ML20207D524
| ML20207D524 | |
| Person / Time | |
|---|---|
| Issue date: | 02/23/1999 |
| From: | Cyr K, Travers W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO), NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| REF-PROJ-M-32 SECY-99-057, SECY-99-057-01, SECY-99-057-R, SECY-99-57, SECY-99-57-1, SECY-99-57-R, NUDOCS 9903090383 | |
| Download: ML20207D524 (33) | |
Text
RELEASED TO THE PDR r
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3 POLICY ISSUE (Notation Vote)
,.rebruary 23, 1999 SECY-99-057 h
FOR:
The Commissioners j
FROM.
Karen D. Cyr
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General Counsel j
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William D. Travers 2
Executive Director for Operations
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SUBJECT:
SUPPLEMENT TO SECY-98-251,
- DECOMMISSIONING CRITERIA FOR 3
WEST VALLEY" A
PURPOSE:
To provide supplemental information on the decommissioning criteria for the West Valley site.
SUMMARY
This paper provides additional information and recommendations on West Valley decommissioning criteria, as requested in the Staff Requirements Memorandum dated 4
January 26,1999. The staff now recommends the following with respect te West Valley:
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- 1. Approve e:ther of the following options:
3,
'E a)
Prescription of the License Termination Rule (LTR) now as the final
-Q decommissioning criteria applicable to the Department of Ene
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Valley Demonstrp+ ion Project (WVDP); or 3a b)
Issuance of the criteria in SECY-98-251, a, proposed criteria, with the final hsj
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criteria to be prescribed after issuance of the final Environmental Impact j
Statement (EIS), but before the record of decision.
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CONTACT:
J. D. Parrott, NMSS/DWM f
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4 The Commissioners 2.
Approve transmittal of the Commission decision to DOE hy public letter.
- 3.
Approve the staff's plan to enter into a cooperative agreement with the New York State Department of Environmental Conservation (NYSDEC) regarding the West Valley site.
BACKGROUND:
In the public Commission briefing on January 12,1999, the Commission was briefed by the staff on SECY-98-251, "Decommissiening Criteria for West Vai!sy," dated October 30,1998, and also heard comments on SECY-98-251 from DOE; New York State Energy Research and Development Authority (NYSERDA); NYSDEC; and the West Valley Citizen Task Force.
i in the Staff Requirements Memorandum dated Janurty 26,1999 (Attachment 1, WITS
- 199800178), the Commission requested that the staff: (1) review the Nuclear Regulatory Commission's (NRC's) authority, obligations, and limitations under the West Valley Demonstration Project (WVDP) Act and inform the Commission of the results; (2) inform the Commission of the scope of NRC's licensing of the site, before the license was picced in abeyance, including the size of the area and range of activities under the license; (3) supplement SECY-98-251 with a more expansive discussion of the options for the manner and timing of how NRC might prescribe the final decommissioning criteria-and discuss the pros and cons of each option, their resource implications, how they relate to the Environmental Impact Statement (EIS) process, and the possible need for a separate NRC EIS; (4) distinguish between waste disposal and decommissioning criter:a; (5) inform the Commission of the regulatory options available (e.g., by policy statement or rule) for finalizing the decommissioning criteria, and how that process relates to the timing fcr finalizing the criteria; (6) inform the Commission about the implications of the decommissioning criteria options for the NYSERDA post-WVDP revival of the NRC license, if any; and, (7) essess whether a cooperative agreement with NYSDEC is necessary and appropriate in light of potentially shared regulatory responsibilities over areas of radioactive contamination at West Valley affected by both NRC-j and NYSERDA-regulated activities.
DISCUSSION:
1.
