ML20206H328
| ML20206H328 | |
| Person / Time | |
|---|---|
| Issue date: | 04/28/1999 |
| From: | Shirley Ann Jackson, The Chairman NRC COMMISSION (OCM) |
| To: | Judd C ENVIROCARE OF UTAH, INC. |
| References | |
| NUDOCS 9905110165 | |
| Download: ML20206H328 (11) | |
Text
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$Y UNITED STATES Distribution:
k NUCLEAR REGULATORY COMMISSION Travers
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S WASHINGTON, D.C. 20666-0001 KDapp 5
Miraglia Norry
,m, April 28, 1999 Blaha aperiello, NMSS Lusher, NMSS Cyr, 0GC Merschoff, RIV G19990131 G19990132 ED0 r/f Mr. Charles A. Judd, President Envirocare of Utah,Inc.
48 West Broadway Suite 240 i
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 Govemment and Industry Affairs.
In response to your conce6ns, 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 L ow-Level Radioactive Waste Policy i
Amendments Act of 1985. The BRC policies were intended to establish a level below which NRC would not regulate low-level waste (LLW) and other practices. Although the NRC has the
. statutory autnority to regulate all LLW, the BRC policies would h?Ne estabiished a framework for exempting, by rule or license, certain LLW from regulation based on theiudgment 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 materialis limited. NRC jurisdiction to determine the disposition of waste or tailings from ore pic-:::::i primarily for its source material content at a site not licensed by the NRC on or after 1978, was establitned by Congress in the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA). Briefly stated, UMTRCA was enacted in 1978, amending the Atomic En 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 a
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2 byproduct material created by the activity at such sites, as well as the sites themselves.
Therefria, NRC has statutory authority for the pre-197811e.(2) byproduct material that exists I
at sites ik.ensed by the NRC on or after November 8,1970. 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 licensqd by the NRC on or after the date Section 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 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. 5101 et seq. The USACE also must comply with applicable NRC, EPA, and DOT manifest requirements.
I trust that this reply clarifies our position and responds to your concerns.
Sincerely,
& da a
Enclosure:
As stated 1
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DEPARTMENT OF THE ARMY
~ U.s. Army Cens cf Engineers -
WASHINGTON, D.C. 20314-1000 UM% or, 12 JAN gggy Of5ce ofthe ChiefCounsel KarenD. Cyr General Counsel United States Nuclear Regulatory Commission Washington,DC 20555 ye
Dear [Cyr:
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 ofEngineers (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. 6 2011 et seg. (AEA).
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USACE disagrees with this conclusion on several grounds. First, pursuant to the Comprehensive Environmental Response, Compensation and Liability Act,42 U.S.C. I 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 isin 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 sites pursuant to the Energy and Water Development Appropriations Act,1998, Pub. L. No.10542, 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 L
'Ihe contamination at FUSRAP sites consists of hazardous substances as defined by CERCLA. 'Ihe substances at FUSRAP sites are predominantly radionuclides, which are Er. closure L?$CQffh. -
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hazardous substances under CERCLA. See 40 CFR Part 302, Table 302.4 (listing " radionuclides (including radon)" as CERCLA hazardous substances).8 CERCLA Section 121(e)(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 %21(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 With respect to the FUSRAP program, Congress designated the Corps of Engineers to conduct cleanup activity at 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 activities which are restricted by the governing statutes. Black's Law Dictionary defines the i
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 Dictionwy (6th ed.1998). CERCLA equates the term " permit" with " license" in defining " fed. rally permitted release" to include the release of materials licensed under the AEA. See 42 U.S.C. I 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 radacective materials under the AEA. SpeciSc FUSRAP 8
materials may meet the de5nitions ofbypraiuct material or source material under Section 11 of the AEA. See 42 U.S.C. H 2014(e) and (s).
8 "The term 'on-site' means the arvel extent of contamination and all suitable areas in ve y close proximity to the c==*=salanalan necessary for implementation of the response action " 40 CFR { 300.400(eX1).
s.!he pennit waiver of breiam 121(eXI) does not apply to private party response actions. See 40 CFR I 300.700(cX5Xiii).
- Although PUSRAP includes sites both on the National Priorities Ust (NPL) and not on the NPL, neither GRCLA nor the NCP distinguishes between sites listed on the NPL and thoes not listed on the NPL for purposes of thepennitwaiver.
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The few cases that have addressed the meaning of CERCLA {l21(c)(1) support the USACE position that an AEA license is not required for on-site FUSRAP work. In Ohio v. UnitedStates EnvironmentalProtection 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 cedain states and interest groups.
One of the issues concerned the NCP interpretation of"onsite" for purposes of the 121(c)(1) permit waiver. The Court, and apparently the petitioners, accepted without challenge the application of the exemption to federal response activities under CERCLA, and the ruling upheld 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 ofDenwr,100 F.
3d 1509 (10* Cir.1996).
The issue is more directiy addressed in McClellan EcologicalSeepage 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 waste 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 t
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.
' Die AEA definition of the term " person" includes a " Government agency.other than the Commisr/on " 42 U.S.C. { 2014(s) (emphasis added). The " Commission" referred to in that definition is the former Atomic Energy Commission (AEC), See 42 U.S.C. { 2014(f). DOE, the successor to the AEC,s 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. 'Ihis 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 I
s The Atonnic Energy Pa==taalaa was =haHd=f and its functions trendemd to the Nuclear Regulatory ca==I=laa and the Ad=laimator of the Energy Research and Development Ad=laimeration (ERDA).See 42 U.S.C. ll 5814,5841.1herenAer, the ERDA was =halid=' and its fLaetians trandoned 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 FUSRAP from the Depsd... cat ofEnergy (DOE) to USACE. See H.R. Conf. Rep. No. 271,105*
Cong.,1" Sess. 7 (1997). Congress inten'ded 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 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 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 relevant and appropriate to CERCLA response actions involving AEA regulated radioactive materials. See 42 U.S.C.
%21(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. Complianceincludes 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
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ofFUSRAP 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 l
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. i 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 j
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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-i 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),
and the local community to ensure that FUSRAP response actions are executed in accordance with CERCLA. We encourage public participation by honoring the community involvement requirements of CERCLA and the NCP. Sec 42 U.S.C. 9617; see also 40 C.F.R. i6 300.415, 300.430. USACE believes that continued relations with federal and state regulators, as well u the public, will resuh 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 ofNRC regulations are ARARs for many of the FUSRAP response actions and looks to the NRC for guidance in interpreting and implementing 1
these requirements on the sites.
Ifyou wish to discuss'this matter, you may contact me at (202) 761-0018. Should yourlegal staff have questions on this issue, please contact Noelle 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,
{.
RobertM. Andersen ChiefCounsel CopyFurnished:
General Counsel, United States Department ofEnergy te GD
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byproduct material (i.e., material created by the processing of ore primarily f its source material content at sites not licensed by the NRC in November 1978 or the after). Because these sites were not licensed by NRC at the time UMTRCA was passed thereafter, NRC does not have authority over this material.
Regarding your concem that the consequence of NRC's position i t the unregulated pre-197811e.(2) radioactive waste may be disposed of in commun id waste landfills, the U.S.'
Army Corps of Engineers (USACE), in its letter dated January
,1999 (enclosure), has indicated its commitment to the protection of public health a safety, and the environment.
USACE states that it requires that "all waste materials sent
-site for disposal go to facilities with either a license or a federal or state permit for the pr er disposal of these materials," and that off-site shipments of FUSRAP waste will be tran ed in accordance with the Hazardous Materials Transportation Act,49 U.S.C. 65101 et USACE also complies with applicable NRC and U.S. Environmental Protection Agency m ifest requirements.
1 trust that this reply clarifies our position and re nds to your concems.
- incerely, 1
Enclosure:
As stated DISTRIBUTION:
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DEDR_ A OCM NAME CPaperiello FMiragN WTrh DATE 4/8/99 4/M/99 4/ b 4/
/99 OFFICIAL RECCMD COPY "This correspondence addresses policy issues previously resolved by the Commission, transmits factual information, or restates Commission policy."
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NUCLEAR REGULATORY COMMISSION A. Beard is no longer
,- j-q with Envirocare, so wAsmNGToN. D.C. 20056 4001 f
this letter is super-e
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ceded by letter to C. A. Judd, dtd. 4/28/99 CWM (G 990132)
Mr. H. Anthony Breard, Jr.
