly Utilized Sites-FUSRAP) is $140,000 i the budget request. In fiscal year 1998 Congres,000, the same as cponsibility the U.S. Army Corps for ofcleanup En of contaminated s transferred sites re-under FUSRAP t  ;

o to the Corps of Engineers, gineers. In appropriating FUSRAP funds i the responsibility for administration and executithe Committee intended to transfer only

t tivities at eligible sites where remediation had not bon of cleanup ac- '

I It did not intend to transfer ownership ofityand een completed. accou 3 t bil ,

re;l property interests that remain withnathe Department o nergy.

for I fE  !:

The Committee expects the Department inditutional knowledge and expertise neededrovide to btheto continue to p ,

tion snd the affected communities in rogram. executing this pest serve the Na.- h cf hucrdous, toxic, and radioactive e cleanup wastes through itsThe Corps of Engineers has ,jj e ii Department of Defense and other Federal work for agencies the Th C , ,

intenda for the Corps expertise to be used .

in the sam!

e ommittee i; the cleanup Ccrps to continueofprogram contaminated sites under FUSRAP e manner for I and ex ts the i of the civil works program. ming and budgeting for,FUSRA7as I part  !

There were concerns that the transfe would unnecessarily delay the program.r of FUSRAP to the Corps -,'

the Committee has been very pleased to datThis did not happen and  !

e. However to enter into an agreement on theeenfunctionspartment unable i

i of Energy and the Corps of Engineers hav ,!

i fice has been very helpful during ,

ennessee e program,,but theof- transition of thrumed by the Corps. The Department' ,

issues which must be resolved ave not epart-at the IIcadquarters level hxen cddressed expe .

i JndIrstanding ween the two agencies a to remedy any may misunderstanding orandum of exist be-thatnent and the Corps of Engineers to e ,

, o the cleanup program.s to the roles and responsibilities related ,

gl hange ofinformation and resolution of future issuesThis

. l is essential to improving the ex- i Itlen' tb GENERAL EXPENSES ,

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3p 49296 . Federal Register / Vol. 60, No.- 184 / Friday, September 22,1 995 / Notice's d >

2.Radioactiveenaterialnot pgulated . 9;The Department of Energ (DOE) ' -

')d .

~ Uranium Mill Facilities, Notice of Two undef the AEA shall not be authorized . and the Statein which the tal.y ,

Guidance Documents: FinalRevloed impoundment is located,should be . * [

for disposalin an 11e.(2) byproduct i]I I'

Guidance on Disposal of Non-Atomic Energy Act of 1954, Section 11e.(2) materialim undment. -

  • Informed of the Nuclear Regulatory t
3. S nuclearmaterialand 4 Commission findings and proposed

!' Byproduct Materialin Tallings . Section 11e.(1) byproduct material-

~

action, with a request to concur within *

, impoundments; Final Position and ~

120 days. A concurrence and waste should not be considered as I- Guidance on the Use of Uranium Mill candidates for disposalin a tailings - commitment from either DOE or the .t - - -~

Feed Materials Other Than Natural impoundment,without compelling State to take title to the tailings . .

Ores -

-,_s_... ?e.- 'c '.1__r reasons to the mntrary,if staff talleves -~ impoundment after' closure must be M

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$q; AGENCY: Nuclear Reguhtory .' " ' ' that such material should be disposed of received before granting the license M i /

lq / Commission.

in a tailings impoundment in a specific - amendmenttothe11e.(2) licensee. ' G instance, a request for approval by the , i 10.The mechanism to authorize the lL ACnON: Notice of Snal guirlanm.

Commission should be papared., . . disposal of non.11e.(2) byproduct .a

' material in a tallings impoundment is

SUMMARY

The U.S. Nuclear Regulatory 4.The 11e.(2) licensee must g

Commission has finalized two uranium jlemonstrate that the materialis not . - an amendment to the mill lianse under: 2 10 CFR part 40, authorizing the receipt s mill licensing guidance documents after subject to applicable Resource . q consideration of comments rewived in . Conservation and Recovery Act (RCRA) of the material andits disposal. t . <- j

- msponse to a request for public . regulations or other U.S. Environmental Additionally, an exemption to the ' ' >

comment in a Federal Register notice Protection Agency (EPA) standards for ' requirements of to CFR part 61, under ted. 4 hazardous or toxic wastes prior to the authority of 5 61.6, must be j

published May 13,1992 (57 FR 20525).

Only minor changes were made to the disposal. To further ensure that RCRA (If the tallings impoundment is ted ]

hazardous waste is not inadvertently in an Agreement State with low. level 5 proposed guidance documents titled,

" Revised Guidance on Disposal of Non. disposed ofin milltallings waste hcensing authority, the State must 1' i

? Atomic Energy Act of 1954, Section hnpoundments, the 11e.(2) licensee also take appropriate action to exempt the ' -'

must demonstrate, for waste con'ainini non.11e.(2) broroduct material from 11e.(2) Byproduct Material in Tallings -

source matedal, as defined under the reguladon as Tow-level waste.) The Impoundments" and " Position and AEA,that the waste does not also hanse amendment and the $ 61.6 l l j*

I Guidance on the Use of Uranium Mill-contain material classiSed as hazardous exemption should be supported with a ji '

'j Feed Materials Other Than Natural waste according to 40 CFR part 261.In stananalysis addressing the issues

's Ores." addition, the licensee must demonstrate ., discussed in this guidance. .I i ADDRESSES: Copies of the mmments and that the non-11e.(2) material does not '

the NRC staff responses, as well as contain material regulated under other FinalPosition and Guidana on the Use l i' SECY-91-243, can be examined at the Federal statuter, such as the Toxic of Uranium Mill Feed MaterialOther -

Commission's Public Document Room Substances Control Act.nus, source Than Natural Ores.

'd at 21201. Street NW. (lower level), '

staff reviewing licensee requests to - ,

material physically mixed with other.  :

4 '

Washington DC. ..

material, would require evahistion in proass alternate feed material (material' '

, FOR FURTHER INFORMADON CONTACT: accordance with 40 CFR part 261, or 40 other than natural ore)in uranium mills

'I * "" CFR part 761. (These provisions would should follow the guidance presented ; ,

'o h, ty d Safegu ,U.S. cover material such as: .*i below. Besides reviewing to determine ,

Nuclear Regulatory We e apWm of .

Washington, DC 20555:Commission, telephone '(301) Chanctedsd4 hazardous vwaste-listedhazardouswaste;and

  • ndix A of to CFR part 40 staff '

./

afould also address the following i 415-6629. ' polychlorinated biphenyla.)'he . -

~' i d

demonstration and testing should follow issues:

d ,

SUPPLEMENTARY INFORMADON:

[

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PmtoCO 2. Determination of Whether the Feed Final Revised Guidance on Disposal of "$ht (2 can m Non. Atomic Energy Act 0f1954' Materialis Ore - .