Review of NRC's Authority. Obliaations. and Limitations Under the WVDP Act An analysis of the authority, obligations, and limitations of the NRC under the WVDP Act is provided in Attachment 2. From that analysis, we concluoe that the NRC has only limited authority and responsibility under the VNDP Act. Pursuant to that Act, the NRC: (1)is required to enter into a memorandum of understanding with DOE to coordinate informal consultation on the safety of DOE's activities under the VNDP Act; (2) may informally review and comment on DOE's activities under the project and request information and analyses from DOE; (3) may i
seek access to the site and monitor project activities; (4) may prescribe decontamination and decommissioning criteria that DOE is to meet; (5) may designato materials, other than those defined in the statute, as high-level waste (HLW); and (6) may prescribe concentrations of transuranic elements as contaminants in materials to be treated as transuranic waste, NRC is not authorized to: (1) regulate DOE activities at the project site; (2) enforce DOE's compliance t
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The Commissioners with the decontamination and denmmissioning criteria that NRC may prescribe; or (3) determine whether or when DOE has completed decontamination and decommissioning for the WVDP.' The actions for the NRC, described in the Memorandum of Understanding with DOE to I
implement the VNDP Act, executed in September 1981 and in effect today, are consistent with these authorities and responsibilities.
- 2.
Scone of NRC's License Before it Was Placed in Abevance l
j' The original license (CSF-1, dated April 19,1968) states that the license applies to "the irradiated nuclear fuel processing plant (the ' facility') located at the Westem New York Nuclear Service Center, Cattaragus and Erie Counties, New York, and described in Part B of the revised L
license application, as amended, filed by Nuclear Fuel Services, Inc...." The description in Part B of the revised license application (now the Final Safety Analysis Report) describes the 77-hectare (190-acre) plant site as being located in the conter of a 1335-hectare (3300-acre) exclusion area. The exclusion area corresponds to the area of the Westem New York Nuclear Service Center. The staff believes that the license principally covers the smaller 77-hectare (190-acre) area around the facility and to a more limited degree, the exclusion area. Although the license is suspended, the staff expects NYSERDA to coordinate with DOE; maintain and control the exclusion area; and address any radioactive contamination in the exclusion area which may have resulted from licensed activities, as necessary, to protect public health and safety.
The license authorized Nuclear Fuel Services, Inc., as the operator of the faci 4ty, and NYSERDA's predecessor agency, as the owner of the facility, to: (a) store irradiated fuel elements and radioactive waste (including liquid HLW); (b) reprocess spent nuclear fuel; and (c) dispose of solid radioactive waste generated at the facility by burial in soil. After the passage of the WVDP Act, the license was amended twice. The first amer dment (number 31, dated September 30,1981) permitted the licensees to transfer the facility to DOE and put the technical i
specifications of the license into abeyance as of the date of the transfer. The second amendment (number 32, dated February 11,1982) terminated the responsibility and authority of Nuclear Fuel Services, Inc., as the operational licensee of the facility, leaving NYSERDA as sole l
licensee.
i 3.
Options for the Timina of Prescribina the Final Decommissionio Criteria
)
l in developing the decommissioning criteria recommended in SECY-98-251, the staff took a broad view by proposing criteria that would be applicable to both DOE (for the WVDP) and NYSERDA (for the site after reinstatement of the license). This broad approach is consistent with the DOE /NYSERDA joint EIS which considers both the completion of the WVDP by DOE and the closure or long-term care of the remaining NYSERDA portion of the site licet, sed by
. NRC. ' Under the staffs broad approach, DOE's decommissioning of WVDP facilities would need to be in accordance with the decommissioning criteria that would also be applicable to NYSERDA after reactivation of the license. The proposed criteria would also be applicable to any remaining areas of the site not decommissioned by DOE under the WVDP. Therefore, using the staffs broad approach, the decommissioning criteria, as proposed in SECY-98-251, could be used in the site-wide joint EIS.
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' The Commissioners 1 The staff notes the Commission could follow a narrow approach, more limited than the i
recommendations in SECY-98-251 As noted above, NRC's authority to prescribe decommissioning criteria under the WVDP Act is focused on prescribing such criteria for DOE.
i Therefore, under a narrow approach, the Commission could prescribe criteria at this time only for DOE under the WVDP Act and could limit the criteria just to decommissioning (i.e., not l
' address requirements for potential onsite waste disposals).2 However, the narrow approach
.would not address clean-up for the entire site and would not cover NYSERDA's responsibilities.
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in the briefing, the staff presented three options for timing of the Commission decision relative to
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the preparation of an EIS. These were described as a)
Make the Commission decision and prescribe tie criteria before the final EIS and record of decision are issued by DOE /NYSERDA; b):
Make the Commission decision and prescribe the criteria after the final EIS but beiure the record of decision is issued by DOE /NYSERDA; and I
c)
Make tne Commission decision and prescribe the criteria after the final EIS and Record of Decision are issued by DOE /NYSERDA.