Manager, Govemment & Industry Affairs Envirocare of Utah,Inc.
46 West Broadway -
~ Suite 240, Salt Lake City, UT 84101
Dear Mr. Breard:
1 am responding to your February 3,1999, letter to Commi oner Merrifield,in which you requested that the U.S. Nuclear Regulatory Commission RC) reconsider its position regarding NRC Jurisdiction over byproduct material pr ced as the result of processing ore primarily for its source material content before 1978.
our concern is that pre-197811e.(2) byproduct material, otherwise known as Formerly U, ized Sites Remedial Action Program (FUSRAP) material, will not be carefully regulate.
The question of whether NRC has jurisdiction o determine the disposition of wastes or tailings from ore processed primarily for its source aterial content at a site not licensed by NRC on or after 1978 was addressed by Congress in e Uranium Mill Tallings Radiation Control Act of 1978 (UMTRCA). Briefly stated, UMTR A was enacted, amending the Atomic Energy Act of 1954 (AEA), and providing NRC with J 'sdiction over the byproduct material generated by the processing of ore at NRC-licensed sjtes. Section 83a. of the AEA was added by UMTRCA and became effective on November 8, 978, when UMTRCA was enacted. That section provides that any NRClicense issued pu nt to Section 62 (which addresses the licensing of activities regarding source material) or ion 81 (which addresses the licensing of activities regarding byproduct material), which w issued or renewed on or after the effective date of Section 83a.,
must include conditions and erms related to the final disposition of the byproduct material created by the activity at a h sites, as well as the sites themselves. The critical factor in determining NRC's jurisd' lon over the byproduct material in question is whether the site at which the processing t place was licensed by NRC on or after the date Section 83a. became effective, not when material was generated. There are sites that have pre-197811e.(2) byproduct material e., material created by the processing of ore primarily for its source material content a tes not licensed by NRC in 1978 or thereafter). Because these sites were notlicensed at time UMTRCA was passed or thereafter, NRC does not have authority over this material The fact RC lacks such authority does not'mean that the FUSRAP material will be allowed to a threat to public health and safety or to the environment. The U.S. Army Corps of ngineers (USACE), in its letter dated January 12,1999 (enclosure), has Indicated its
' comm ent to the protection of public health and safety, and the environment. USACE states thatit uires that "all waste materials sent off-site for disposal go to facilities with either a
'or a federal or state permit for the proper disposal of these materials," and that off-site ents of FUSRAP waste will be transported in accordance with the Hazardous Materials
- Transportation Act,49 U.S.C. $5101 et seq. USACE also complies with applicable NRC and U.S. Environmental Protection Agency manifest requirements.
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I trust that this reply clarifies our position and responds to your concems.
Sincerely, i
Shirley Ann Ja n
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Enclosure:
As stated t
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this letter is super-ceded by letter to C. A. Judd, dtd. 4/28/99 CHAMAN (G 990132)
Mr. H. Anthony Breard, Jr.
Manager, Govemment & Industry Affairs Envirocare of Utah,Inc.
48 West Broadway Suite 240, Salt Lake City, UT 84101
Dear Mr. Breard:
I am responding to you. February 3,1999, letter to Commi oner Merrifield, in which you requested that the U.S. Nuclear Regulatory Commission RC) reconsider its position regarding NRC Jurisdiction over byproduct material pr ced as the result of processing ore primarily for its source material content before 1978.
our concem is that pre-197811e.(2)
. byproduct material, otherwise known as Formerly U ized Sites Remedial Action Program (FUSRAP) material, will not be carefully regulat The question of whether NRC has jurisdiction o determine the disposition of wastes or tailings from ore processed primarily for its source aterial content at a site not licensed by NRC on or after 1978 was addressed by Congress in e Uranium Mill Tallings Radiation Control Act of 1978 (UMTRCA). Briefly stated, UMTR A was enacted, amending the Atomic Energy Act of 1954 (AEA), and providing NRC with sdiction over the byproduct material generated by the processing of ore at NRC-licensed
- s. Section 83a. of the AEA was added by UMTRCA and became effective on November 8, 78, when UMTRCA was enacted. That section provides that any NRC license issued pu ant to Section 62 (which addresses the licensing of activities regarding source material) or S ion 81 (which addresses the licensing of activities regarding byproduct meerial), which issued or renewed on or after the effective date of Section 83a.,
must include a nditions and erms related to the final disposition of the byproduct material created by the activity at a sites, as well as the sites themselves. The critical factor in determining NRC's juri lon over the byproduct material in question is whether the site at which the processing t k place was licensed by NRC on or after the date Section 83a. became effective, not when th material was generated. There are sites that have prea37811e.(2) byproduct material e., material created by the processing of ore primarily for its source material content a ites not licensed by NRC in 1978 or thereafter). Because these sites were
'not licensed at t time UMTRCA was passed or thereafter, NRC does not have authority over this material.
The fact tha RC lacks such authority does not mean that the FUSRAP material will be allowed to a threat to public health and safety or to the environment. The U.S. Army.
Corps of ngineers (USACE), in its letter dated January 12,1999 (enclosure), has indicated its comm nt to the protection of public health and safety, and the environment. USACE states that it uires that "all waste materials sent off-site for disposal go to facilities with either a f
'or a federal or state perm!t for the proper disposal of these materials," and that off-site ents of FUSRAP waste will be transported in accordance with the Hazardous Materials
, Transportation Act,' 49 U.S.C. 95101 et seq. USACE also complies with applicable NRC and U.S. Environmental Protection Agency manifest requirements.
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s-H. Breard, Jr.
2 I trust that this reply clarifies our position and responds to your concems.
Sincerely, i
Shirley Ann'Ja son
Enclosure:
As stated i
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material created by the processing of ore imarily for its source material content at sites not licensed by the NRC in 1978 or thereafter).
cause these sites were not licensed by NRC at the time UMTRCA was passed or thereafter, C docs not have authority over this material.
Regarding your concern that the consequence of RC's position is that the unregulated pre-197811e.(2) radioactive waste may be disposed o community solid waste landfills, the U.S.
Army Corps of Engineers (USACE) in its letter dated anuary 12,1999 (enclosure), has indicated its commitment to the protection of public he Ith and safety and the environment, stating that it will ensure that only licensed persons recet e FUSRAP materials, and that off-site shipments of FUSRAP waste.will be transported in accord ce with the Hazardous Materials Transportation Act,49 U.S.C. 95101 et seq. USACE also e plies with applicable NRC and U.S. Environmental Protection Agency manifest requirements. Finally, USACE requires that all waste materials sent off-site for disposal must be sent to faciliti with either a license or a Federal or State permit for the proper disposal of these materials.
I trust that this reply clarifies our position and responds to your concerns.
Sincerely, Shirley Ann Jackson
Enclosure:
As stated DISTRIBUTION:
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t sites, as well as the sites themselves. The critical factor in determining NRC's jurisdiction over the byproduct material in question is whether the site at which the processing took place was licensed by NRC on or after the date Section 83a. became effective, not when the material was generated. As such, there are sites that have 11e.(2) byproduct material that were not licensed by NRC at the time UMTRCA was passed. At these sites, NRC does not have the authority to regulate the 11e.(2) byproduct material.
In your letter, you state your concern that the result of NRC's position is that the unregulated pre-197811e.(2) radioactive waste may be disposed of in community solid waste landfills.
Although NRC does not have jurisdiction over pre-197811e.(2) byproduct material, it has been assured by the U.S. Army Corps of Engineers (USACE) that the USACE is committed to the protection of public health and safety and the environment. In its letter dated January 12,1999 (enclosure), USACE states that it will ensure that only licensed persons receive FUSRAP materials, and off-site shipments of FUSRAP waste will be transported in accordance with the Hazardous Materials Transportation Act,49 U.S.C. $5101 et seq. USACE also complies with applicable NRC and U.S. Environmental Protection Agency manifest requirements. Finally, 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.
I trust that this reply clarifies our position and responds to your concems.