. demonstrate that there are no _

Section 11e.(2) Byproduct Material in Comprehensive Environmental . For the tallings and wastes from the-

  • y  ; proposed processing to quahfy as ',

Tallings impoundments Response, Compensation and Liability - '

A lh Act issues related to the disposal of.the 11e.(2) byproduct material,the feed _

Jh 1. In reviewing licensee requests for material must qualify as "cre.** In .

non.11e.(2) byproduct material. -

$ 's the disposal of wastes that have determining whether the feed material

8. The sie.lf) licensee must M -

gd radiological characteristics comparable to those of Atomic Energy Act (AEA)'of demonstrate that there willbe no ' is are, the following definition of ore -

~

, 3- must bepsed:

1954, Section 11e.(2) byproduct material. algniScant environmentalimpact from.

disposing of this material' E W -- Ore is a natural or native matter that - '

(hereafter designated as **11e.(2) ,

7. ne 11e.(2) licen'see must - - +~ may be mined and treated for the

_ 'y byproduct material")in tailings ;' ^ demonstrate that the proposed disposal extraction of any ofits constituents or ia -

- N impoundments, staff will follow the will not emnpromise the reclamation of any other matter from which source" c-5 guidance set forth below. Sisa mill the tailings impoundment by a materialis extracted in alicensed o 1 tailings impoundments are already demonstrating compliance with the > ' uranium or thorium mill. c 1 regulated under 10 CFR part 40, reclamation and closure criteria of " o- 2. Deternhnation of Whether the Feed

_y licensing of the rece t and disposal of MaterialContains Hazardous Waste .. ,

1 e 2 licenseem provide r 'non.$1 (2 b u t ] documentation showing approval by the . If the proposed feed material mntains

' should also be one under to CFR part Regional low-Level Waste Compact in - hazardous wasts, listed under subpart D l'-d 40' $$ 261.30-33 of 40 CFR(or comparable whose jurisdiction the waste originates '

  • RCRA authorized State regulations)ilt : ~'

2 *)* .- ' - -

d*',*'[, ~,'"""# Y' aswhosewell jurisdiction as approval by the the disposal sits isCompact

- would be in subjects to EPA (or State) -

' . ,. , ,p.c regulation under RCRA. To avoid the

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Federal Register /-Vel 60 No.184 / Friday, September'22,1995 / Notices '~

49297 complexities of NRC/ EPA dual .

regulation, such feed material will not certi8 cation. Be lustification can be deduction of a mortality and expense 1

be approved for processing at a licensed based on financial considerations,risk the .

charge from the asats of any other -

high uranium content of the feed -

mill.If the licensee can show that b ~ separate accounts ("Futum Acmunts")

proposed feed raaterial does not contain material, or other grounds. The , oftablished in tha future by Golden a listed hau-dous waste, this issue is determination that the proposed promssing is primarily for the source Amerian in connection with b

] resolved. . offedng of the Future Contracts. .

j matedal content must be made on a J Feed material exhibiting only a mee-speciBc basis. Famo DATE:The app!! cation was Bled *

- characteristic of hawdous waste _ . . . J_ on May 11,1995, and a(nonded on . - -

A (ignitable, corrosive, reactive, toxic) Ifit can be determined,using the f

  • August 29,1995. -.' '

would not be aforementioned guidanos,that the" '

! .$ I sted as hazardous proposed feed materialmeets the

_ , . waste and coul therefore be approved - definition ofore, that it will not . orderHEAnno OR NonricAn0N ting the application'will be OF HEA d' 4 for recycling and extraction of source  ?

introduce a hazardas weste nu ,

issue unless the Commienion orders a fa ntarial. However, this does not apply . otherwise exempted, and that the hearing. Interested persons may request w nsiduos from water treatment, so -  !

primary purpose of its proonssing is for a hearing by writing to the Secretary cf i!

acceptance of such residues as feed the Commission and serving Applicants material will de ad on their not its source-material cantent, the request t can be approved. -

with a copy of the request, rsonsDy at *

"" "# by mall. Hearing requests a ould be  ; ,.

  • "I'I"I"8 ""{azardous waste Staff characteristic .

Dated at Rockvtlle, Maryland, this 13th day received by the Commission by 5:30 '

Q,* "* ^

  • ofSepwmber Des. -

p.m. on October 10,1995, and abould be fd a For the Nuclear Regulatory rh=laanon. - accompanied by proof of service on ii j

whether tl.a feed material contains I***Phf.Holmakh,

APPucants in the form of an afBdavit ar, hazardous waste

  • Chl'/.n/shamel waste and uranfum for lawyers, a certificate of service.

flecoveryProjects Bmach.DMslon of We,te . Hearing requests should state the nature t.

3. Determination of Whether the Ore is Atanagement. Offun of Nuclear Material ,  !

Being Processed Primarilyforits Source. SaferyandSafeguards. . of the requestor's interest, the reason for >

Materfd Content

  • the request, and the issues contested.
  • For the tallings and waste from the (FR Doc. 95-23531 Filed 9-21-es: 8:45 aml Persons may request notif! cation of a amo cooe ne*+ .

hearing by writing to the Secretary.of -

proposed processing to qualify as ,

11e.(2) byproduct material, tLe ore must the Commission.

be crocessed primarily for its source.

, addresses: Secretary, Securities and SECURITIES AND EXCHANGE Nhange Commission,450 5th Street, 7 material content. nere is concern that COMMISSION NW.. Washington, DC 20549.

westa that would have to be disposed pet. No, sc.41andNo. Stag A PPi lcants, c/o Mitchell M. Cox, Esq.,

cf as radioactive or mixed waste would be proposed for processing at a uranium Vice President, Assistant Secrstary and mill primarily to be able to dis Golden Amwican Ufelosurance Apociste General Counsel, Golden  !

it in the tallings pile as 11e.(2) pose ofCompany, et al..

American Life Insurance Company, byproduct material. In determinf ng September is, tees. ' >

, 2001 Jefferson Avenue,4th Floor, whether the proposed processing is Wilmington, Delsware 19601.

AGENCY:SecurillM and bhanym -

primarily for the source-material , FOR FURTHER #NFORMAn0N 00NTACT:

content or for the disposal of waste, Commission ("SEC" ot "thmia=!on"). Yvonne M. Hunold, Amistant Special ACn0N: Notice of Appucation for an Counsel, or Patrice M. Pitts, Special either of the following

c. Co-disposaltest: tats can Determine if the be used: Order underthe Investment Company. Counsel, OfBm ofInsurance Products ,

feed material would be approved for Act of 1940 ("1940 Act"). ' (Division of lavestment Management), at t i disposal in the tallings impoundment (202) 942-0670.

~

APPucAwrs: Golden American Life i !

under the " Final Revised Guidance on Insurance -

suPFtnirNTARY sNFoResATs0N:The Disposal of Non, Atomic Energy Act of American,).Company (' Golden foM h a sumary d 6e 1954 Section 11e.(2)Byprodum. I Account B, )Separate Acmunt B and Separate Account D spphadadeple a i l

Material in Tallings impoundments," or I, Account D"--4ogether with Aa.ount available for a fee from the bpheauon b b!!c  ! .

revisions or replacements to that

~ guidance. If the material would be rpproved for disposal,it can be B, , Separate Accounte '), and Direded Services, Inc. ("DS!"). '

Reference Branch of the r'nmmisalon.