Each of these options has pros and cons regarding policy and timeframe implications. The three procedural options for the timing of the Commission decision for prescribing the decommissioning criteria and their pros and cons are provided in Attachment 3.
4.
Decommissionina Criteria vs. Waste Disposal Criteria The WVDP Act contains separate paragraphs describing the disposal of low-level radioactive waste and decommissioning criteria [Sec. 2(a)(4) specifies that waste should be disposed of in accordance with applicable licensing requirements, and Sec. 2(a)(5) states that DOE should follow decommissioning criteria that NRC may prescribe). SECY-98-251 used the term
" decommissioning criteria" broadly to include criteria for both decommissioning and potential waste disposal at the West Valley site. This was done because disposal of WVDP or West l
Valley site waste (if onsite) would be part of decommissioning similar to the onsite disposal of radioactive waste (under 10 CFR 20.2002) that has been undertaken at other NRC-licensed sites as a part of decommissioning. Although SECY-98-251 defined the term " decommissioning criteria" broadly, it proposed different criteria for each of several activities: the closure of areas L
of residual contamination and existing waste disposal (LTR); material remaining in the HLW tanks after closure and any future onsite disposal of solidified liquid supemate waste from the j
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' NRC's authority to prescribe criteria for NRC's licensee, NYSERDA, comes from the Atomic Energy Act,' not from WVDPA.
8Because the WVDP Act directs DOE to decommission project facil, ties in accordance with such requirements as NRC may prescribe, the scope of the proposed decommissioning i
criteria could be limited to just the LTR. Onsite waste disposal requirements, if needed, could be requested separately by DO3 and NYSERDA through the process described in 10 CFR 20.2002,
- Methodology for Obtaining Approval of Proposed Disposal Procedures."
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l The' Commissioners HLW tanks (incidental waste criteria); and other stored project wastes (performance objectives of 10 CFR Part 61). The Commission has the option to omit waste disposal criteria, but that will leave open the question of what " licensing requirements
- apply to any DOE waste disposal
-. proposals at the site. Because the waste disposal criteria proposed in SECY-98-251 are compatible with the proposed decommissioning criteria, the staff believes that it is feasible to cover both in a comprehensive manner.
l 5.
RaaulMary Ootions for Finalizina the Decommissionino Criteria and How the Ootions Relate to Timina l
l The decommissioning criteria could be finalized (prescribed) by: (a) rulemaking; (b) adjudication (i.e., order); (c) policy statement; or (d) letter to DOE. The estimated timeframe for each of -
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. these regulatory options is presented in Attachment 4. As a general matter, rulemaking or l
adjudication would be appropriate to prescribe criteria if the Commission determines that site-specific criteria other than already-established standards are needed for both DOE and NYSERDA for the West Valley site. If the Commission is applying its pre-existing, generally 8
applicable criteria (i.e., the LTR,10 CFR Part 20, the disposal criteria in Part 61, the incidental waste criteria) at West Valley, then any of the options may be used.' These options are described below.
- a. Rulemakina Under this option, the Commission would conduct a notice-and-comment rulemaking to prescribe the criteria. The criteria would be finalized when the final rule becomes effective.
Normally, a rulemaking takes 1-2 years and 3 full-time equivalents (FTE) or more to complete.
The advantage of this method is that it would make any new criteria that are different from existing regulations legally binding on the West Valley licensee (NYSERDA)5. Another i-8 If the Commission opts for applying existing criteria (e.g., LTR, incidental waste criteria, Part 61 performance standards) at. West Valley in general (i.e., to DOE and the West Valley j
licensee, NYSERDA), then additional NRC rulemaking or adjudication is not necessary. In addition, since DOE is not a person subject to Commission jurisdiction and regulation, with regard to the WVDP, NRC could prescribe any new decommissioning criteria, for DOE alone, by an inforrr.al means such as a policy statement or letter to DOE.
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'Normally, NRC imposes new, legally binding requirements by rule, order, or license condition. Since DOE is generally not subject to NRC regulation and licensing requirements, (with certain exceptions not perdnent here) but is subject to decommissioning criteria that NRC may prescribe by operation of Section 2(a)(5)(C) of the WVDP Act itself, a rule, order, or license condition is not necessary to impose legally binding decommissioning criteria for DOE's WVDP cleanup.. A rule, order, or license condition would be needed to impose new legally binding oecommissioning criteria on NYSERDA.