Sincerely, Shirley Ann Jackson
Enclosure:
As stated DISTRIBUTION:
G19990132(REF G19990131)
FILE CENTER PUBLIC URB r/f DWM r/f-t/f NMSS Dir.Off. r/f EDO r/f CPoland NMSS r/f PTressler WTravers EMerschoff/RIV SBurns CAbrams RWeller ACNW KCyr MSchwartz WTravers FMiraglia JHolonich SECY CRC 99-0207 DOCUMENT NAME: S:\\DWM\\ URB \\JHL\\ENVIROCA.WPD
- See previous concurrence OFC URLL*
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E-DWM NAME JLusher:bg EKraus STreby KStabh,b JGreeves 3/3h9 DATE 3/30/99 3/31/99 3/
/99 3/
/99 OFC NMSS DEDR EDO OCM NAME CPaperiello FMiraglia WTravers DATE 3/
/99 4/ /99 4/ /99 4/
/99 OFFICIAL RECORD COPY
I C.Judd In your letter, you state your concern that the result of NRC's position is that the unregulated pre-197811e.(2) radioactive waste may be disposed of in community solid waste landfill. In response, it is noted that although NRC does not have jurisdiction over pre-1978 byproduct material, once a generator begins to move such material from its site, the generator must comply with the Department of Transportation's regulations regarding the transport of such material, and the recipient of such material must be authorized to receive it for disposal by the cognizant authority (e.g., NRC-licensed facility or NRC Agreement State-licensed facility).
I trust that this reply clarifies our position and responds to your concerns.
Sincerely, Shirley Ann' Jackson DISTRIBUTION:
G19990132(REF G19990131)
FILE CENTER PUBLIC URB r/f DWM r/f-t/f NMSS Dir.Off. r/f EDO r/f CPoland NMSS r/f PTressler WTravers EMerschoff/RIV SBurns CAbrams RWeller ACNW KCyr MSchwartz CRC 99-0207 WTravers FMiraglia JHolonich DOCUMENT NAME: S:\\DWM\\ URB \\JHL\\ENVIROCA.WPD
- See previous concurrence 3$
OFC URLL*
TECH ED*
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DWM NAME JLusher:bg EKraus STreby KStabtein JGreeves DATE 3/30/99 3/31/99 3/
/99 3/30/99 3/
/99
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,NAME CPaperiello FMiraglia WTravers DATE 3/
/99 4/ /99 4/ /99 4/
/99 OFFICIAL RECORD COPY
3-31-1999 2:09PM FROM FETZER-KRAUS. INC.
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r.s Wh C.Judd In your letter, you state your concem that the result of NRC's poeltion le that the unreguisted pre-197811e.Gt) radioentlwe weste may be esposed of in community solid weste innens. In response, we noted that although@ does not have jurledicuon over pre-1978 byproduct meterial, ones a generator begins to move such meterial from lie site, the generator must comply with the Department of Transportation's regulations regarding the tronoport of such
" the recipient of such material must be authorload to recalve it for disposal by the
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019990132 FILE CENTER PUBLIC
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EDO r/f CPoland NMas rff PTimester WTnrvers EMemchofMW 89ums CAlrame RWeger ACNW KCyr Mschwartz CRC 990207 DOCUMENT NAME: 8:WMURSUHUEENVIROCA.WPD OPC URLL-TECH ED OGC URLL DWM STreby 10Blablem JGreeves MARIE JLuehertie.
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30 FRON:
DUE: 03/R/99 EDO CONTROL: G19990132 i
DOC DTI 01/25/99
]
r'harles A. Judd FINAL REPLY i
Envirocare of Utah, Inc.
TO:
Ceaua. Merrifield FOR SIONATURE OF :
ROUTING:
NRC POLICY ON UNREGULATED 11e(2) MATERIALS Travers Knapp Miraglia Norry Blaha DATE 03/12/99 Burns cyr, otr.
ASSIGNED TO:
CONTACT NN85 Paperiello BPECIAL INSTRUCTIONS OR REMARKS:
Ref. G19990131.
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03/12/99 16:34 W 082 E
l OFFICE OF THE SECRETARY CORRESPONDENCE CONTROL TICKET' FAFER NUMBER:
CRC-99-0207 LOGGING DATE: Mar 10 99 ACTION OFFICE:
EDO AUTHOR:
CHARLES JUDD AFFILIATION:
UTAH ADDRESSEE:
JEFFREY MERRIFIELD, COMMISSIONER, NRC LETTER DATE:
Jan 25 99 FILE CODE:
SUBJECT:
NRC POLICY ON UNREGULATED 11e (2) MATERIALS ACTION:
Signature of Chairman DISTRIBUTION:
CHAIRMAN, COMRS, OGC SPECIAL HANDLING: SECY TO ACK CONSTITUENT:
NOTES:
REP LTR 2/3/99 FM H. BREAD TO COMMISSIONER MERRIFIELD DATE DUE:
Mar 25 99 SIGNATURE:
DATE SIGNED:
APFILIATION:
I EDO --G19990132 L
03/12/99 16:34 NO.082 D04
/
t ENVIROCAREor unn.wc.
l THE SAFE ALTERNATIVE Januaiy 23,1999 CD99 006 7-The Honorable JefRey S Merrifield '
e J.ll naam h 7 Commissioner
.2, Jeu ar/
1 i.as U.S.Nuclur Regulatory Commission
- D-One White FlintNorth 11555 Rockville Pike
_ mr _
Rockville, Maryland 20852-2738
_y
_ wur _
RE: _ NRC policy on unregulated 11e.(2) materials pas:E% w g_
Dear Commissioner Marrifield:
In 1990, the Nuclear Regulatory Commission (NRC), in addressing radiation exposure standards, attempted to institute a new deregulatory policy for radiation levels that were "below regulatory concern"(BRC). The BRC policy intended to established mies and procedu es so that small quantities of very low-level radioactive materials could be exempted from regulatory controls. For its effons, the NRC was treated to a firestorm of protests from the public, Congress, news media, and anti nuclear and environmental activists. The objections to BRC included accusations that the agency was defaulting on its responsibility to public health protection, allowing dangerously radioactive wastes to be disposed ofin community landhils. and trading off human lives for financial interests. So powerful and purposefhl were the protests, the NRC suspended all action on BRC issues.
Recently, in what appears to be an imprudent interpretation of some parts of the Atomic Energy Act (AEA), the Energy Reorganization Act (ERA) and the Uranium Mill Tallings Radiation Control Act (UMTRCA), the NRC is attempting agaln to create a new "below l
regulatory concem" type policy that may be more accurately expressed as "before regulatory control" (DRC). % NRC has indicated that certain radioactive wastes, speci6cally AEA lle.(2) by-product materials produced prior UMTRCA's 1978 statutory authority, are not regulated.
Unlike the original BRC, the new BRC fails to consider established environmental, health REC'D B1f aECf and ufety rules and protective waste management procedurcs. Unlikc the small quantities of very low level radioactive materials addressed in the original BRC, the new BRC affects
'10 iMR 99 AJ 54 huge quantities oflow, medium and highly radioactive wastes. The NRC is again forfeiting its responsibility to public health protection, permitting dangerously radioactive wastes to be disposed ofin community land 611s, offering up environmental degradation for flsealinterests.
4n WESTBROADWA Y * $UlTE 241
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_03/12/99 16:34 NO.082 DOS l
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January 25,1999 The Honorable Jeffrey S. Merrifield Commineinner U.S. Nuclear Regulatory Commission Page 2 The not effect of the new DRC policy is that it donica the prc-1978 lic.(2) radioactive wastes the established regulatory controls and places it within a regulatory framework for which most states are not prepared. Few states have 11s.(2) primacy and the regulations to control these materials; the maiority of the states depend on the NRC to provide I
regulatory control.
The frightening result of the new BRC policy is that it permits these now unregulated pre-1978 Ile.(2) radioactive wastes to be disposed ofin community solid wate landfills.
Most states do not have laws and regulations that specifically prohibit radioactive wastes from public and private solid waste landAlls. Most existing public and private solid waste disposal permits do not have expticit conditions that specifically prohibit acceptance of radioactive waste. Most permitted public and private solid waste disposal facilities do riot have detection equipment to adequately identify radioactive wastes. Consequently, hundreds of millions of tons of pre-1978 l ie.(2) radioactive wastes will be intermingled with other wastes that may be landfilled at private and commercial land disposal sites across the nation.
The clear consequence of the new BRC policy is that it repudiates the environmentally sound site remediation and responsibility intent of UMTRCA and will produce a multiplicity of newly contaminated radioactive sites around the country. The new BRC policy merely moves and multiplios the problematic radioactive sites that UMTRCA's I
creation and passage was designed to limit.
j If other regulatory agencies were to adopt a "before regulatory control" approach, DDT 1
and Chlordane could still be used depending only on when it was produced; Superfund would be an insignificant or even non existent program; medicines, sur8 cal roceduree i
P and vaccines might be available only to those born after each discovery; and, civil rights, 3
~
equal rights and voting rights would be a crazy quilt woi of permissible appilcations l
dependent only on calendar dates.
