ML20206H146
| ML20206H146 | |
| Person / Time | |
|---|---|
| Issue date: | 04/28/1999 |
| From: | Shirley Ann Jackson, The Chairman NRC COMMISSION (OCM) |
| To: | Judd C ENVIROCARE OF UTAH, INC. |
| Shared Package | |
| ML20206H149 | List: |
| References | |
| NUDOCS 9905110071 | |
| Download: ML20206H146 (2) | |
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'g UNITED STATES NUCLEAR REGULATORY COMMISSION WASHIN GToN. D.C. 206600001 e
April 28, 1999 CHARMAN i
Mr. Charles A. Judd, President Envirocare of Utah, Inc.
46 West Broadway Suite 240 Salt Lake City, Utah 84101
Dear Mr. Judd:
On behalf of the Commission, I am responding to your letter to Commissioner Merrifield dated January 25,1999, in which you requested that the U.S. Nuclear Regulatory Commission (NRC) revisit its position regarding NRC jurisdiction over 11e.(2) byproduct material produced as a result of processing ore before November 1978. You compared the NRC current position to the ,
NRC former policies on "Below Regulatory Concern" (BRC). In addition, you voiced a concern that the NRC position that we lack authority over certain pre-197811e.(2) byproduct material will allow such material to be disposed of in sanitary landfills. This letter also responds to a separate letter of February 3,1999, on the same subject from Mr. Anthony Breard, who at that time was your Manager of Government and Industry Affairs.
- In response to your concems, I will begin by clarifying that the NRC position on pre-1978 11e.(2) byproduct material is in no way related to the BRC policies. The NRC developed these policies in response to a Congressional directive in the Low-Level Radioactive Waste Policy Amendments Act of 1985. The BRC policies wers intended to establish a level below which NRC would not regulate low-level waste (LLW) and other practices. Although the NRC has the statutory authority to regulate all LLW, the BRC policies would have established a framework for exempting, by rule or license, certain LLW from regulation based on the judgment that the health and safety impact from such LLW would have been below regulatory concem. As directed in the Energy Policy Act of 1992, the NRC withdrew the BRC policies in 1993.
Unlike the BRC policies, the NRC statutory authority to regulate pre-197811e.(2) byproduct material is limited. NRC jurisdiction to determine the disposition of waste or tailings from ore processed primarily for its source material content at a site not licensed by the NRC on or after 1978, was established by Congress in the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA). Briefly stated, UMTRCA was enacted in 1978, amending the Atomic Energy Act of 1954 (AEA), and providing the NRC with jurisdiction over the byproduct material generated by the processing of ore at NRC-licensed sites. Section 83a. of the AEA was added by the UMTRCA and became effective on November 8,1978, when UMTRCA was enacted. That section provides that any NRC license issued pursuant to Section 62 (which addresses the licensing of activities regarding source material) or Section 81 (which addresses the licensing of activities regarding byproduct material), which was issued or renewed on or after the effective date of Section 83a., must include conditions and terms related to the final disposition of all mM*MNnaa tgoa i CORRESPONDENCE PDR
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byproduct material created by the activity at such sites, as well as the sites themselves.
Therefore, NRC has statutory authority for the pre-197811e.(2) byproduct material that exists ,
at sites licensed by the NRC on or after November 8,1978. The critical factor in determining
> the NRC jurisdiction over the byproduct material in question is whether the site at which the
. processing took place was licensed by the NRC on or after the date Sect;on 83a. became effective, not when the material was generated. As such, there are sites with pre-197811e.(2)
- byproduct material that are not under NRC authority, because these sites were not licensed by NRC at or after the time UMTRCA was passed. However, the pre-197811e.(2) byproduct -
material not regulated by the NRC is under the jurisdiction of other Federal and State agencies, including the Department of Transportation (DOT) and the Environmental Protection Agency (EPA).