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j 50f course, if the rule would impose new criteria different from existing regulations and not covered by prior environmental reviews, an environmental analysis would be needed, although such analysis presumably could rely on the environmental analysis being prepared by DOE and NYSERDA for the WVDP.
i The Commissioners. advantage is that this option would involve a well-defined process for obtaining public input. The disadvantage is that this would be a time-consuming and resource-intensive method for setting the criteria. In general, NRC does not have~ authority to enforce its rules against DOE.
- However, it does have authority to promulgate a rule for the West Valley site that is binding on NYSERDA. At the time of promulgation, the Commission could indicate that the site-specific criteria in the rule are the criteria that NRC is " prescribing" for DOE's use under the WVDP Act.
' b. Adpudication 1
NRC also does not have the authority to issue an order to DOE to decontaminate the site according to prescribed criteria. However, it does have authority to issue such an order to NYSERDA, which retains its license (albeit in abeyance) for the facility. The order could include criteria for the West Valley site and a statement indicating that the site-specific criteria in the order are the criteria that NRC is " prescribing" for DOE's use under the WVDP Act. The adjudicatory process would involve an opportunity for a hearing by a person whose interest i
might be affected by the' order. The resource implications of this option and the time it would take to complete would depend upon whether a hearing were held, but if a hearing is held, this approach could be time and resource consuming and might take longer than rulemaking.8
- c. Policy Statement This option could be selected if the Commission uses, for West Valley (DOE and NYSERDA), its l
pre-existing, generally applicable criteria, or prescribes new criteria for DOE alone. This option could be used to provide public notice that the Commission has elected to use its existing i
I criteria as the criteria for the West Valley site (DOE and NYSERDA).7 The advantage of this i
option is that it could be accomplished quick!? after the Commission has made its determination as to the appropriate criteria. A policy staterrant can be issued first as a draft, which would give the public an opportunity to comment. If a po icy statement is issued final without public j
l comment, less than one FTE would be required. However, if public comments are solicited, the resources would depend on the number of comments received, and resource requirements would probably exceed one FTE.
- d. Letter to DOE l
l This would be the least formal method for prescribing the criteria for DOE's cleanup of the l
.WVDP. Public notice would be accomplished by publishing a notice of the letter in the Federal Register. It would be a one-step process (indicating, in final form, the criteria that will be used)
'In addition, if the criteria imposed by order are new and different from existing regulations and not supported by prior environmental review, including the ongoing environmental review (EIS) being prepared by DOE and NYSERDA for the VWDP; an environmental analysis would be needed to support the new criteria.
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7The policy statement or letter approach could also be used to " prescribe" new (i.e., not i
currently existing) decommissioning criteria for DOE alone.
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i The Commissioners as opposed to a two-step process (i.e., draft and final). Only a fraction of an FTE would be required to implement this option. The disadvantage is that it would not allow any new public Lcomment beyond the opportunities already provided for comment on the criteria.
- 6. Possible lmolications for Reinstatina the NRC License i
i in developing the recommendations in SECY-98-251, the intent of the staff was that the same decommissioning criteria would apply to DOE, and to NYSERDA under a reactivated NRC license.~ in SECY-98-251, the staff identified three potential attematives for long-term control of the site, in anticipation of the possibility of some type of long-term control being identified as part of the preferred altemative.- The long-term control attematives identified were: (1) keep a long-1 term license on the site; (2) seek new legislative authority to allow State or Federal ownership of the site to constitute suitable long-term control without requiring a continued license; and (3) transfer the regulation of the decommissioning of the site to the U.S. Environmental Protection Agency under the Comprehensive Environmente.1 Response, Compensation, and Liability Act.