)
I I
When a daa8*rous radioactive byproduct material was produced is not important to its conscientious regulation. Managing the materials properly and safely are the impoitant issues. Current environmental, health and safety regulatoty schemes are in place because
e&V18#5W 16i34 NO.082 D06
..I ENVIROCARE January 25,1999 The Honorable Jeftey S.Merrifield Commissioner U.S. Nuclear Regulatory Commission Pago 3 byproduct material wastes were mis-managed in the first instance prior to regulatory controls. Mis-management of these same byproduct material wastes, now, in the second instance after regulatory controls and standards are in effect is locomprehenalble.
The need for action is crucial and immediate. The U.S. Army Corps ofEngineers (USACE), based on the NRC BRC policy, has currently requested proposals for the management and disposal of pre-197811c.(2) byproduct wastes for two Formerly Utilized Sites Remedial Action Programs (FUSRAP). USACE specifically identifies the material as un-regulated or pre-1978 lle.(2) byproduct wastes and the proposals submission dates occur within the next week.
I urge you, your fellow Commissioners, and the NRC staff to quickly re visit this policy and, as before with the original controversy, suspend all action on this new BRC policy issue "before regulatory control."
For your information and use, I have enclot,ed a copy of a one page fact sheet and a copy of the Confbronce of Radiation Control Program Directors (CRCPD) Resolution, both of whloh address the new BRC policy. I have also enclosed a couple of relevant pages from the USACE requests forproposals.
l l
1 If you have any questions or ifI can be of assistance, please contact me.
Sincerely, I
k Ah Charles A. Judd i
President-
{
i Attachments cc:
Chairman Jackson Commissioner Dieus Commissioner Diaz Commissioner McGaffigan
03/12/99 16:34 NO.082 DGr7 NRC Should Not Abdicate its Regulatory Responsibility over Nuclear Waste January 1999 Backaround in response to inquiries by the Army Corps ofEngineers, the NRC has recently indicated that it will not assert regulatory authority over certain uranium and thorium processed wastes referred to as "l le.(2) radioactive byproduct material."' In an apparent change ofposition. NRC now contends that it does not havejurisdiction ove' byproduct materist located at sites that were not licensed prior to 1978 when the Uranium Mill Tailing Radiation Control Act (UMTRCA) was enacted. The NRC will continue to regulate this same material ifit was generated after passage of UMTRCA.
NRC should reeulate this radiancdve waste The year in which the byproduct niaterial was created should be irrelevant to its regulation. Radioactive materialis still radioactive and requires safe handling and disposal no matter whether it was created at licensed sites before or after 1978.
The courts have concluded that UMTRCA is latended to close regulatory gaps, not e
create theni. The D.C. Circuit Court of Appeals in 1990 rejected an earlier effort by NRC to abdicate itsjmigliction over byproduct material covered under UMTRCA. In Kerr-McGee v NRC, the fbderal appellant coun concluded that a NRC proposal to treat censin byproduct material ditTerently created a reguistory gap which defeated the whole purpose of UMTRCA (903 F.2d 1. D.C. Cir.1990).
Radiation safosy profeseleasts agree that NRC should czercisc regulatory oversight.
l The Conference of Radiation Control Program Directors (CRCPD) approved on May 20 a resolution that urges the NRC to reconsider its position on its authority over byproduct materials processed before 1978. As noted in the CRCPD resolution, this regulatory issue is especially significant given that the Corps ofEngineers plans to accelerate elesnup ofFUSRAP sites which contain byproduct material processed before 1978.
Ir NRC fais to caercise jurisdiction, radioactive rnaterial could be disposed at
=
standard lasdfills used for solid waste such as ordinary household garbage. These conventional landfills, unlike those licensed by NRC, are not designed or operated to handle the unique characteristics ofradioactive byproduct material. Already a large quantity of this radioactive waste has been shipped from New Jersey to a Idaho landfill for disposal.
The NRC was created to protect public health and safety against the hazards of nuclear technology. including radioactive waste. The asency should not be permitted to simply exempt itself firom regulating a nuclear waste material merely because of the date it was processed.
==
' h J4.mdiomative westes as da6nedin section lle.(2)of the Atomic Energy Act art administered under De so$alled Fonnerly Otniasd Sites Remedial Action Progam (FUSRAF). Congress transferred the FUSRAP program Dom the Department of Energy to the Army Corps of Engmaars in 1997.
03/12/99 16134 NO,082 D08 Confotonoc Gf Radiation Osntrol Program Directors Page 1 of 2 M
Positions &
88 N
L/
y Resolutions g
Conference or Radiation Control Program Directors, Inc.
BOARD POSITION More Poeltlons and Resolutions Relating to: Regulation of 11(e)2 radioactive material, and.the transfer of the Formerly e Emeroenev Utilized Sites Ramadial Action Program nesponse a (FUSRAP) to the U.S. Army Corps of Engineere mnsport
. Environmental e Healino Arts
- NARM WHEREA5: A major focus of the CRCPD is assuring that the public is not unnecesaafily exposed to radiation and all radioacilve
- 8 8110 0 materials (RAM) are adequately controlled; and e Recogndions a Rulemaldna &
WHEREA8: Title I of the Energy and Water Development Su0gestad State Appropriations Aot.1994, Public Law 105 82, transferred the Regulauans FUSRAP program from the US Department of Energy (DOE) to the e Waste USACE:and unnanamant e Workino Groups WHEREA5: Title i of the Ener0y and Water Development Appropriations Act.1996, Public Law 10562, transferred the FU6 RAP program from the US Department of Energy (DOE) to the USACE: and WHEREAS: Price Anderson Act Indemnification of DOE and its contractors was not transferred to the U8 ACE and its FU8 RAP contractors by PL 10562; and WHEREA5: Under the Atomic Energy Act of 1954 the 00E is predominately self regulating in the redtetion stos and the USACE looks this authority; and WHEREAS: To data the Nuclear Re0ulatory Commission (NRC) has not accepted Jurisdiction over the 11(e)2 radioadive byprodud material processed prior to the enactment of the Uranium l
MillTallings Radiation Control Act (UMTRCA), which amended the Atomic Energy Act, and NRC i
has stated that the A0reement States (AS) do not have jurisdiction over pre 197811(e)2 j
byproduct material under the AS Program (but may have such authority under state lew); and j
l WHEREAS. The USACE has stated the Corps Intends to accelerate the FUSRAP cleanup, l
includin011(e)2 byproduct material processed befora UMTRCA became law in 1978; and WMREAS: 11(e)2 byproduct material processed prior to 1978, has been, and is currently being transported to and disposed of at a disposal site in Utah under an NRC 11(e)2 license; and WHEREAS: Under the prowlsions of CERCLA the USACE is not required to have a radioactive maiortals floonse for the 11(e)2 byproduct material on FUSRAP sites on the NPL, but needs one for the maiority of FU8 RAP sites which are not on the NPL:
NOW eE IT RESOLVED: That CRCPD formally convey to the USACE its concem over its lack of a redloactive material (RAM) license to possess and use 11(e)2 byproduct material; and i
BE IT PURTHER RESOLVED: That the CRCPD formetty convey to the NRC a request for the http1/www.crcpd.org/ environmental / environment 19980508.html 1/23/99 i
1
03/12/99 16:34 NO.082 D09 l
,,?-
Conference cfRadiatum Contrcl Program Directors Page 2 of2
~
- NRC to reconsider its position on their lack of jurisdiction over 11(e)2 byproduct material processed before the enactment of UMTRCA in 1978; and 1
BE IT FURTHER RESOLVED: That CRCPD formally convey to 1) the House and Sonste Appropriations Committee, and the;r Subcommittees on a) National Defense Appropriations and b) Enef0y and Water Development,2) IPA House anet Senata National Defense Committees,3) the Senate Energy and Natural Resources Committee,4) and the House Commerce Committee, the above CRCPD concems and request that the regulatory jurisdiction of the USACE's 11(e)2 byproduct meterlat be clairfied to assure that this material be teoulated under a RAM license and appmtplate re0ulations by the NRC or Agreement States.