Applicants' Representation

)I I:

i RELEVANT 1MD ACT SECn0N: Order concluded that if a mill operator requested under Section 6(c) of the 1940 1. Golden American is a stock life insurance company authorized to do proposes primarDy fortothe process it, the processing source-material is Act granting exemptions from Sections ' business in all jurisdictions, 12(b),26(a)(2) and 27(c)(2) thereof and tNew e

~ - content. The material would have to be . . Rule 12b-1 thereunder. - -~ York. Golden American is a wh C- - - -

physicaDy and chemically similar to . owned subsidiary of BT Variable, c. .

suuwAny oF APrucAn0N: Applicants '

11e.(2) byproduct material and not be seek an order permitting the deducion and a whoUy-owned indirect subsidiary .

subject to RCRA or other EPA of mortality and e of Bankers Trust Company. -

noe risk ch 2.The Separate Acx:ounts were hazardous-waste regulations, as including an amet-

~

enhan estabhahed by Golden American as discussed in the guidance. death benefit charge, from the assets of

segregated asset accounts to fund

b.Ucensee cert /fication and the Separate Accounta in connection fustification testr ne licensee must variable annuity contracts. Account B is '

with the offering of artain variable , registered under the 1940 Act as a unit oortify under oath or a!!irmation that the , annuity contracts (" Contracts") and feed materialis to be processed investment trust. Account Dis certain other variable annuity contracts registered under the 1940 Act as a non-p:imarily for the recovery of uranium and for no other p purpose. ne ('Tuture Contracts") issued in the future diversified open.end management -

by Golden American that are materially company. Registration statements on Boonese must also lusti e, with .

reasonable documentation, the - ,,,

similar to the Contracts. Apphcants also Form N-4 and Form N-3, registering the 7

requwt that the order permit the . Contracts as securitiu under the s

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, HAP 26 '96 02 2P>t1 FCP A CLEAH TOH. SITE FU MJPE tU P.2 i

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. .v. . e (For A Clean Tonawanda Site) .

" PUTTING THE PIECES TOGETHER" l l

Box 566 - Phone: (716) 876-9552 Kenmore, NY 14217 0566 Fax- (716)876 9552 Mr, Dennis Sollenberger Oflice of State Programs U S. Nuclear Regulatory Commission Washington, D.C. March 26,1996 l l

Subject:

Unregulated Radon Release from Browning Ferris, Inc/s Niagara Landfill (onc )

of the radioactively contaminated properties in the energy Department's Tonawanda NY FUSRAP Site)

Dear Mr. Sollenberger:

The purpose of this letter is to record the points I made during our phone ,

conversation of yesterday, to make additional comments, and to provide a partial list of I parties interested in receiving copies of NRC communications on this issue.

Yesterday I referred to a February 29, 1996 letter from Paul Merges, Chief, Bureau of Radiation, NYSDEC, to Craig Gordon, U.S. NRC, Region I, in which Dr.

Merges has sought written confirmation from NRC that New York State cannot license the FUSRAP wastes because they are ll(c)(2) materials which are not specifically addressed in New York's Agreement with the federal NRC; that only NRC can license these wastes; that, "as a matter of policy (which NRC has not publicly distnbuted), the i NRC does not seek to regulate 11(c)(2) material that DOE has included in the FUSRAP i program, even though DOE does not own the material" (and DOE currently has no plan  ;

to remediate the landfill: the sitewide EIS process was suspended two years ago [in April i of 1994) and, despite DOE promises, the development of a sitewide remediation plan' ROD acceptable to the community has not and is not currently taking place). and that "as long as DOE is studying the site to decide on remdi9 al actions, NRC will still not assett regulatory control over the material."

I then refened to a March 20. 1996 letter from Paul Merges to Renee Voyt.

Permit Coordinator, Browning-Ferris Gas Services, Inc., which you said you had not i received. This letter states:

If this release were subject to permitting under part 380, a permit would l

probably be issued. As you know, we have asked the US Nuclear l

ligt')f'djfl,

, 11AP 26 '95 02:29Pl1 FOP A CLEm TOli. StTE FDl10PE fu P.3 Regulatory Commission for a written determination regarding our

! jurisdiction over the FUSRAP material (you were sent a copy of my February 29, 1996 letter to the NRC). If the NRC confirms our understandmg , we will not have the authonty to apply Part 380 to any activity involving the FUSRAP material, and the question of whether or not the Part 380 permitting threshold is exceeded will be irrelevant.

Enclosed with this letter to BFI was a copy of a NYSDEC report on radon gas samnting (Interim Report on the Radon Investigation at the Niagara Landfill, March 20, 1996) which you also had not received. I pointed out that the sampling results oflandfill gas passively venting through individual gas collection wellheads show radon concentrations ranging from 83 pCill to 299 pCi/l, levels roughly 800 to 3000 times the Table II, Column I limits of 6 NYCRR Part 380 and 10CFR20.

I indicated that faced with this now documented public health threat the community will not accept this sudden possibility of a regulatory vacuum. I said that a purpose of the Atomic Energy Act is to provide regulatory authority over these materials in order to pro'ect public health. You said that NRC was reviewing the matter, that NYSDEC's puible lack of authority to license the FUSRAP wastes may prevent NYS from requiring prompt remediation (removal of the FUSRAP wastes from the landfill),

but that this did not necessarily rr.ean NYSDEC could not apply Part 380 to control release of the FUSRAP wastes. I said that if NYSDEC in fact lacks authonty to apply Part 380 to the FUSRAP wastes, then we would expect NRC to immediately license the owner of the wastes and regulate any release of radioactive material, including radon, under the provisions of 10CFR20. I also said that I would provide you a list of interested parties (attached).

Briefly, I wish to make the following additional points: 1) For two years NYSDEC's Bureau of Radiation has led us to believe that they had authonty to regulate the FUSRAP waste under Part 380 We objected to NYSDEC's basis (two questionable sets of DOE calculations) for the mitial decision not to require a Part 380 permit application from BFI Now, presumably after receiving the vent results, NYSDEC suddenly raises the jurisdiction issue. We believe this raises serious questions of competence or integnty, or both. 2) While we agree that the results noted above now clearly show a Part 380 pennit application to be required, it is improper for Dr. Merges to predict in advance that such a permit would probably be issued,3) We do not believe there is sufficient evidence to support Dr. Merges contention that "it is likely that most of the vented radon onginates m the solid waste itself, the soil used for cover, and the soil beneath the waste"; we do know there is about one cune of FUSRAP radium in the landfill (according to DOE)

, 11RR 26 '96 02130Pl1 FOR A CLEAN TOl4. SITE VElItJPE if/ P.4 3-Finally, in the February 29,1996 letter to NRC's Craig Gordon, Dr. Merges has I requested a quick decision on the regulatory status of the radioactive material by March l 31,19% "[b}ecause of the permit applications this Department has before it for the  !

clectric generating project" We have previously been told by NYSDEC that BFI would not make a construction decision on the cogen facility until the flow of biogas had been assessed for a year. We expect NRC to conduct a thorough review of this situation.

Sincerely, Rwk 1 L. r.

James Rauch Enclosure cc:Gaig Gordon General Counsel, Benderson Development Co.

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Partial I ist ofinterected Parties j l.

. Ms ' Alex Cukan i l Sierra Club Niagara Group I i PO Box 591 l l Checktowaga, NY I4225 j l

Mr. AndrewGoldstein ButTalo Greens 210 Franklin St., Suite 501 ButTalo,NY.14202

, Mr. Ralph N. Krieger Pres., Local 8-215 OCAW 263 Exchange St.

Alden,NY 14004 Mr. Pat Martin 2851 West Blood Rd.

East Aurora,NY 14052 t

Mr. Michael Skoney  :

Pres.,Tonawanda School Board 86 Clinton St.

Tonawanda,NY I4150 Mr. Bill Watson 771 Fletcher St.

Tonawanda,NY 14150 g .

4 Mr. James Rauch &

Mr. Don Finch, Editor FACTS Newsletter Box 566 Kenmore, NY 14217-0566

Dear Messrs. Rauch and Finch:

This letter is in response to your letters of Marctg 26, September 4 and September 6, 1996, to Dennis Sollenberger in the Office of State Programs and your September 30, 1996, letter to Jeffrey Bartlett in the Office of thh General Counsel. In your letters you express concern regarding radioactive materialin the local Seaway (Niagarn) landfill. In particular, you raise questions regarding the Nuclear Regulatory Commission's (NRC) regulatory jurisdiction over materialin the seaway thndfill and request that NRC assert regulatory control over that material. Given the tim since receipt of your initial letter in March 1996, and your subsequent letters, we are pr viding an interim written response at this time.