Regarding your concern that disposal of unregulated pre-197811e.(2) radioactive waste would -
occur in community solid waste landfills, the U.S. Army Corps of Engineers (USACE), in its letter dated January 12,1999 (enclosure), has indicated its commitment to protect the public health and safety, and the environment under the Formerly Utilized Sites Remedial Action j Program (FUSRAP). The USACE states that it requires that "all waste materials sent off-site for disposal go to facilities with either a license or a federal or state permit for the proper disposal of these materials," and that off site shipments of FUSRAP waste will be transported in accordance with the Hazardous Materials Transportation Act,49 U.S.C. 65101 et seq. The
I trust that this reply clarifies our position and responds to your concerns.
t Sincerely,
$w LJ l
Enclosure:
As stated
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- s' a DEPARTMENT OF THE ARMY U.S. Arrny corps of Engineers WASHINGTON, D.C. 20314-1000 l
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Office of the Chief Counsel Karen D. Cyr General Counsel United States Nuclear Regulatory Commission Washington, DC 20555 V '
DearJVCyr:
I am writing in reference to correspondence dated October 15,1998, from the Natural Resources Defense Council (NRDC) to your agency. NRDC asserts that the cleanup work conducted by the United States Army Corps of Engineers (USACE) under the Formerly Utilized Sites Remedial Action Program (FUSRAP) is subject to the licensing requirements established by the Nuclear Regulatory Commission (NRC) pursuant to the Atomic Energy Act,42 U.S.C. l 2011 et seg. (AEA).
USACE disagrees with this conclusion on several grounds. First, pursuant to the Comprehensive Environmental Response, Compensation and Liability Act,42 U.S.C. { 9601 et seg. (CERCLA), AEA licenses are not required for portions of FUSRAP cleanup work conducted entirely on-site. Second, as a federal agency performing cleanup in furtherance of a Department of Energy (DOE) program, USACE need not seek a license from NRC. The AEA obviates the need for a license for DOE FUSRAP activity. Finally, Congress expressed its clear intent that USACE expeditiously proceed to cleanup FUSRAP sites unimpeded by procedural requirements outside CERCLA. Nevertheless, it is in everyone's interest that FUSRAP activity be conducted in an environmentally sound and safe manner. Therefore, USACE will meet the substantive requirements of all applicable or relevant and appropriate provisions of CERCLA and the AEA for on-site FUSRAP work and will comply with all license, permit, or registration requirements for off-site transportation and disposal of FUSRAP materials. _
USACE is authorized by Congress to conduct cleanup work at FUSRAP sita pursuant to the Energy and Water Development Appropriations Act,1998, Pub. L. No.105-62, and the Energy and Water Development Appropriations Act,'1999, Pub. L. No. 105-245. USACE conducts FUSRAP cleanup work in accordance with CERCLA. The 1999 Act clarifies Congressional intent that response actions at FUSRAP sites "shall be subject to the administrative, procedural, and regulatory provisions" of CERCLA and the National Contingency Plan,40 CFR Part 300 (NCP). Pub. L. No. 105-245, Title I.
The contamination at FUSRAP sites consists of hazardous substances as defined by CERCLA. The substances at FUSRAP sites are predominantly radionuclides, which are Enclosure
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4 hazardous substances under CERCLA. See 40 CFR Part 302, Table 302.4 (listing " radionuclides !
(including radon)" as CERCLA hazardous substances).*
CERCLA Section 121(c)(1) provides that no Federal, State, or local permit shall be required for the portion of any removal or remedial action conducted entirely on-site' and in compliance with CERCLA. 42 U.S.C. I 9621(e)(1 ). This section controls CERCLA response actions conducted by USACE at the FUSRAP sites. EPA has implemented this provision for federal agency CERCLA response actions' under Section 300.400(e) of the NCP. In the preamble to the current version of the NCP, EPA explained that the permit exemption applies to CERCLA response actions conducted by other federal agencies. 55 Fed. Red. 8666, 8689 (8 March 1990).4 l Mh respect to the FUSRAP program, Congress designated the Corps ofEngineers to conduct cleanup activity rA contaminated sites specifically because Congress was concerned with the pace and the cost of the cleanup activity at those sites. The permit exemption of CERCLA reflects a public policy that the cleanup of hazardous substances should be completed in as expeditious a manner as possible, while still meeting the substantive requirements of the environmental laws which would otherwise require a permit. 55 Fed. Reg. 8756.
Although the term " permit" is not defined in either CERCLA or the NCP, it is a term commonly used in environmental laws to refer to regulatory permission or approval to conduct l activities which are restricted by the governing statutes. Black's Law Dictionary dermes the term as, "In general, any document which grants a person the right to do something. A license or grant of authority to do a thing." Black'sIaw Dictionary (6th ed.1998). CERCLA equates the term " permit" with " license" in defining " federally permitted release" to include the release of materials licensed under the AEA. Sec 42 U.S.C. { 9601(10). Although thereis no explicit definition of" license" in the AEA, the term is used to refer to activities that may only be undertaken with the approval of the NRC as reflected in a document. Thus, a license issued under the AEA falls within the permit waiver provision of CERCLA. .