Approved by the CRCPD Membership May 20,1998 Signed by Jill Upotl, Chairpwoon, CRCPD Hama e Whas's Maw e MarsharaNp e Mandene A Wadahama e-
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http://www cropd.org/ environmental /eavironment,_19980508.litud 1/23/99
tAhV8Wsw 16:34 NO.082 D10
- d RFP 946730-R41662 APPENDIX A SCOPE OF WORK ASIBANDI-DISPOSAL ICF Kaiser Engineers, lac, (ICFKE)is soliciting proposals to accept radiological waste from the Ashland 1 site in Tanawanda, NY. The waste is classified a pre-197811(e)(2).
like byproduct material fbat was deponded at the site in the 1940s as part of the Manhattan Project. The constituents of concern are thorium, uranium, and radium. All radionetive wastes are considered to be low. level wastes. Attached per Exhibit B is the range in pCi/g of the above constituents. The quantity ofsoil to be disposed is currently cathnaamd to be between 100,000 to 150,000 CY. The soil density is approximately 1.1 to l.2 tons':y. Ther may be heavy ractals sa:! low leve's of ct;1r.i: chrmi:ds i. :: :e :r all of the soil excavated for disposal It has been determined that these constituents are act associated with any RCRA listed hazanlous waste A summary of the metal and organic constituents is listed in Exhibit C. Shipment of the soil will be via intennodal container and will commence appmaimately the middle of April 1999. Shipmem is expected to proceed at a fairly level rate of 54 rail cars / day, 5 days per week and continue until all the soil has been transported (weather permitting).
I CN D4mlerc24\\5 COPE of WOE.AsHLAND 1 Di$N $EAV.
03/12/99 16:34 NO.082 D11 i.
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DACW41-99-R-0004 US Army Corpo of Engineers Kansas City District You Manor-We Care l
Radioactive Waste Disposal 1
Multiple Award Contracts for the Kansas City District j
i i
i i
Request for Proposal December 1998
03/12/99 16:34 NO.082 D12 s
DACW4199-R-0004 2.3 VOLUME -The Govemment will determine volume by either Licensed Surveyor, j
Density / Weight, or RatedVolume~of tne container.
{
2.4 DESCRIPTION
OF VOLUNE CALCULATION:
Licensed Surveyor The Govemment will ensure a licensed surveyor is hired e
to measure the insitu volumer of material removed from the generators' site. A i
copy of this survey will be provided to the disposal facility upon request.
f Density The Govemment will determine the average density. Volume will be
=
measured by the eversos height of the material inside the container. The container and material will be weigned. Tne censity equals tne total weignt -
minus the container weight divided by the volume. Frequency of density calculation will be determined by Contracting Officer to ensure representative value.
Rated Volurne To be used with B-25 boxes or omaller containero.
2.5 SCHEDULES The individual schedules are as follows:
Low Activity Radioactive Material (LARM).
Naturally Occurring Radioactive Materials (NORM),
11(e)(2) materials, generated prior to 8 Novembcr 1978 Hazardous Mixed Weste Materials and,
=
RCRA Waste that contains residual radioactivity, which is not NRC regulated.
One contract will be awarded per Contractor. Each contract awarded will contain at losst one, and may contain a' maximum of five, schedule (s) (line items), if more i
than one acceptable offer is received per schedule, the Govemment reserves the right to award that schedule to a maximum of two awardees, et the discretion of the S:ur:a Ss!e:t!on Autheriff.
- 3. SCOPE.
The Contractor shall' provide for the permanent and safe disposal oflow level radioactive and mixed waste contaminated 500 and debris in accordance with all applicable, relevant and appmpriate Federal, State and local regulations.
The source of these materials willinclude a variety of domestic civilian and military sites and facilities. Materials to be disposed of under this contract may include one or more of the following types of radioactive materials:
C2-2
03/12/99 16 34 NO.082 D13
)
i DACW41-99-R 0004 Naturally occurring Radloessve Matadals (NORM) Naturally occuning matarlais, e
not regulated by the Atomic Cnergy Act, who radioactivity has been technologically enhanced usually by mineral extracdon or processing activities. This term is not used to desence the natural radioactivity of rocks and soils or background radiation.
1.ow Activity Radioactive Material (LARM)-Materials with a speclAc activity of less
=
then,30 pCi/c Ra-226 and lens than 150 pC1/g of each other NORM radionuclides.
11(e)(2) Materiale generated prior to November 8,1978 -The tallings or waste
=
produced by the extraction or concentration of uranium or tnorium from any ore processac pnmansy for its source matanal coment. Toi. maiwaiis na muup w regulation under the Atomic Energy Act authority Hazardous Mixed Weste -Includes hazardous waste identified in 40 CFR 261 (F.,
e K. P and U-listings) and/or characteristic waste with residual radioactive material that is NRC regulated.
RCRA Waste that contains residual radioactivity that is not NRC regulated (<30pCl/g
_ RA 226. and <150pCilg or each other NORM radionuclide).
The work to be performed under these contracts shall include receipt and disposal in a j
waste cell for those types of radioactive waste designated above that are received from any site. No transportation services are included in the contract. Payment will be based upon units of cubic yards and the price per cubicyard will include all costs associating with y acceptance and permanent dispossi, itis neferable to And a source that performs all the g g work In house with its own resources.
In the event of non-conforming waste, the disposal facility may, on a limited basis, be
./
x required to bring the waste into conformance. The disposal facility notifies the Contracting Office that non conferming wasta has been delivered..![the Contracfing_ officer determines '
_thw *
- M4 non cnntnrmina they may invoke the Changco Clauce to modify the task order of the disposal contract.
7 The contract to be established will be a Arm-fixed-unit-price based indelnite quantity contract. All contract capacities initi not exceed the S400 million stated above, however, tnere will be no yearly contract limit nor any limit on each task order. Formal source selection procedures will include the evaluation of past performance, technical expertise and price. If a successful Contractor is large business they will be required to meet appropriate small business and small disadvantaged business subcontracting goals. Fiscal Year 1999 floors for subcontracting are: 61.2% tbr Small Business Subcontractors,9.1% for Small Disadvantaged Business Subcontractors and 4.5% for Women Owned Small Business C2 3
~
ACTION EDO Principal Correspondence Control' FROMif
'DUE: 03/23/99 _
EDO CONTROL: G19990132 DOC DT: 01/25/99 FINAL REPLY:
Ch2rles A. Judd-Envirocare of Utah, Inc.
_ TOs Comm. Merrifield FOR SIGNATURE OF :
- -PRI CRC'NO: 99-0207 Chairman DESC3 ROUTING:
NRC POLICY ON UNREGULATED 11e(2) MATERIALS Travers Knapp Miraglia Norry Blaha DATES-03/12/99 Burns Cyr, OGC i
ASSIGNED TO:-
CONTACT:
3 Payeriello SPECIAL. INSTRUCTIONS OR REMARKS:
Rif. G19990131.
l-i.
l.
Y L_
p.n, - -
1 1
"?
OFFICE'OF THE SECRETARY CORRESPONDENCE ~ CONTROL TICKET
. PAPER NUMBER:
. CRC-99-0207-LOGGING DATE: Mar 10 99 iACTION OFFICE:
,. ED -
' AUTHOR:
iCHARLES JUDD iAFFILIATION:
UTAH'
.ADDRESbSE:
- JEFFREY MERRIFIELD,'COMMISSIGNER, NRC LETTER DATE:
Jan 25.99 FILE CODE:
SUBJECT:
- NRC ' POLICY ON UNREGULATED lie.- (2) MATERIALS
~
- ACTION:
Signature of Chairman C' AIRMAN, COMRS, OGC'
~ DISTRIBUTION:
H SPECIALLHANDLING: SECY TO ACK
. CONSTITUENT:
NOTES:
REF LTR:
2/3/99 FM-H. BREAD TO' COMMISSIONER MERRIFIELD tDATE DUE:
Mar 25 99
= SIGNATURE:
DATE SIGNED:
AFFILIATION:
l r
EDO --Gl9990132 r
mL*.
f
)
/
ENVIROCARE or unn.wc.