Dr. Sollenberger has reviewed the status of our activiti s to review and resolve this issue with you by phone. He has discussed with you our Apg il 23,1996, response to Dr. Paul Merges, regarding our understanding of DOE's plans unser the FUSRAP program relative to the Seaway landfill. He also indicated that NRC staff is horking to resolve the issues of (1) regulation of FUSRAP material while remediation of the materialis under evaluation by DOE and (2) New York State or NRC regulatory jurisdictio over the radioactive material present in the landfill.

We willinform you as soon as we complete our analysis, prgvide that analysis to the Commission for their review, and receive any specific directs n from the Commission on these issues.

Sincerely, Richard L. Bangart, Ciirector Office of State Progra'ms Distribution: g DIR RF DCD (SP03) -,

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  • November 12, 1996 Mr. James Rauch and Mr. Don Finch, Editor FACTS (For A Clean Tonowanda Site)

Box 566 Kenmore, NY 14217-0566

Dear Messrs. Rauch and Finch:

g We have prepared this letter in response to your letters of March 26, September 4, and September 6,1996 to Dennis Sollenberger in the Office of State Programs and your September 30, 1996 letter to Jeffrey Bartlett in the Office of the General Counsel. In your letters, you express concern regarding radioactive material in the Seaway (Niagara) Landfill. In particular, you raise questions regarding the Nuclear Regulatory Comission's (NRC) regulatory jurisdiction and responsibilities over material in the Seaway Landfill and request that NRC assert regulatory control over that material.

Since the receipt of your first letter in March 1996, Dr. Sollenberger of my staff has discussed over the telephone with you the status of our activities to review and resolve this issue. In response to your more recent requests for information, we have prepared this letter to document these earlier comunications and provide you with information on NRC's current efforts on this issue. As Dr. Sollenberger indicated to you earlier, NRC sent an April 23, 1996 letter to Paul Merges of the New York State Department of Environmental Conservation addressing some of the jurisdictional issues relevant to the site (see enclosed). The current conditions at the Seaway Landfill present some unusually complex jurisdictional issues that have proven difficult to resolve. Accordingly, the NRC staff has been working to resolve the issues of (1) HRC regulation of FUSRAP (Formally Utilized Site Remedial Action Program) material while remediation of the material is still under evaluation by the Department of Energy (DOE); and (2) New York State or NRC regulatory jurisdiction over the radioactive material present in the landfill.

After the NRC staff completes this analysis, it will be forwarded to the Comission for review. We will inform you as soon as the NRC staff receives any specific direction from the Comission on these issues. Untii that time, if you have additional questions, please contact Paul Lohaus in the Office of State Programs at (301) 415-2326.

Sipcerely.

bd4 a 4 Richard L. Bangart, Dir r Office of State Program

Enclosure:

As stated T fp /1 96/20(o/t[f

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J F.A.C.T.S.

(For A Clean Tonawanda Site)

" PUTTING THE PIECES TOGETHER" Box 566 Phone: (716) 876-9552 Kenmore, NY 14217 0566 Far (716)876-9552 COMMENTS ON " ENGINEERING EVALUATION / COST ANALYSIS (EE/CA) FOR

.3UILDING 30 AT PRAXAIR", NOVEMBER 1996, U.S. DEPT. OF ENERGY James M. Rauch December 20, 1996

1) Since DOE's release of the Tonawanda Site Environmental Impact Statement (EIS) review documents and the cleanup plan alternatives in 1993, the Tonawanda community has demonstrated s overwhelming support for Alternative #2, i.e. the complete removal of the 371,000 cubic yards of radioactive wastes identified by DOE in those documents to a suitable off-site long-term storage location. F.A.C.T.S., a DOE-recognized stakeholder group repre-senting health, environmental, worker and resident interests in the Tonawanda community, has actively and consistently supported this thorough cleanup plan.

The DOE established the FUSRAP (Formerly Utilized Sites Remedial Action Program) in 1974 for the stated purpose of cleaning up properties contaminated by nuclear weapons production operations of the U.S. Army's Manhattan Project and the Atomic Energy Commission (DOE predecessors) to a level of residual contamination that would enable DOE "to certify the sites for unrestricted use following decontamination, to the extent possible." (page 3,

" Remedial Actions at Four FUSRAP Sites in New York: Notice of Intent to Prepare an Environmental Impact Statement", February 22, 1988, DOE) It in possible to fully decontaminate the Tonawanda Site for unrestricted use (see EIS Alternative #2).

As used in the phrase "to certify for unrestricted use", the term " unrestricted use" has a specific meaning: that pattern of human use which results in the greatest radiation dose to the site user, generally accepted to be a " resident farmer" use scenario.

It does not include patterns of limited use, for examplo industrial use scenarios or open space use scenarios, where substantial limitations on both the time of exposure and the possible pathways of radiation exposure are assumed, allowing the derivation of lesser cleanup levels. Such uses are restricted uses.

It is evident that DOE desires to limit cleanup of its l

contamination at the Tonawanda Site properties as much as possible.

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DOE hopes the property owners and the community will accept a very -

limited cleanup of these properties based on their existing limited i use or current Town of Tonawanda zoning plans. Anyone who follows i local zoning board actions knows that they are subject to political  !

vagaries and special interest influence. It is unrealistic to expect that they will-maintain restrictions on use of the FUSRAP-contacinated properties. For this reason, following an open and extensive public discussion pursuant to an Environmental Impact l Statement process, the U. S. Nuclear Regulatory Commission (NRC)  :

developed a regulation (10 CFR Part 61.59) specifying that land use i restrictions can be considered to remain effective, and therefore l be employed as a radioactive waste management tool, for a time period not to exceed 100 years. l Given the indefinite duration of the radioactive hazard (500,000 years), the expectation of continued high population density in the Tonawanda area for the foreseeable future and '

. corresponding pressures to more intensively re-use the properties, the likely inability or unwillingness of future governments to '

place or to maintain restrictions on the use of the contaminated #

private properties, and the availability of much better physical sites where the long-term isolation of the wastes is both better i assured and more cost-effective, we believe the original FUSRAP goal of cleanup for unrestricted use makes sense and is essential if we are to adequately protect many future generations of site users from elevated rates of radiation-induced death and injury.

Alternative #2 is the only EIS alternative that will fully -

discharge DOE's congressionally-mandated responsibility under the FUSRAP. l Why, then, does this EE/CA list as its objective: "to certify l sites for appropriate (DOE doublespeak for restricted) future use",  ;

l instead of the FUSRAP's stated goal, as set out in the Notice of l Intent, "to certify for unrestricted use"? What has changed (other I than the current crop of management at DOE)? Has the hazardous nature of the radioactive material changed? Were the licensing and regulatory requirements prescribed in Title 10 of the Code of l ' Federal Regulations Part 40 (pursuant to the Atomic Energy Act of ,

l 1954 and subsequent statutes) and applicable to Tonawanda's i " byproduct" materials (formerly included under " source" materials) somehow magically suspended in the 1950s?