The possible implications for NYSERDA, post-WVDP, of any long-term control attemative, would be to what extent NYSERDA has a continued obligation to provide institutional control and to be subject to licensing. The Cooperative Agreement between DOE and NYSERDA indicates that the WVDP and DOE's responsibilities at the site are not complete until NRC reinstates the license, allowing NYSERDA to resume possession and control of the site. The extent to which DOE completes its work (including decommissioning) under the project and supports NYSERDA in its post-WVDP obligations under a preferred attemative is not a matter within NRC's j
' jurisdiction or authority, but rather, would be a point of negotiation between DOE and NYSERDA.. Therefore, the implications for NYSERDA, post-WVDP, are up to NYSERDA to determine and negotiate with DOE. When NYSERDA and DOE reach agreement on the completion of the WVDP, they are to inform NRC, and NRC will reinstate the license and resume regulatory oversight.
- 7. Cocceretive Asiestnent With the NYSDEC in the Commission briefing of January 12,1999, and in a letter to the Chairman dated January 6, 1999, commenting on SECY-98-251, NYSDEC identified a cooperative agreement, between NRC, NYSDEC, and Cintichem, Inc. (Cintichem), on the decommissioning of the Cintichem facility, as an example of the type of agreement that it would like to establish for West Valley (details of the Cintichem facility and licensing and how it compares with West Valley are provided in Attachment 5).
Although the' West Valley case is not identical to the Cintichem case, the staff believes that a l
cooperative arrangement on West Valley is appropriate. The agreement could address NRC l
and NYSDEC roles with regard to contamination for which jurisdiction is unclear, and areas of j
the site that could be affected by both the NRC-licensed and State-licensed areas. An i
understanding would also be useful for the exchange of information and for notification of meetings and site safety reviews. There are also shared responsibilities for areas of the sites
The Commissioners 4 that contain hazardous waste. The mechanism for setting out these understandings, however, l
may not require a formal Memorandum of Understanding, or Cooperative Agreement, as was prepared in the Cintichem case. The staff believes that an Office-level agreement between NRC and NYSDEC would be a suitable mechanism for documenting Agency understandings and would minimize staff resources to prepare it. The resources to execute the agreement would be less than 0.2 FTE.
RECOMMENDATIONS:
The staff recommends that the Commission:
1.
Approve either of the following options:
a)
Prescription of the License Termination Rule (LTR) now as the final decommissioning criteria applicable to the Department of Energy (DOE) West Valley Demonstration Project (WVDP); or b)
Issuance of the criteria in SECY-98-251, as proposed criteria, with the final criteria to be prescribed after issuance of the final Environmental Impact Statement (EIS),
but before the record of decision.
2.
Approve transmittal of the Commission decision to DOE by public letter.
3.
Approve the staff's plan to enter into an Office-level cooperative agreement with NYSDEC regarding the West Valley site.
s Karen D. hr General C6unsel William D. Travers Executive Director for Operations Attachments:
See next page 1
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e Attachments:
- 1. Staff Requirements Memorandum, Dated 1/26/99
- 2. Authority, Obligations, and Limitations of NRC Under the WVDP Act
- 3. Optior,s for the Timing for Prescribing Decommissioning Criteria for West Valley
- 4. Length of Time to Accomplish Regulatory Options for Finalizing Decommissioning Criteria
- 5. Cintichem Details and Cooperative Agreement, with Attachment
' Commissioners' completed vote' Sheets / comments should be provided directly to the Office of the. Secretary by COB Wednesday. March 10, 1999.
Commission Staff Office comments, if any, should be submitted to the
' Commissioners NLT March 3.1999, with an information copy to the Office of the Secretary.' If the paper is of such a nature that it requires additional' review.and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
DISTRIBUTION:
Commissioners OGC OCAA OIG OPA OCA ACNW
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IN RESPONSE, PLEASE REFER TO: M990112 r
January 26,1999 MEMORANDUM FOR:
William D. Travers Executive Director for Operations Karen D. Cyr General Counsel i
FROM:
Annette L. Vietti-Cook l
\\
I
SUBJECT:
STAFF REQUIREMENTS - BRIEFING ON DECOMMISSIONING CRITERIA FOR WEST VALLEY,9:00 A.M., TUESDAY, JANUARY 12,1999, COMMISSIONERS' CONFERENCE ROOM, ONE WHITE FLINT NORTH, ROCKVILLE, MARYLAND (OPEN TO PUBLIC ATTENDANCE)
The Commission was briefed on options for decommissioning West Valley by the NRC staff, Department of Energy (DOE), New York State Energy Research and Development Authority (NYSERDA), New York State Department of Environmental Conservation (NYSDEC), and the West Valley Citizen Task Force.