. THE SAFE ALTERNATIVE l
CD99-006 January 25,1999 l
l
/
The Honorable Jeffrey S. Merrifield '
- .J.Al neot
- L l
Commissioner 2cJeu l 18 M
U.S Nuclear Regulatory Commission One White Flint North l1555 Rockville Pike
~
Rockville, Maryland 20852-2738
__ t.pp -
-- TGF PK2 EN 'e RE:
NRC policy on unregulated Ile.(2) materials
Dear Commissioner Merrifield:
In 1990, the Nuclear Regulatory Commission (NRC), in addressing radiation exposure j
standards, attempted to institute a new deregulatory policy for radiation levels that were "below regulatory concern"(BRC). The BRC policy intended to established rules and procedures so that small quantities of very low-level radioactive materials could be exempted from regulatory controls. For its efforts, the NRC w s treated to a firestorm of protests from the public, Congress, news media, and anti-nuclear and environmental activists. The objections to BRC included accusations that the agency was defaulting on its responsibility to public health protection, allowing dangerously radioactive wastes to be disposed ofin community landfills, and trading off human lives for financial interests. So powerful and purposeful were the protests, the NRC suspended all action on BRC issues.
4 Recently, in what appears to be an imprudent interpretation of some parts of the Atomic Energy Act (AEA), the Energy Reorganization Act (ERA) and the Uranium Mill Tailings Radiation Control Act (UMTRCA), the NRC is attempting again to create a new "below regulatory concern" type policy that may be more accurately expressed as "before regulatory control" (BRC). The NRC has indicated that certain radioactive wastes, i
specifically AEA lle.(2) by-product materials produced prior UMTRCA's 1978 statutory authority, are not regulated.
Unlike the original BRC, the new BRC fails to consider established environmental, health
$Ec'D BY SEcr and safety rules and protective waste management procedures. Unlike the small quantities of very low level radioactive materials addressed in the original BRC, the new BRC affects i
huge quantities oflow, medium and highly radioactive wastes. The NRC is again u
10.Wa 99. 2 I 54 forfeiting its responsibility to public health protection, permitting dangerously radioactive
-. wastes to be disposed ofin community landfills, offering up environmental degradation for fiscalinterests.
j-46 WESTBROADWAY
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ENVIROCARE ^
' January 25,1999 The Honorable Jeffrey S. Merrifield t
Commissioner U.S. Nuclear Regulatory Commission
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I i
The net effect of the new BRC policy is that it denies the pre-19781 le.(2) radioactive wastes the established regulatory controls and places it within a regulatory framework for l
. which most states are not prepared. Few states have lle.(2) primacy and the regulations to control these materials; the majority of the states depend on the NRC to provide regulatory control.
The frightening result of the new BRC policy is that it permits these now unregulated pre-19781le.(2) radioactive wastes to be disposed ofin community solid waste isndfills.
l
- Most states do not have laws and regulations that specifically prohibit radioactive wastes L
from public and private solid waste landfills. Most existing public and private solid waste disposal permits do not have explicit conditions that specifically prohibit acceptance of radioactive waste. Most permitted public and private solid waste disposal facilities do not j
have detection equipment to adequately identify radioactive wastes. Consequently,
_ hundreds of millions of tons of pre-197811e.(2) radioactive wastes will be intermingled l
l-with other wastes that may be landfilled at private and commercialland disposal sites
{
across the nation.
The clear consequence of the new BRC policy is that it repudiates the environmentally sound site remediation and responsibility intent of UMTRCA and will produce a multiplicity of newly contaminated radioactive sites around the country. The new BRC policy merely moves and multiplies the problematic radioactive sites that UMTRCA's
. creation and passage was designed to limit.
If other regulatory agencies were to adopt a "before regulatory control" approach, DDT and Chlordane could still be used depending only on when it was produced; Superfund would be an insignificant or even non-existent program; medicines, surgical procedures and _ vaccines might be available only to those born after each discovery; and, civil rights, equal rights and voting rights would be a crazy quilt work of permissible applications
' dependent only on calendar dates.
When a dangerous radioactive byproduct material was produced is not important to its conscientious regulation. Managing the materials properly and safely are the important issues.' Current environmental, health and safety regulatory schemes are in place because
p.
l*,,-
ENVIROCARE January 25,1999 The Honorable Jeffrey S. Merrifield Commissioner U.S. Nuclear Regulatory Commission Page 3 byproduct material wastes were mis-managed in the first instance prior to regulatory controls. Mis-management of these same byproduct material wastes, now, in the second instance after regulatory controls and standards are in effect is incomprehensible.
The need for action is crucial and immediate. The U.S. Army Corps of Engineers (USACE), based on the NRC BRC policy, has currently requested proposals for the i
management and disposal of pre-19781le.(2) byproduct wastes for two Formerly Utilized Sites Remedial Action Programs (FUSRAP). USACE specifically identifies the material as un-regulated or pre-19781le.(2) byproduct wastes and the proposals submission dates occur within the next week.
I urge you, your fellow Commissioners, and the NRC stafTto quickly re-visit this policy and, as before with the original controversy, suspend all action on this new BRC policy issue "before regulatory control."
For your information and use, I have enclosed a copy of a one page fact sheet and a copy of the Conference of Radiation Control Program Directors (CRCPD) Resolution, both of which address the new BRC policy. I have also enclosed a couple of relevant pages from the USACE requests for proposals.
If you have any questions or ifI can be of assistance, please contact me.
Sincerely, b
Charles A. Judd President Attachments cc:
Chairman Jackson Commissioner Dieus Commissioner Diaz Commissioner McGafligan
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' NRC Should Not Abdicate its Regulatory Responsibility over Nuclear Waste January 1999
Background
In response to inquiries by the Army Corps of Engineers, the NRC has recently indicated that it will not assert regulatory authority over certain uranium and thorium processed wastes referred to as "11e.(2) radioactive byproduct material." In an apparent change of position, NRC now contends that it does not have jurisdiction over byproduct material located at sites that were not licensed prior to 1978 when the Uranium Mill Tailing Radiation Control Act (UMTRCA) was enacted. The NRC will continue to regulate this same material ifit was generated after passage of UMTRCA.
i NRC should regulate this radioactive waste The year in which the byproduct material was created should be irrelevant to its e
regulation. Radioactive materialis still radioactive and requires safe handling and disposal no matter whether it was created at licensed sites before or after 1978.
The courts have concluded that UMTRCA is intended to close regulatory gaps, not create them. The D.C. Circuit Court of Appeals in 1990 rejected an earlier efTort by NRC to abdicate its jurisdiction over byproduct material covered under UMTRCA. In Kerr-McGee v NRC, the federal appellant court concluded that a NRC proposal to treat certain byproduct matetial differently created a regulatory gap which defeated the whole purpose of UMTRCA (903 F.2d I, D.C. Cir,1990).
Radiation safety professionals agree that NRC should exercise regulatory oversight.
e The Conference of Radiation Control Program Directors (CRCPD) approved on May 2.0 a resolution that urges the NRC to reconsider its position on its authority over byproduct materials processed before 1978. As noted in the CRCPD resolution, this regulatory issue is especially significant given that the Corps of Engineers plans to accelerate cleanup of FUSRAP sites which contain byproduct material processed before 1978.
If NRC fails to exercise jurisdiction, radioactive material could be disposed at standard landfills used for solid waste such as ordinary household garbage. These
{
conventional landfills, unlike those licensed by NRC, are not designed or operated to handle the unique characteristics of radioactive byproduct material. Already a large quantity of this radioactive waste has been shipped from New Jersey to a Idaho landfill for disposal.
l l
The NRC was created to protect public health and safety against the hazards of j
e nuclear technology, including radioactive waste. The agency should not be permitted to i
simply exempt itself from regulating a nuclear waste material merely because of the date it was processed.
K is+empriens
' Byproduct radioactive wastes as defined in section lle.(2) of the Atomic Energy Act are administered under the so<.alled Formerly Utilized Sites Remedial Action Program (FUSRAP). Congress transferred the FUSRAP program from the Department of Energy to the Army Corps of Engineers in 1997.
)
i
Conference of Radiation Control Program Directors Page1of2
{
Positions &
kk pg Resolutions g
Conference of Radiation Contyol Program Directors,Inc.
BOARD POSITION More Positions and Resolutions Relating to: Regulation of 11(e)2 radioactive
. Administrative l
material, and.the transfer of the Formerly l
Emeroency Utilized Sites Remedial Action Program gesp_onse_&
(FUSRAP) to the U.S. Army Corps of Engineers Transp.on EnWonmenta!