2) In our comment (a)(2) on DOE's January 1996 "EE/CA for Praxair Interim Actions" (demolition of Building 38 and removal of the soil pile), we pointed out that the surface decontamination requirements  !

for release of f acilities specified in the NYS Department of Health j regulation NYCRR Part 16, Appendix A, Table 7 are more stringent i than the guidelines selected by DOE (Order 5400.5). In its May 1996 " Responsiveness Summary" to comments on that EE/CA, DOE states r i on page 10 that "(t)he DOE and Nuclear Regulatory Commission (NRC)

, surface contamination guidelines (shown in Appendix C) are similar

to the NYCRR Table 7 values".

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In fact, the NRC Regulatory Guide 1.86 provides guidelines for  !

a subset of alpha-emitters including radium-226 and thorium-230:

100 dpm/100 cm* average, 300 dpm/100 cm* maximum, and 20 dpm/100 cm*

removable, that are, in all three cases, 50 times more stringent than the DOE-selected Order 5400.5 guidelines (5000, 15000, and 1000). In addition, the NRC Guide specifies that "where surface contamination by both alpha- and beta-gamma-emitting nuclides exists, the limits established for alpha- and beta-gamma-emitting i nuclides should apply independently." The NY Part 16, Table 7 l regulations limit alpha-emitters to 500, 2500 and 100 dpm/100 cm*, l average, maximum and removable, respectively. l How then can DOE claim that "(1)t is expected that use of the DOE and NRC surface contamination guidelines will result in cleanup of surfaces to levels which will meet the NYCRR Appendix 16-A, Table 7 criteria" (page 11, " Responsiveness Summary"), or the even more stringent NRC criteria? A review of the count data ranges and averages presented in Figure 4 of this EE/CA shows, for example, that readings of the average fixed alpha-emitter contamination in the walls and floor exceed the NRC criteria but not the DOE For DOE's claim to be true, all of the surveyed areas guidelines.

that are radioactive waste by the more stringent NRC alpha-emitter criteria must also coincide with those areas determined by DOE's beta-gamma criteria to be waste. This is highly unlikely.

Instead, it is possible that significant quantities of Building 30 material, material that is radioactive according to NRC and NYS criteria, could be disposed of in local solid waste landfills by DOE as "cleen" material. We say this because page 9 of DOE's " Responsiveness Summary" states "(i)f building materials meet the uranium surface release criteria (1,000 disintegrations per minute (dpm)/100 cm* removable, 5,000 dpm/100 cm" total)By, then the materials could be disposed in a licensed landfill." "li-Have censed" we assume DOE means a licensed solid waste landfill.

any such Building 38 materials been disposed of in a solid waste landfill?

On page 11 of this EE/CA it is stated that " clean material could be disposed at solid waste landfills or recycled." We have repeatedly reminded DOE that, prior to an agreement by stakeholders on cleanup criteria that is set down in a final remediation plan and Record of Decision (ROD), any such disposition of FUSRAP-contaminated material will violate the NEPA/ CERCLA review process prescribed for the Tonawanda Site. We have done this most recently in a September 28 letter to Mr. James Owendoff, Deputy Assistant Secretary for Environmental Restoration (attached).

3) During the demolition and volume reduction of Building 38 we received reports suggesting that radioactive dust may have been released directly exposing workers and perhaps nearby residents.

Were continuous worker and site perimeter air monitoring data collected for the duration of the demolition period? Where are they available for public inspection?

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i We do not believe this EE/CA gives an adequate description of the proposed action or the risks posed by it. As was the case with From the Building 38, will the demolition area not be enclosed?

limited data presented, it appears that the contamination of Building 30 may be considerably greater than that of Building 38.

For example, the maximum fixed alpha contamination on the walls in Building 38 was reported as 29,500 dpm/100 Building 30 cm*,

also less than contains a tenth consider-that reported in Building 30.

able wood and is much larger than Building 38. Since the contami-nation is quite heavy and the building substrate is likely to release dust during demolition and volume reduction (crushing and grinding), we do not believe watering, portrayed in DOE's August 1996 "Tonawanda Site FUSRAP Update" (attached), to be an adequate We request measure to control that a Birdair stylethe release oftotal temporary radioactive dust.

enclosure be utilized to assure containment both during demolition and subsequent storage of material pending agreement on final cleanup criteria.

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'd F.A.C.T.S.

(For A Clean Tonawanda Site)

" PUTTING THE PIECES TOGETHER" Box 566 Phone: (716) 876-9552 Kenmore, NY 14217-0566 Far (716) 876-9552 o3 8

n Richard L. Bangart, Director d

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Office of State Programs y -$

U.S. Nuclear Regulatory Commission =

Washington, DC 20555-0001 December 27, L996 c.a

Dear Mr. Bangart:

C F.A.C.T.S. is a public interest, environmental / educational, not-for-profit group. We are the only non-governmental " community coalition stakeholder" recognized by the Department of Energy in the NEPA/ CERCLA EIS environmental review process prescribed for DOE's Tonawanda, NY FUSRAP Site.

Our interest in the site is to see that past management errors are not continued or repeated, and to ensure that a safe and thorough removal of the wastes is accomplished and the most efficient, secure long-term waste management strategy is henceforth employed for Tonawanda's Manhattan Project (now FUSRAP) wastes.

This is why we first wrote to NRC on March 26, 1996, sent three more letters in September 1996, and why we are again writing today.

For these reasons, elaborated in our previous letters to both NRC and DOE and in our comments on each of DOE's Tonawanda EE/CAs (enclosed), we need NRC to promptly define and to fulfill its responsibilities concerning the following Tonawanda site issues:

1) To date, has New Ycrk State ever had legal authority to, license and regulate Tonawanda's Manhattan Project wastes? We do not understand why it should take nine months to answer this question. Please explain the reason (s) for this delay. We also request that NRC immediately provide us a copy of New York State's original 1963 Agreement State Agreement and all subsequent amendments thereto.

Our recently-initiated legal research into the question of who historically had and who currently has regulatory jurisdiction over the FUSRAP wastes incticates that:

a) f' rom the outset, the Manhattan Project waste materials met the " Source Material" definition and, as such, were subject to the licensing and regulatory requirements of Title 10 of the Code of Federal Regulations, Chapter 1, Part 40, issued pursuant to the 6 ,-  ?

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Atomic Energy Act of 1954 and then administered by NRC's predeces-sor agency, the former U.S. Atomic Energy Commission (AEC),

b) New York became an Agreement State in October 1963, perhaps giving it the authority to license and regulate the Manhattan Project wastes. To date, NYSDEC's Barbara Youngberg has failed to provide us a copy of the original Agreement, and subsequent amend-ments thereto, as promised during her visit to Tonawanda on December 11, 1996. Of course, New York State authority, if it was ever granted, would be in addition to the AEC's, and successor agencies' including NRC's, existing responsibility to control these materials, as described in a) above, as well as in 10 CFR Part 150, specifically Section 150.15(a)(5), " Persons not exempt" [27 FR 1352, Feb. 14, 1962],

c) Section 40.2a(b) [45 FR 65531, Oct. 3, 1980] was subse-quently added to 10 C.F.R. Part 40, stating "(t)he Commission [NRC]

will reaulate byproduct material as defined in this Part [ includes Tonawanda's Hanhattan Project wastes] that is located at a site where milling operations are no longer active, if such site is not covered by the remedial action program of Title 1 of the Uranium Mill Tailings Radiation Control Act of 1978. The criteria in Appendix A of this Part [" Criteria relating to the operation of uranium mills and the disposition of tailings or wastes produced by the extraction or concentration of source material from ores processed primarily for their source material content] will be apolied to such sites" [ emphasis added). The Tonawanda, NY Site was not included under UMTRCA and, therefore, Tonawanda's Hanhattan Project wastes were and are subject to Section 40.2(b),

d) additional pertinent regulations, contained in Section 150.15a, " Continued Commission authority pertaining to byproduct material", Section 150.31, " Requirements for Agreement State regulation of byproduct material" and Section 150.32, " Funds for reclamation or maintenance of byproduct material", were also added at this time [45 FR 65536-7, Oct. 3, 1980].