' 'these radionuclides are also potentially regulated radioactive materials under the AEA. Specific FUSRAP materials may meet the definitions of byproduct material or source matenal under Section 11 of the AEA. See 42 U.S.C. H 2014(e) and (z).
8 "The term % site' means the areal extent of contamiantion and all suitable areas in very close proximity to the conta=lamelon necessary for implementation of the response action." 40 CFR I 300.400(cXI).
s .Ibe permit waiver of Section 121(eXI) does not apply to private party response actions. See 40 CFR $
300.700(cX5Xiii).
- Although PUSRAP Laciudes sites both on the National Priorities List (NPL) and not on the NPL, neither CERCLA nor the NCP distinguishes between sites listed on the NFL and thoes not listed on the NPL for purposes of the permit waiver.
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The few cases that have addressed the meaning of CERCLA $121(c)(1) support the USACE position that an AEA license is not required for on-site FUSRAP work. In Ohio v. UnitedStates DivironmentalProtection Agency,997 F. 2d 1520 (D.C. Cir.1993), the Court of Appeals upheld the 1990 revision of the NCP on a number of challenges by certain states and interest groups.
One of the issues concerned the NCP interpretation of"onsite" for purposes of the 121(e)(1) i permit waiver, ne Court, and apparently the petitioners, accepted without challenge the )
application of the exemption to federal response activities under CERCLA, and the ruling upheld I the EPA regulations concerning the meaning of"onsite." 997 F. 2d 1520, at 1548 - 1549. The Tenth Circuit has also upheld this interpretation of Section 121(c)(1) in the discussion of the applicability of a local zoning ordinance in UnitedStates v. City and County ofDenver,100 F. '
3d 1509 (10* Cir.1996).
The issue is more directly addressed in McClellan Ecological Seepage Situation (MESS) v.
Cheney,763 F. Supp. 431 (E.D. Calif.1989). McClellan held that a RCRA permit was not required when activities which might otherwise require an RCRA permit took place at the site only as part of a CERCLA removal or remedial action. The subsequent history of this case clarifies the reason why so few cases address the permit waiver issue. The District Court decision was overturned on appeal, not disapproving of the permit ruling, but rather finding that the jurisdictional bar of CERCLA Section 113(h) prevented the District Court from taking jurisdiction of the case, even under a RCRA challenge, except for ongoing independent RCRA hazardous wnste management activities. McClellan EcologicalSeepage Situation v. Perry, 47 F.
3d 325 (9* Cir.1995), cert. denied, 516 U.S. 807 (1995).
The Atomic Energy Act also exempts FUSRAP activity from NRC licensing. Although the NRC regulates other government agencies in a variety of circumstances, the AEA obviates the requirement for an NRC license for on-site remediation pursuant to DOE's FUSRAP Program.
The AEA definition of the term " person" includes a " Government agency.other than the Commission." 42 U.S.C. 6 2014(s) (emphasis added). The " Commission" referred to in that definition is the former Atomic Energy Commission (AEC). See 42 U.S.C. I 2014(f). DOE, the successor to the AEC,8 is self-regulating while conducting FUSRAP pursuant to CERCLA ~
remediation. Nevertheless, Congress directed USACE "to clean up contaminated sites throughout the United States where work was performed as part of the Nation's early atomic energy program." Pub. L. No.105-62,105-245. This language refers to the same atomic energy program that was under the direction of the AEC. Thus, Congress intended for USACE to fill the shoes of the AEC successor agency responsible for FUSRAP cleanup, that is DOE, an agency not considered a " person" subject to licensing under the AEA. Affording USACE the same status as DOE with respect to licenses for on-site FUSRAP work is consistent with the s De AtomicEnergy Commisalon was abolished and its functions transferred to the Nuclear Regulatory Commission and the Administrator of the Energy Research and Development Mministration (ERDA).See 42 U.S.C. Il 5814,5841. BercaAct, the ERDA was abolished and its functions transferred to the Secretary of Energy.