(USACE)
. Healina Arts e NARM WHEREAS: A major focus of the CRCPD is assuring that the public e Radon is not unnecessarily exposed to radiation and all radioactive materials (RAM) are adequately controlled; and e Recoanitions e Rulemakina &
WHEREAS: Title I of the Energy and Water Development SugggstgGt. ale Appropriations Act,1998, Public Law 105-62, transferred the Regulatioris FUSRAP program from the US Department of Energy (DOE) to the
. Waste USACE; and Manaaement
. Workina Groups WHEREAS: Title I of the Energy and Water Development Appropriations Act,1998, Public Law 105-62, transferred the FUSRAP program from the US Department of Energy (DOE) to the USACE; and WHEREAS: Price-Anderson Act indemnification of DOE and its contractors was not transferred to the USACE and its FUSRAP contractors by PL 105-62; and WHEREAS: Under the Atomic Energy Act of 1954 the DOE is predominately self regulating in the radiation area and the USACE lacks this authority; and WHEREAS: To date the Nuclear Regulatory Commission (NRC) has not accepted jurisdiction over the 11(e)2 radioactive byproduct material processed prior to the enactment of the Uranium Mill Tailings Radiation Control Act (UMTRCA), which amended the Atomic Energy Act, and NRC has stated that the Agreement States (AS) do not have jurisdiction over pre 197811(e)2 byproduct material under the AS Program (but may have such authority under state law); and WHEREAS: The USACE has stated the Corps intends to accelerate the FUSRAP cleanup, including 11(e)2 byproduct material processed before UMTRCA became law in 1978; and WHEREAS: 11(e)2 byproduct material processed prior to 1978, has been, and is currently being transported to and disposed of at a disposal site in Utah under an NRC 11(e)2 license; and WHEREAS: Under the provisions of CERCLA the USACE is not required to have a radioactive materials license for the 11(e)2 byproduct material on FUSRAP sites on the NPL, but needs one for the majority of FUSRAP sites which are not on the NPL; NOW BE IT RESOLVED: That CRCPD formally convey to the USACE its concem over its lack of a radioactive material (RAM) license to possess and use 11(e)2 byproduct material; and BE IT FURTHER RESOLVED: That the CRCPD formeriy convey to the NRC a request for the http://www.crepd.org/ environmental / environment _19980508.html 1/23/99
T e.
Conference of Radiation Control Program Directors Page 2 of 2 NRC to reconsider its position on their lack of jurisdiction over 11(e)2 byproduct material processed before the enactment of UMTRCA in 1978; and l
BE IT FURTHER RESOLVED: That CRCPD formally convey to 1) the House and Senate l
Appropriations Committee, and their Subcommittees on a) National Defense Appropriations and l
b) Energy and Water Development,2) the House and Senate National Defense Committees,3) the Senate Energy and Natural Resources Committee,4) and the House Commerce Comrnittee, the above CRCPD concerns and request that the regulatory jurisdiction of the USACE's 11(e)2 byproduct material be clairfied to assure that this material be regulated under a RAM license and approrpiate regulations by the NRC or Agreement States.
Approved by the CRCPD Membership May 20,1998 Signed by Jill Lipoti, Chairperson, CRCPD I
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http://www.crcpd.org/ environmental / environment _19980508.html 1/23/99
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RFP 9-66730-R-61662 APPENDIX A SCOPE OF WORK ASHLAND I-DISPOSAL ICF Kaiser Engineers, Inc. (ICFKE) is soliciting proposals to accept radiological waste from the Ashland I site in Tonawanda, NY. The waste is classified a pre-197811(c)(2)-
like byproduct material that was deposited at the site in the 1940s as part of the Manhattan Project. The constituents of concern are thorimn, uranium, and radium. All radioactive wastes are considered to be low-level wastes. Attached per Exhibit B is the i
range in pCi/g of the above constituents. The quantity of soil to be disposed is currently estimated to be between 100,000 to 150,000 CY. The soil density is approximately 1.1 to 1.2 tons':y. There m y be he:vy metals 2n:!lowleveir of c ;r.ic chemi:6 in ::me :-
all of the soil excavated for disposal. It has been determined that these constituents are not associated with any RCRA listed hazardous waste. A summary of the metal and organic constituents is listed in Exhibit C. Shipment of the soil will be via intermodal container and will commence approximately the middle of April 1999. Shipment is expected to proceed at a fairly level rate of 5-6 rail cars / day,5 days per week and continue until all the soil has been transported (weather permitting).
C:\\ll540\\Terc24\\ SCOPE oF WORK AsHLAND I D!sPosAL SERV.
m
I DACW41-99-R-0004 US Army Corps of Engineers Kansas City District You Matter-We Care Radioactive Waste Disposa!
Multiple Award Contracts for the Kansas City District Request for Proposal December 1998
1 4
DACW41-99-R-0004 2.3 VOLUME -The Government will determine volume by either Licensed Surveyor, Density / Weight, or Rated Volume of the container.
2.4 DESCRIPTION
OF VOLUME CALCULATION:
. Licensed Surveyor - The Govemment will ensure a licensed surveyor is hired to measure the insitu volume of material removed from the generators' site. A copy of this survey will be provided to the disposal facility upon request.
Density - The Govemment will determine the average density. Volume will be measured by the everace heicht of the materialinside the container. The container and matenal will be weighed. The density equals the total weight minus the container weight divided by the volume. Frequency of density calculation will be determined by Contracting Officer to ensure representative value.
Rated Volume - To be used with B-25 boxes or smaller containers.
2.5 SCHECULES j
The individual schedules are as follows:
Low Activity Radioactive Material (LARM),
Naturally Occurring Radioactive Materials (NORM),
11(e)(2) materials, generated prior to 8 November 1978 Hazardous Mixed Waste Materials and, RCRA Waste that contains residual radioactivity, which is not NRC regulated.
a One contract will be awarded per Contractor. Each contract awarded will contain at least one, and may contain a' maximum of five, schedule (s) (line items), if more than one acceptable offer is received per schedule, the Govemment reserves the right to award that schedule to a maximum of two awardees, at the discretion of the S:urca Ss!e: tion Authcriti
- 3. SCOPE.
The Contractor shall provide for the permanent and safe disposal of low-level radioactive and mixed waste contaminated soil and debris in accordance with all applicable, relevant and appropriate Federal, State and local regulations.
The source of these materials willinclude a variety of domestic civilian and military sites and facilities. Materials to be disposed of under this contract may include one or more of the following types of radioactive materials:
C2-2
4 r
DACW41-99-R-0004 Naturally Occurring Radioactive Materials (NORM) Naturally occurring materials, not regulated by the Atomic Energy Act, who radioactivity has been technologically enhanced usually by mineral extraction or processing activities. This term is not used to describe the natural radioactivity of rocks and soils or background radiation.
Low-Activity Radioactive Material (LARM)-Materials with a specific activity of less than,30 pCi/g Ra-226 and less than 150 pCl/g of each other NORM radionuclides.
11(e)(2) Materials generated prior to November 8,1978 -The tailings or waste
=
produced by the extraction or concentration of uranium or thorium from any ore processeo pnmarily for its source matenal content. Tnis matsnaiis n::,t suae:; to regulation under the Atomic Energy Act authority Hazardous Mixed Waste -Includes hazardous waste identified in 40 CFR 261 (F,
K, P-and U-listings) and/or characteristic waste with residual radioactive material that is NRC regulated.
RCRA Waste that contains residual radioactivity that is not NRC regulated (<30pCi/g RA-226. and <150pCl/g or each other NORM radionuclide).
The work to be performed under these contracts shall include receipt and disposalin a waste cell for those types of radioactive waste designated above that are received from any site. No transportation services are included in the contract. Payment will be based upon units of cubic yards and the price per cubic yard willinclude all costs associating with y acceptance and permanent disposal, it is preferable to find a source that performs all thg
~
- Q work in-house with its own resources.
In the event of non-conforming waste, the disposal facility may, on a limited basis, be i
required to bring the waste into conformance. The disposal facility notifies the Contracting ~
/
Officer that non-conferming waste has been delivered. If the Contracting Off.icg_@termines
,_that *e " fee le non-conformina they may invoke the Gnanges Clause to modify tne task s
order of the disposal contract.
The contract to be established will be a firm-fixed-unit-price based indefinite quantity J
contract. All contract capacities will not exceed the $400 million stated above, however, there will be no yearly contract limit nor any limit on each task order Formal source selection procedures will include the evaluation of past performance, technical expertise and j
price. If a successful Contractoris large business they will be required to meet appropriate small business and small disadvantaged business subcontracting goals. Fiscal Year 1999 floors for subcontracting are: 61.2% for Small Business Subcontractors,9.1% for Small Disadvantaged Business Subcontractors and 4.5% for Women Owned Small Business C2-3
03/12/99 16:34 No.082 D14 l
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() GG -)c,&,J EDO Principal torrespondence Control l
30 FRW:
DUE: 03/M99--
EDO CONTROL: G19990131 Doc DTs 02/03/99 FINAL REPLY:
M. Anthony areerd, Jr.
Elvirocare of Utah, Inc.