2) Since your November 12 reply to our September 30, 1996 letter to Jeffrey L. Bartlett in the Office of General Counsel, DOE has issued another EE/CA proposing another " interim" action covering the demolition of Building 30 at the Linde/Praxair property of the Tonawanda, NY FUSRAP Site. As indicated above, our comments on this EE/CA are enclosed.

We are concerned that the DOE's Order 5400.5 guidelines and decontamination criteria being utilized in " interim" removal actions under this and an earlier Tonawanda EE/CA and Categorical Exclusion (see our earlier comments, also enclosed) are not equivalent to either the pertinent NRC decontamination and decommissioning criteria or applicable state agency, NYSDOL and NYSDEC, criteria and guidelines.

The NYS Department of Labor's " Acceptable Surface Contamina-tion Levels" specified'in Table 5 of 12 NYCRR Part 38 requires that

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fivefold lower average, maximum and removable contamination levels be met for Th-nat, Th-230, and Ra-226 compared with those listed in DOE Order 5400.5. Yet, according to a July 11, 1996 letter to us from Rita Aldrich, Principal Radiophysicist at NYSDOL (enclosed),

"Praxair does have a radioactive materials license issued by this l Department, and the building contamination was listed on the l license, although legally, New York State lacks jurisdiction over the contamination." There seems to be a contradiction here. How can New York have had the authority to issue a license covering the Manhattan Project materials but not have the authority to apply state regulations, e.g. Part 38, to control those materials? Has NRC, or any of its predecessors, ever issued any licenses to Linde/Praxair covering the Manhattan Project wastes present on this property?

Ms. Aldrich also maintains that the NRC's Regulatory Guide '

1.86 criteria and NYSDOL's Table 5 criterid "are the same", which is not completely true, and "that DOE is using the same verifica-tion contractor, to perform surveys to confirm that the decontami-nation criteria have been met, as is used by the U.S. Nuclear Regulatory Commission, and that the contractor concurs that the criteria are consistent with Regulatory Guide 1.86." From a health and safety perspective, does NRC believe DOE's Order 5400.5 residual contamination criteria to be equivalent, to either NRC's Regulatory Guide 1.86 criteria or NYSDOL's Part 38, Table 5 criteria? Please explain why, or why not. Are these three sets of criteria also equivalent in terms of satisfying DOE's obvious main purpose, i.e. segregating the Tonawanda materials into the smallest possible radioactive waste portion and a larger " clean" portion?

Again, why or why not?

Although DOE says it "will continue to store clean material onsite at the Praxair facility until a site-wide remedy is selected" and DOE maintains that "the completed and planned interim actions ... do not preclude long-term cleanup alternatives for the site" (see enclosed November 7, 1996 reply to our September 28, 1996 letter to DOE's James Owendoff), the simple fact remains that DOE is premature in spending money to segregate radioactive materials from " clean" materials using criteria that have not been endorsed by the Tonawanda community. We think such expenditures are prejudicial and violate the sites's prescribed environmental review process since the scarce resources DOE is committing to these activities will be largely wasted if the final remediation criteria, which are to be selected by all Tonawanda stakeholders, necessitate a second segregation operation.

We hope that NRC appreciates the importance we attach to these issues. Meaningful public participation, as prescribed by the

! NEPA/ CERCLA Tonawanda environmental review process, requires the timely disclosure of information relevant to the process. The information we have requested above is pertinent to the Tonawanda decisionmaking process. We look forward to prompt and thorough answers to all of our questions.

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Sincerely, j t

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James Rauch 3

- Enclosures cc: R. Aldrich, NYSDOL B. .Youngberg, NYSDEC l.

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F.A.C.T.S.

(For A Clean Tmuwanda Site)

" PUTTING THE PIECES TOGETHER" w

Box 566 Kenmore, NY 14217-0566 Phone: (716)876- 2 Fax: (716) 876- 2 b$

Richard L. Bangart, Director

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office of State Programs 49 U.S. Nuclear Regulatory Commission D3 7

Washington, DC 20555-0001 January 4, 1998

Dear Mr. Bangart:

This letter summarizes my-telephone conversations with you on 2-21-97 and 12-29-97 as well as F.A.C.T.S.' previous correspondence with NRC concerning the FUSRAP Tonawanda Site, and also makes specific requests.

Over 21 months ago, in our 3-26-96 letter to Dennis Sollenberger, we raised the issue of NRC's responsibility to regulate the 11e(2) byproduct materials (produced under MED/AEC contracts) at the FUSRAP Tonawanda Site.. In that letter, and in the subsequent.9-30-96 letter to Jeffrey L. Bartlett in_the office of the General Counsel, we requested that NRC regulate a state-identified radon' release problem at one of the Tonawanda Site properties, the Seaway property, by exercising license control of the radon-generating byproduct materials in the Niagara Landfill located at that property. In your 11-12-96

- response to these letters you. indicated that'NRC staff was

- working.to resolve " complex jurisdictional issues", and that as soon as.this analysis was completed, it.would be forwarded to the Commissioners for review. Subsequently, we were to be informed

^of any specific direction from the Commission regarding our request. In the absence of a response, and with Browning-Ferris Industries having commenced operation of an optional active gas extraction system at the landfill, and with DOE proceeding with interim cleanup actions at the Linde property using cleanup criteria much less stringent than either NRC's or New York State's, we sent you our detailed letter of 12-27-96. I phoned you on 2-21-97 to inquire about the status of the review. Your responses to my questions indicated that staff had done little to address this issue. We discussed the 4-23-96 " interim response" letter to NYS Department of Environmental Conservation's Paul Merges which acknowledges that New York does not have regulatory jurisdiction over these wastes under the Agreement between the NRC and New York. I pressed you for documentation of New York's lack of jurisdiction. You agreed that greater discipline was called for in addressing both the jurisdiction and licensing issues, but you would not give me a schedule with an end date. I said that this response was unsatisfactory.

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l In our 12-29-97 telephone conversations, you said that a l letter on this issue was going out to us the following week pending the expected completion of a parallel letter to Paul l Merges. I requested that we be sent a copy of this letter to Paul Merges. You said that at least one meeting with DOE representatives had been held, "maybe in the summertime", that t staff had determined following this meeting that there was no l need to go to the Commission with this issue, that NRC staff believes that neither NRC nor New York State has jurisdiction, derived from the Atomic Energy Act of 1954 as amended by the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA),

over these byproduct materials, and that lacking jurisdiction NRC does not plan to review the proposed cleanup for the FUSRAP Tonawanda Site. I disputed the accuracy of the staff's jurisdiction assessment, citing Title II of UMTRCA and Title 10 CFR Part 40.2a(b). You then expressed doubt about staff's evaluation and indicated your need for reassurance on this matter through further consultation with management at General Counsel.

I also again requested clarification of the NRC position and documentation of same on the question of New York State jurisdiction over lle(2) byproduct materials or lack of jurisdiction, since the effective date of UMTRCA's additional )

Agreement State requirements. '

We await expeditious action and prompt receipt of NRC's official response letter on these matters.  ;

Sincerely, UY l

l James Rauch l cc: Paul Merges, NYSDEC i

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y g\ UNITED STATES g ,j t NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 30086 4001

  • , ,* February 6,1998 Mr. James Rauch

. _F.A.C.T.S.

