ML20203K717

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Responds to 961227 & s,Which Requested Info on Jurisdictional Issue of Regulation of Matl Designated for clean-up Under Formerly Utilized Sites Remedial Action Program
ML20203K717
Person / Time
Issue date: 02/06/1998
From: Bangart R
NRC OFFICE OF STATE PROGRAMS (OSP)
To: Rauch J
AFFILIATION NOT ASSIGNED
Shared Package
ML20203K719 List:
References
NUDOCS 9803050209
Download: ML20203K717 (8)
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yopc8Mc(k UNITED STATES 0* NUCLEAR REGULATORY COMMISSION W ^}t WAsHlWOToN D.C. m =1

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  • 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 4,19%, in which you requested information on the jurisdictionalissue of the regulation of material designated for clean up under the Formerfy Utilized Sites Remedial Action Program (FUSRAP) and the apprepriate 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 end policy issues which contributed to the delay in this response.

As a general matter, NRC and Agreement States nave 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 jurisdiction derived from the Atomic Energy Act, as amended, over the material at the Tonawanda sites. Of course, the State of N3w 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 jurisdiction, 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. k 9003050209 980206 PDR STPRO ESGN 4 g; ~~ q gg g

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!, I James Rauch FEB 0 619W j g

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 TMie I of UMTRCA. The Statement of Considerations for the initial UMTRCA  ;

j rules noted that, 'the legislative record of the mill tailings legislation [ Title ll) makes it clear that -

i the expanded definition of byproduct material covers only mill tailings or wastes, which are exclusively associated with 10 CFR 40 licensing 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 I sites in your area.

4 l Sincerely, k4t( Os t' ili f Richard L Bangart, Director Office of State Programs /

d cc: Rita Aldrich, NYSDOL l Barber: "tingberg, NYSDEC Ron Kirk, )vE Oak Ridge Paul Merges, NYSDEC ,

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J:nds R:uch 2 FEB 00 1Z8 I 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 2(b) applies to sites at which ore was ,

processed undar 10 CFR Part 40, but no longer active as of November 8,1978, and not l covered under Title 1 of UMTRCA. The Statement of Considerations for the initial UMTRCA l

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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 licensing matters,* 44 FR 50012 (August 24,1979). r The materials at Tonawanda were not associated with processing of ores under 10 CFR Part 40; therefore, these materials aru not within the scope of 10 CFR 40.2a(b).

I hope this clarifies your concern on the ),risdiction for the remediation of the contaminated sites in your area.

Sincerely, Orig 1nttlSlgned 99 RICHARD L BANGART Richard L Bangart, Director Office of State Programs cc: Rita Alditch, NYSDOL '

Bartara Youngberg, NYSDEC Ron Kirk, DDE Oak Ridge Paul Merges, NYSDEC Distribution:

DIR RF (BS326) DCD (SP05)

SDroggitis PDR (YES y' NO )

Deperiment of Energy File '

NY DOL File NY DEC File DOCUMENT NAME: G:\RAUCH.DMS *SEE PREVIOUS CONCURRENCE.

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OFFICE OSP OSP DD NMSS l OGC l OSP Dj(/ IV NAME- DSollenberger:nb:kk PHLohaus JHickey RFonner RLBangart' N DATE 01/23/98

  • 01/27/98* 01/28/98* 02/03/98* 02//6/98 OSF FILE CODE: SP-D-2; SP-AG 20 3; SP AG 20-4 _

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James M. Rauch 2-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 40.2(b) applies to sites at which ore was processed under 10 CFR Part 40, but rio longer active as of November 8,1978, and not covered under Title I of L!MTRCA. The $tatement of Considerations for the initial UMTRCA rules noted that, 'the legislative record of mill tallings legislation [Tdle ll) m6kes it clear that the expanded definition of byproduct mate 'al covers only mill tallings or wastes, which are exclusively associated with 10 CFR 40 licen ing matters,' 44 FR 50012 (August 24,1979).

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

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

incerely, Ric rd L Bangart, Director Offi of State Programs cc: Rita Aldrich, NYSDOL Paul Merges, NYSDEC Ron Kirk, DOE Oak Ridge Distribution:

DlR RF (6S326) DCD (SPOS) \

SDroggitis PDR (YES,f_ NO \ )

Department of Energy File NY DOL File NY DEC File DOCUMENT NAME: G:\RAUCH.DMS '8EE PREVIOUS CONCUP.R CE, t e.w . eer .e w. e. cum.at m ia m. w e em m eummenveneme. r . em e .nenm.av.nem,. r . wo eo OFFICE OSP OSP.DD NMSS _ OGC M \OSP:D l NAME DSollenberger:nb:kk PHLohaus JHickey DW RL8angart DATE 01/23/98

- - . - - _ - ~ . _ - - . . _ _ _ - . ._.. .-.