TO:
Comm. Norrifield FOR SIGNATURE OF :
ROUTING:
NRC POLICY ON UNREGULATED 11e(2) MATERIALS Travers Knapp Miraglia i
Norry Blaha Burns DATE: 03/12/99 cyr, OGC ABBIGNED TO:
CONTACT:
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NN88 Paperiello EPECIAL INSTRUCTIONS OR REMARKS:
Ref. G19990132.
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CORRESFONDENCE CONTROL TICKET
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PAPER NUMBERS CRC-99-0206 LOGGING DATE: Mar 10 99
' l ACTION OFFICE:
EDO i
AUTHOR:
. ANTHONY BREARD AFFILIATION:
UTAH ADDRESSEE:
JEFFREY MERRIFIELD, COMMISSIONER, NRC LETTER DATE:
Feb 3~99 FILE CODE:
SUBJECT:
JANUARY 27, 1999, MEETING, NRC POLICY ON UNREGULATED 11e (2) MATERIALS ACTION:
Signature of Chairman DISTRIBUTION:
CHAIRMAN, COMRS, OGC SPECIAL HANDLING: SECY TO ACK CONSTITUENT:
NOTES:
REF LTR: 1/25/99 FM CHARLES JUDD TO COMMISSIONER s
MERRIFIELD DATE DUE:
Mar 99 SIGNATURE:
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g5 w THESAFEALTERNATIVE J-. tDe -__ uh nee aces February 3,1999
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The Honorable Jeffrey S. Merrifield Commissioner U.S. Nuclear Regulatory Commission
]
One Whitr.!O North 11555 Ro.*
.c Pike Rockville, Maryland 20852 2738 RE:
January 27,1999, meeting; NRC policy on unregulated 11e.(2) materials Deus Commissioner Merrifteld; Thank you for taking the time from your busy schedule to meet with me and Scott Slesinger on the referenced issue. It was obvious, too, that you had taken additional time to better acquaint yourself with the particulars of the situation. I very much appreciate your attention and consideration-l I remain concerned that the NRC is establishing am imprudent precedent in its finding that certain dangemus radioactive materials, specifically Atomic Energy Act 11e.(2) byproduct wastes, need not be carefully regulated because these dangerous radioactive materials were generated "before regulatory control" was established.
It truly appears that the NRC is embarking on a campaign of"see no evil, hear no evil, speak nn evil"if the evil occurred before 1978. The situation, too,is strikingly evocative of scenes in the story about "The Emperor's New Clothes."
When a hazardous substance becomes hazardous is not important to its carefbt, conscientious management. Regulating the substance properly and prudently are the important issues. Current environmental, health and safety laws and regulations have baen I
enacted and implemented because these lle.(2) byproduct material wastes were mis-managed in the rust instance. Mis management of these same byproduct material wastes i
now, in the second instance, only because they were generated "before regulatory n IT 66 wm ot !
control,"isincomprehensible.
Is it possible that some stewards of the public trust have decided that the best and smartesess Ja mosu way to rostorc environmental quality is by blindly disregasding enlating degiadation? Is it conceivable that that which is not known. or is not recognized as a concem, can not be harmful? Is a cancer not a cancer ifit is ignored?
46 WESTB}t0ADWAY
- Su(TE 240
- SALT LAKE CITY, UTAH 84101
- TELEPHONE (Mot) 5.ti.IJ30 f ^ $ !! W A / f*
03/12/99 16:34 NO.082 D17 4.'
.e I
ENYlROCARE February 3,1999 l
The Honorable Jeffrey S. Merrifield Commissioner U.S. Nuclear Regulatory Commission Page 2 Again, I urge you, your fellow Commissioners, and the NRC statt to quickly re-visit this regulatory interpretation and to do the right thing - properly regulate 11e.(2) byproduct waste, regardless of the date it became dangerous.
Thank you again for your time, courtesies, and considerations. I look forward to working with you in the future.
Ifyou have any questions or ifI can be of assistance, please contact me.
Sincerelp!', '
(f ig,6{ t Q!.
s W. Anthony Brekfd, Jr.
Manager, Government &
Industry Affairs l
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FROM
'DUE: 03/23/99 EDO CONTROL: G19990131 DOC DT: 02/03/99-FINAL REPLY:
H. Anthony Breard):Jr.
Envirocare of: Utah, Inc.
TOs
-Comm LMerrifield
- FOR SIGNATURE'OF :
ROUTING:
NRC POLICY ON UNREGULATED 11e(2) MATERIALS Travers.
Knapp Miraglia Norry J
Blaha
. D A T E t' 0 3 / 1 2 / 9 9 --
Burns Cyr, OGC
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. CONTACT:
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ACTION OFFICE:
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" AUTHOR:
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- AFFILIATION
. UTAH.
ADDRESSEE:
JEFFREY MERRIFIELD,: COMMISSIONER, NRC
. LETTER DATE:
- FebL 3L99 FILE CODE:
u.
SUBJECT:
. JANUARY' 27, 1999', MEETINGi-NRC POLICY.ON
' UNREGULATED lie (2) MATERIALS 1 ACTION:
Signature of: Chairman
-DISTRIBUTION:
CHAIRMAN, COMRS,'OGC SPECIAL HANDLING:'SECY TO ACK' i
, CONSTITUENT:
NOTES:
REF LTR: 1/25/99 FM CHARLES JUDD TO COMMISSIONER MERRIFIELD Mar )($ -
99
)
DATE DUE:
l
-SIGNATURE:
DATE SIGNED:
' AFFILIATION:
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February 3,1999
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NLE:5 woc d The Honorable Jeffrey S. Merrifield Commissioner U.S. Nuclear Regulatory Commission One White Flint North j
11555 Rockville Pike Rockville, Maryland 20852-2738 RE:
January 27,1999, meeting; NRC policy on unregulated 11e.(2) materials
Dear Commissioner Merrifield:
Thank you for taking the time from your busy schedule to meet with me and Scott Slesinger on the referenced issue. It was obvious, too, that you had taken additional time to better acquaint yourself with the paniculars of the situation. I very much appreciate your attention and consideration.
I remain concerned that the NRC is establishing am imprudent precedent in its finding that certain dangerous radioactive materials, specifically Atomic Energy Act Ile.(2) byproduct wastes, need not be carefully regulated because these dangerous radioactive materials were generated "before regulatory control" was established.
It truly appears that the NRC is embarking on a campaign of"see no evil, hear no evil, speak no evil," if the evil occurred before 1978. The situation, too, is strikingly evocative of scenes in the story about "The Emperor's New Clothes."
When a hazardous substance becomes hazardous is not important to its careful, conscientious management. Regulating the substance properly and prudently are the important issues. Current environmental, health and safety laws and regulations have been l
enacted and implemented because these 1le.(2) byproduct material wastes were mis-i managed in the first instance. Mis management of these same byproduct material wastes l
now, in the second instance, only because they were generated "before regulatory g !T % m 01 l
control," is incomprehensible.
l
\\
Is it possible that some stewards of the public trust have decided that the best and smartscas M c.osu l way to restore environmental quality is by blindly disregarding existing degradation? Is it conceivable that that which is not known, or is not recognized as a concern, can not be harmful? Is a cancer not a cancer ifit is ignored?
l l
46 WESTBROADWAY
- SUITE 240
- SAllhtKE CITY, UTAll84101
- TELEPHONE (801) 532-1330
[
$ u[/ /vu M A
j
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ENVIROCARE i
February 3,1999 The Honorable Jeffrey S. Merrifield.
Commissioner U.S. Nuclear Regulatory Commission Page 2 i
Again, I urge you, your fellow Commissioners, and the NRC staff to quickly re-visit this regulatory interpretation and to do the right thing - properly regulate 11e.(2) byproduct waste, regardless of the date it became dangerous.
Thank you again for your time, courtesies, and considerations. I look forward to working with you in the future.
If you have any questions or ifI can be of assistance, please contact me.
Sincerel [ T n
j
. Anthony Breff Manager, Government &
J Indu3try Affairs i-L l
.