Box 566 Kenmore, NY 14217-0566

Dear Mr. Rauch:

I am responding to your letters of December 27,1996, and January 4,1998, in which you requested information on the jurisdictional issue of the regulation of material designated for clean-up under the Former1y utilized Sites Remedial Action Program (FUSRAP) and the appropnate standards to be applied to demonstrate that clean-up has been accomplished.

In our letter dated November 12,1996, we informed you that we would analyze issues related to NRC and State jurisdiction over radioactive materials placed in the Seaway Landfill and other sites which are part of the U.S. Department of Energy (DOE) FUSRAP. We have completed our evaluation of the materials and sites in the Tonawanda area and are responding to the jurisdictional issue for those sites only. This evaluation involved complex legal and policy issues which contributed to the delay in this response.

As a general matter, NRC and Agreement States have regulatory authority over radioactive materials covered under the Atomic Energy Act of 1954, as amended. Agreement States are States which have assumed regulatory authority over the use of certain radioactive material, after the discontinuance of authority by NRC. However, in discussions with DOE FUSRAP representatives, they have clarified the classification of the material at the Tonawanda sites (Ashland 1 Ashland 2, Linde Air Products, and Seaway Industrial Park) as 11e(2) byproduct -

material (as defined by the Atomic Energy Act, as amended) that was generated prior to 1978 ,

and was not produced in any activity licensed by NRC as of November 8,1978, when the Uranium Mill Tailings Radiation Control Act (UMTRCA) was passed amending the Atomic Energy Act. Under UMTRCA, NRC and some Agreement States that amended their agreements have jurisdiction over 11e(2) byproduct material at facilities which were licensed as of 1978, but no jurisdiction was conferred by UMTRCA over byproduct material at facilities which were not licensed as of 1978, such as the Seaway Landfill and the other Tonawanda sites. Therefore, neither the NRC nor the State of New York Agreement State Program has junsdiction derived from the Atomic Energy Act, as amended, over the material at the Tonawanda sites. Of course, the State of New York may have State jurisdiction other than that which would derive from its Agreement State program under the Atomic Energy Act such as authority over radium hazards. Similarly, certain local govemment agencies may have some junsdiction. In light of NRC's lack of jurisdiction, we do not plan to review the clean-up standards that DOE applies to remediation of these sites.

In recent legislation, Congress reassigned responsibility for FUSRAP to the U.S. Army Corps of Engineers. The implications of this change are still under review. However, since the material at the four Tonawanda sites is pre-1978 byproduct material, the implementing agency change does not change the material's status, i.e., it is not subject to regulation by the NRC.

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James Rauch FEB 0 61998' In your letter, you referred to 10 CFR 40.2a(b) and questioned why this section was not being implemented at the Tonawanda sites. Section 10 CFR 40.2a(b) applies to sites at which ore was processed under 10 CFR Part 40, but no longer active as of November 8,1978, and not covered under Title I of UMTRCA. The Statement of Considerations for the initial UMTRCA rules noted that, "the legislative record of the mill tailings legislation [ Title ll) makes it clear that the expanded definition of byproduct material covers only mill tailings or wastes, which are exclusively associated with 10 CFR 40 licansing matters," 44 FR 50012 (August 24,1979).

The materials at Tonawanda were not associated with processing of ores under 10 CFR Part 40; therefore, these materials are not within the scope of 10 CFR 40.2a(b).

I hope this clarifies your concem on the jurisdiction for the remediation of the contaminated sites in your area.

Sincerely, k4t Osu Richard L. Bangart Director,,id 1 f

Office of State Programs ;'/

cc: Rita Aldrich, NYSDOL Barbara Youngberg, NYSDEC Ron Kirk, DOE Oak Ridge Paul Merges, NYSDEC

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,,,,, February 6,1998 i

Paul J. Merges, Ph.D., Chief Bureau of Pesticides & Radiation Division of Solid & Hazardous Material New York State Department of Environmental Conservation 50 Wolf Road, Room 402 Albany, NY 12233-7255

Dear Dr. Merges:

I am responding to your letter dated March 12,1997, in which you asked a general question and four specific questions about NRC jurisdiction over several sites in the Tonawanda, New York area which contain 11e(2) byproduct material, and are part of the Department of Energy's l

(DOE) Formerly Utilized Sites Remedial Action Program ( FUSRAP).  !

With respect to your general question about lack of NRC jurisdiction over these sites, DOE representatives have clarified that the classification of the material at the Tonawanda sites '

(Ashland 1, Ashland 2, Linde Air Products, and Seaway industrial Park) is 11e(2) byproduct material (as defined by the Atomic Energy Act, as amended) that was generated prior to 1978 and was not produced in any activity licensed by NRC as of 1978, when the Uranium Mill Tailings Radiation Control Act (UMTRCA) was passed amending the Atomic Energy Act. Under UMTRCA, NRC and some Agreement States that amended their Agreements have jurisdiction over 11e(2) byproduct material at facilities which were licensed as of 1978, but no jurisdiction was conferred by UMTRCA over byproduct material at facilities which were not licensed as of 1978, such as the Seaway Landfill and the other Tonawanda sites. Therefore, neither the NRC nor the State of New York Agreement State program has jurisdiction derived from the Atomic Energy Act, as amended, over the material at the Tonawanda sites. Of course, the State of New York may have State jurisdiction nther than that which would derive from its Agreement State program under the Atomic Energy Act such as authority over radium hazards. Similarly, certain local government agencies may have some jurisdiction.

In light of NRC's lack of jurisdiction over this material, we have no basis on which to address the four questions you raised in your letter.

In recent legislation, Congress reassigned responsibility for FUSRAP to the U.S. Army Corps of Engineers. The irnplications of this change are still under review. However, since the material at the four Tonawanda sites is pre-197811e(2) byproduct material, the implementing agency change does not change the material's status, that it is not subjet,t to regulation by the NRC or the Agreement State program.

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I hope this clarifies your questions on the jurisdiction for the remediation of the contaminated sites in the Tonawanda area.

Sincerely,

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Richard L. Bangart, Director /

Office of State Programs ,/

cc: Rita Aldrich, NYSDOL Barbara Youngberg, NYSDEC Ron Kirk, DOE Oak Ridge James Rauch, F.A.C.T.S.

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New York St;ta Department cf Environment:1 C:nrrv;ti n Division cf Solid & H:z:rd:us M;t:rints g Burru cf Pesticides & Radi:ti n a y

50 Wolf Road, Albany, New York 12233-7255 518-485-8991 FAX 518-485-8390 od.fA IL John P. Cahm Commissioner May 4,1998 Mr. Richard L. Bangart Director, Office of Stad. Programs U.S. Nuclear Regulatocy Commission Washington, D.C. 206t'6-0001

Dear Mr. Bangart:

Thank you for your letter to me dated February 6,1998, which responds to my letter to you ofMarch 12,1997 and my original request to Nuclear Regulatory Commission (NRC)

Region 1 of Febmary 29,1996. Your letter responds to ajurisdiction issue about the radioactive 11(e)2 material at the Tonawanda, New York, Formerly Utilized Sites Remedial Action Program (FUSRAP) sites. You conclude "Therefore, neither the NRC nor the State of New York Agreement State program has jurisdiction derived from the Atomic Energy Act, as amended, over the material at the Tonawanda sites." Your letter also states that Department of Encrgy (DOE) representatives clarified the classification of the material 11(c)2 byproduct material that was generated prior to 1978.