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' JCmel M. ROuch  :

4 in your letter, you referred to 10 CFR 40.2a(b) and questioned why his sectior. was not being -

implemented at the Tonawanda sites. Section 10 CFR 40,2(b) a ies to sites at which ore was-processed under 10 CFR Part 40, but no longer active as of Nove bor 8,1978, and not covered under Title I of UMTRCA. The Statement of Considerati ns for the initial UMTRCA l

rules noted that, "the legislative record of the mill tailings legislati n (Title ll] makes it clear that '

the expanded definition of byproduct material covers only mill taiings or wastes, which are exclusively associsted with 10 CFR 40 licensing matters," 44 F 50012 (August 24,1979).

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

l l hope this clarifies your concern on the jurisdiction for the re istion of the contaminated sites in your area.

l' Sincerol ,

! Richar L. Bangart, Director j Office of State Programs cc: Rita Aldrich, NYSDOL l Paul Merges, NYSDEC Ron Kirk, DOE Oak Ridge l

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I DIR RF (6S326)- . DCD (SPOS)

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Department of Energy File NY DOL File '

NY DEC File .

- DOCUMENT NAME
G:\RAUCH.DMS- *SEE PREVIOUS CONCURRENCE.

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OFFICE .OSP l -- OSP;DD l NhlSS l% OGC l OSP:D ~ l l NAME DSollenberger:nb:kk PHLohaus / JW RLBangart -

DATE- 01/23/98

J:mes M. Rauch In your letter, you referred to 10 CFR 40.2a(b) and questioned why this . ection was not being implemented at the Tonawanda sites. Section 10 CFR 40.2(b) applies o sites at which ore was processed under 10 CFR Part 40, but no longer active as of Novembe 8,1978, and not covered under Title I of UMTRCA. The Statement of Considerations $r the initial UMTRCA rules noted that, "the legislative record of the mill taPings legislation [Jitle ll) makes it cbar that the expanded definition of byproduct material c avers only mill tailings or wastes, which are exclusively associated with 10 CFR 40 licensing matters.' 44FR50p12 (August 24,1979) The materials at Tonawanda were not associated with processing of ores under 10 CFR Part 40; therefc,re, these materials are not within the scope of 10 CFR 40. a(b).

I hope this clarifies your concern on the jurisdiction for the reme iation of the contaminated sites in your area.

Sincerely Richar L; Bangart, Director Offic of State Programs cc: Rita Aldrich, NYSDOL Paul Merges, NYSDEC Ron Kirk, DOE Oak Ridge Distribution:

DlR RF (6S326) DCD (SP05)

SDroggitis PDR (YES.f__ NO )

Department of Energy File

- NY DOL File NY DEC File DOCUMENT NAME: G:\RAUCH.DMS *SEE PREVIOUS CONCURRENCE.

' Tn receive a cop ' of thee document. Indicate in the box: "C" = Co ethout attachmenvenclosure T = Copy eth attachmenvenclosure y a No copy l OFFICE OSP l OSP:DD[k / NMSS l OGC OSP:D lNAME DSollenberger:nb PHL6haus Nhp JHickey RLBangart lDATE- 01/23/98 * /01h]/98 7 01/ /98 01/ /98 01/ /98

' OSP FILE CODE: SP-D-2; SP-AG-20-3; SP-AG-20-4 l

Jim:s M. R:uch 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 40.2(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, whichpre exclusively associated with 10 CFR 40 licensing matters.' 44FR50012 (August 24,1,979) The materials at Tonawanda were not associated with processing of ores under 10 CF 'Part 40; therefore, these materials are not within the scope of 10 CFR 40.2a(b).

I hope this clarifies your concern on the jurisdiction for the remediation of tt[ contaminated sites in your area. /

/

Sincerely, e j

/

/

Richard (. Bangart, Director Office'of State Programs cc: Rita Aldrich, NYSDOL Paul Merges, NYSDEC Ron Kirk, DOE Oak Ridge T

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Distribution:

DIR RF (6S326) DCD (SP05)

SDroggitis PDR (YES.y' NO,_)

Department of Energy File

' NY DOL File NY DEC File DOCUMENT NAME: G:\RAUCH.DMS To receive a cop ' of thou document. Indicate in the boa: "C" e Copy without enachment/ enclosure "E" a Copy with attachment / enclosure "N" a No copy

OFFICE OSP (hyh OSP;DD NMSS OGC l OSP
D l NAME- DSollenberger:nb- PHLohaus JHickey RFonner - RLBangart DATE- 01/ WS3 01/ /93 ;01/ /98 01/ /98 01/ /98 OSP FILE CODE: SP-D-2; SP-AG-20-3; SP-AG-20-4

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TASK # - 6S326 DATE- 12/31/96 MAIL CTRL. - 1996 Ih!b.g{g{gg - 12/31/96 ((g{,ggg - 6.5/[/ {pg{,gggggg - / /

TASK DESCRIPTION - 12/27/96 LTR REGARDING DOE'S "TONAWANDA, NY FUSRAP SITE" REQUESTING OFF. - FACTS REQUESTER - J. RAUCH WITS - 0 FYP

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