See 42 U.S.C. ll 7151(a),7293,
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4 express congressional intent that transfer of FUSRAP cleanup responsibility to USACE be smooth and efficient. Imposing license requirements to which DOE was not subject would be inconsistent with the intent of Congress.
In directing USACE to administer and execute FUSRAP, Congress has not expressed an intent that USACE acquire AEA licenses prior to remediating FUSRAP sites. The report language accompanying Public Law 105-62 indicates that Congress expected a seamless transition of j FUSRAP from the Department ofEnergy (DOE) to US ACE. See H.R. Conf. Rep. No. 271,105*
' Cong., l' Sess. 7 (1997). Congress intended that USACE follow the path that DOE set, making improvements where possible. The conferees expected the relevant agencies "to make every effort to ensure that this transition goes smoothly, that execution of the program is maintained in l accordance with current schedules, and that overall performance is improved."Id There is no ,
mention of a role for NRC in licensing on-site FUSRAP work performed by USACE,just as i there was no NRC involvement in on-site FUSRAP work conducted by DOE prior to the transfer. A requirement that USACE obtain AEA licenses to perform on-site FUSRAP activities cannot be reconciled with Congress' stated intent to improve the efficiency of the program by transferring it to USACE.
The absence of a requirement to obtain a license for on-site FUSRAP remedial activities does not render the AEA provisions inapplicable. USACE recognizes that as part of the conduct of remedial action at any specific site, USACE must comply with the substantive requirements of the AEA and its implementing regulations that are applicable or re!evant and appropriate to CERCLA response actions involving AEA regulated radioactive materials. See 42 U.S.C.
9621(d)(2). The NCP preamble clarifies that the substantive requirements oflaws which would otherwise require permits must be followed as applicable or relevant and appropriate requirements (ARARs) under Section 121(d)(2), even though the procedural requirements of permits do not need to be completed. 55 Fed. Reg. 8756 - 8757. Compliance includes consultation as appropriate with the government agency that would otherwise have authority over an applicable permitting program. Id USACE also acknowledges that the NRC licensing may apply to the conduct of the portions of FUSRAP response actions conducted off-site, in areas to which the permit waiver does not apply. See 40 CFR l 300.400(e)(2). Where the AEA requires that only persons with a license may transfer, possess, use or process materials removed from a FUSRAP site, USACE will ensure that only licensed persons receive the materials for those actions. USACE transports off-site shipments of FUSRAP waste in accordance with the Hazardous Materials Transportation Act,49 U.S.C. $ 5101 et seg. USACE also complies with all applicable NRC and EPA manifest requirements. USACE requires that all waste materials sent off site for disposal go to facilities with either a license or a federal or state permit for the proper disposal of these materials. We have and will continue to take a cautious approach in requiring that the disposal facility hold a permit or license in order to ensure that a governmental regulatory authority is providing
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oversight of the disposal facility. We are committed to the protection of the public health and the environment, as well as the safety of the workers at the disposal facilities that we use.
USACE is dedicated to working with the states, the Environmental Protection Agency (EPA), l and the local community to ensure that FUSRAP response actions are executed in accordance I with CERCLA. We encourage public participation by honoring the community involveinent requirements of CERCLA and the NCP. See 42 U.S.C. 9617; see also 40 C.F.R. 300.415, 300.430. USACE believes that continued relations with federal and state regulators, as well as the public, will result in safe and efficient response actions at FUSRAP sites.
This review of CERCLA 121(c)(1), the implementing provisions of the NCP, as explained further in the 1990 preamble, and the case law reflect a consistent and seldom challenged position that no federal, state or local permits or licenses are required for the conduct of on-site CERCLA response actions by federal agencies. USACE has followed this position throughout the entire time that we have been executing cleanup work at FUSRAP sites. USACE also acknowledges that the substantive provisions of NRC regulations are ARARs for many of the FUSRAP response actiorts and looks to the NRC for guidance in interpreting and implementing these requirements on the sites.
If you wish to discuss this matter, you may contact me at (202) 761-0018. Should your legal staff have questions on this issue, please contact Nxile Simpson of the Office of the Chief Counsel at (202) 761-0911, or Ann Wright, Counsel for the Hazardous, Toxic and Radioactive Waste Center of Expertise for USACE at (402) 697-2466.
Sincerely,
!./ b Robert M. Andersen ~
ChiefCounsel Copy Furnished:
General Counsel, United States Department of Energy
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