In order to clarify the position of the Nuclear Regulatory Commission you discussed in your letter, please advise me how this material is not under the jurisdiction of the Nuclear Regulatory Commission while it is in Tonawanda, New York, but comes under the NRC jurisdiction upon being disposed of at the Envirocare of Utah 11(c)2 disposal site? At what point in the transport of this 11(e)2 material does it come under NRC jurisdiction?

Please provide me a prompt response to this request for clarification, since 11(e)2 material of similar status as that in Tonawanda, New York, is being disposed of on a regular basis at the Envirocare site, and the U.S. Corps of Engineers has plans to do so in the near future for the Tonawanda sites.

Sincerely, 8

Paul J. Me res, Ph.D.

Director, Bureau of Pesticides & Radiation 3

Division of Solid & Hazardous Materials

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50 Wolf Road, Albany, New York 12233-7255 i

l 518-485-8981 FAX- 518-485-8390 I John P. Cahill g Commissioner Mr. Richard L. Bangart '

Director, Office of State Programs U.S. Nuclear Regulatory Commission Washington, D.C. 20666-0001 1 1

Dear Mr. Bangart:

In your February 6,1998, letter to me, you responded to questions I had posed regarding the NRC's jurisdiction over the 11(c)(2) by product material at the Tonawanda FUSRAP sites in New York State. With respect to those sites, you concluded that any questions about licensing of the Army Corps of Engineers' activities are moot because the NRC has no jurisdiction over i 11(e)(2) material that was not under license in 1978. We have one other FUSRAP site in New York State, to which this conclusion does not apply.

The former National Lead Industries Corporation (NL), in Colonie, New York, did not use 11(e)(2) material in its manufacturing processes. NL was authorized to possess special nuclear material and depleted uranium under both New York State and NRC radioactive I materials licenses.

A large volume of soil contaminated with this licensed material remains on site. The I Corps of Engineers and its contractors will be undertaking remedial actions, which will involve disturbing the material, removing it, and sending it to a licensed radioactive waste disposal i facility. This Department's regulations apply to the discharge and disposal of radioactive l materials, but there is an exemption for any activities regulated by the NRC. To coordinate our I

regulatory actions with the NRC, we need to know the scope of activities on site over which the  !

NRC has imposed or will impose its licensing authority. If the NRC has already advised the Corps on this issue, we would appreciate receiving a copy of any written guidance you have sent the Corps. l If you have any questions, please call me, l

Sincerely, r

i Paul J. ferges, Ph. .

Director, Bureau of Pesticides & Radiation Division of Solid & Hazardous Materials l

cc: R. Aldrich, NYSDOL R. Battaglia, USACE K. Rimawi, NYSDOH G. Thomas, USACE, NY District D. White, USNRC, Region 1

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Charl:s M. Hardin, Executive Director Confarance of R:diation Control )

Program Directors, Inc.

205 Capital Avenue Frankfort, KY 40601 l

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Dear Mr. Hardin:

Thank you for the June 11,1998, letter to Chairman Jackson submitting a resolution adopted by the Conference of Radiation Control Program Directors, Inc (CRCPD). The resolution requests that the Nuclear Regulatory Commission (NRC) reconsider its position on its lack of l jurisdiction over 11e(2) byproduct material processed before the enactment of the Uranium Mill Tailings Radiation Control Act (UMTRCA) of 1978. This reconsideration was requested with particular interest in the impact on the materialin the Formerly Utilized Sites Remedial Action Program (FUSRAP) with the transfer of the implementation responsibility from the Department of Energy (DOE) to the Army Corps of Engineers (COE).

The NRC staff has evaluated this issue. Until the passage of UMTRCA, the NRC did not have jurisdiction under the Atomic Energy Act of 1954 (AEA) over the wastes from the processing of ores for their source material content. Under UMTRCA Title 11 (42 USC Section 2014), the NRC assumed jurisdiction over the material at sites actively licensed at that time (1978). Materials at sites with terminated licenses are covered under Title I (42 USC Section 7911) of UMTRCA if they are designated in UMTRCA or were specifically designated by DOE or Congress.

However, UMTRCA does not address jurisdiction over much of the material covered under FUSRAP such as some of the material generated under the Manhattan project or materials under the control of DOE. DOE had already initiated the Formerly Utilized Sites Remedial l Action Program (FUSRAP) in 1974, four years prior to the passage of UMTRCA. Although I some of the materials at FUSRAP sites may meet the AEA definition of 11e(2) byproduct material, the material does not fall under the scope of either Title i or Title 11 of UMTRCA.

Therefore, the material does not fall under the NRC's regulatory authority nor that relinquished to the States through the Agreement State program.

We are concerned with public health and safety, but NRC is limited by its statutory authority and is required to work within those constraints. Thus , NRC considers it appropriate that your resolution also addressed an action to convey CRCPD's position to responsible benate and House Committees and Subcommittees. NRC hss been following efforts by COE, DOE and the Congress to clarify the jurisdictional questions related to the Corps' implementation of FUSRAP.

NRC will take any appropriate actions within our regulatory jurisdiction once this issue is i resolved.

Sincerely, l Richard L. Bangart, Director Office of State Programs Distribution:

DIR RF (8G384) DCD (SP03)

SDroggitis PDR (YES/)

BUsilton CRCPD File M' ]g' DOCUMENT NAME: G:\CRCPDRES.DMS C// W '

To receive a cop r of this document, Indicate in the box: "C* = Copy without attachment /enelosure *E* = Copy with attachment / enclosure *N" = No copy OFFICE OSPi n - - OSP:DD URB /DWM OGC l OSP;D l NAME DMSollenberger :gd PHLbhauso JJHolonich J FXCameron RLBangart DATE 06/4 98 06/'!,/98 06///98 06/ /98 06/ /98 OSP FILE CODE: SP-C-7

Dear Dr. Merges:

I am writing in response to your June 11 and July 9,1998 letters in which you requested the NRC's position on its regulatory responsibilities regarding the Colonie, New York site.

Congress assigned the site and its vicinity properties, which were formerly licensed by the Nuclear Regulatory Commissicn (NRC) and the States of New York under the State's Agreement State program, to the U.S. Department of Energy (DOE)in 1983. The site and its vicinity properties are currently being remediated under DOE's Formerly Utilized Sites Remedial Action Program (FUSRAP) by the U.S. Army Corps of Engineers (USACE).

Although the site and its vicinity properties were previously licensed by both the NRC and the State of New York, when Congress assigned these to DOE, both the NRC and the State terminated their respective licenses and DOE took possession of, and regulatory responsibility for, the site and its vicinity properties. All activities since that time at the site or vicinity properties have been conducted by DOE or its contractors; ttdrefore, they are not subject to NRC or the State's regulation.

Congress' assignment through approprii egislation of cleanup authority to USACE for the FUSRAP sites has left some uncertainty egarding the responsibilities of DOE and USACE;'

however, the NRC will continue to address the Colonie site as DOE owned. DOE is exempt from NRC licensing except where explicitly specified in legislation.

Sincerely, Richard L. Bangart

' We would note that the Senate Appropriations Committee Report on Defense Facilities Closure Projects indicated that "the Committee expects the Department [ DOE) to fulfill its responsibilities at FUSRAP sites, exclusive of remedial actions to be performed by the Corps."

In the same vein, the House Report on Energy and Water Appropriations stated that "[i]n appropriating FUSRAP funds to the Corps of Engineers, the Committee intended to only transfer the responsibility for administration and execution of cleanup activities at eligible sites where remediation had not been completed. We did not intend to transfer ownership of and accountability for the property interests that remain with the Department of Energy."

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