The Commission requested that the staff perform a review of NRC's authority, obligations, and limitations under the West Valley Demonstration Project (WVDP) Act and inform the Commission of the results. Additionally, the staff should inform the Commission of the scope of NRC's license of the site before it was placed in abeyance, including the size of the area and I
range of activities under the license.
(OGC/EDO)
(SECY Suspense:
2/12/99)
The Commission requested that the staff supplement SGCY-98-251 with a more expansive discussion of the options for the manner and timing of how NRC might prescribe the final decommissioning and decontamination (D&D) criteria. This discussion should include the pros and cons of each option, their resource implications, how they relate to the environmental impact statement process, and the possible need for a separate NRC EIS. The supplemental paper should distinguish between waste disposal and decommissioning criteria. The discussion should also inform the Commission of the regulatory options available, e.g., by policy statement or rule, for finalizing the D&D criteria and how that process relates to the timing for finalizing the criteria. The staff should also inform the Commission about the implications of the D&D criteria options for the post-WVDP revival of the NRC license by NYSERDA, if any. The staff also should assess whether a r.,ooperative agreement with NYSDEC is necessary and appropriate in light of potentially shared regulatory responsibilities over areas of radioactive contamination at West Valley affected by both NRC and NYSERDA regulated activities.
(EDO/OGC)
(SECY Suspense:
2/12/99)
l The Authority, Obligations, and Limitations of NRC Under the WVDP ACt i
This analysis cesponds to the Commission's January 26,1999, Staff Requirements i
l Memorandum asued subsequent to its briefing, on January 12,1999, on staff's proposals in SECY-98-251 for decommissioning criteria for the West Valley Demonstration Project (WVDP) j site. The purpose of this analysis is to describe the legal authority, including obligations and limitations, granted to the Nuclear Regulatory Commission (NRC) under the WVDP Act, Pub.L.96-368, enacted October 1,1980.
The primary purpose of the WVDP Act is to direct the Secretary of Energy to carry out a high-level radioactive waste (HLW) management project at the Western New York Service Center (the Center) in West Valley, New York. The Center was the site of a commercial nuclear fuel l
reprocessing plant which had ceased operation, but which, in 1980, remained under an NRC i-Part 50 production facility license possessed by the New York State Energy Research and Development Authority (NYSERDA) and Nuclear Fuel Services, Inc. (NFS)'. Operation of the plant had resulted in the production of liquid HLW stored in tanks at the facility. Congress passed the WVDP Act both for the purpose of demonstrating solidification techniques which could be used for preparing HLW for disposal and for the purpose of taking remedial action in j
response to potential dangers associated with storing liquid HLW in tanks.2
'NFS was licensed as the operator of the facility and NYSERDA was licensed as the owner and lessor. While the intent of the licensees was to establish a commercial reprocessing business, in fact about 61% of the 624 metric tons of spent fuel processed during the six years the facility operated came from the Atomic Energy Commission's national production reactor at Hanford, Washington.
1 2The legislative history indicates that Congress intended to provide Federal assistance to New York exclusively for the purpose of resolving problems created by the storage of liquid HLW at the site, and not with respect to other potential health and safety problems. Thus, for example, the Report of the House Committee on Interstate and Foreign Commerce states:
In reporting a Bill which establishes a program to solidify the [HLW] at West Valley, this Committee was aware that there are health and safety questions regarding other conditions at the site. Specifically, the condition of the [LLWJ burial ground and the disposal of spent fuelin the NRC licensed burial grounds are matters of major concem l
which could affect the public health and safety. In confining the program to the l
solidification of the [HLWJ, this Committee intends that the responsibility for monitoring, 3
maintaining and correcting any additional public health and safety problems remain exclusively with the licensees.
H.R. REP. No. 93-1100, Part II, 96* Cong., 2"' Sen. (1980) (H. REP.ll) at 15-16. This intent is reflected in section 5 of the WVDP Act which states that "[t]his Act shall not apply or be f
extended to any facility or property at the Center which is not used in conducting the project.'
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l 2-L The WVDP Act assigns a limited regulatory role to the NRC, primarily that of consultation.8 Section (c) of the Act requires the Department of Energy (DOE) and NRC to enter into an l
agreement to ebblish arrangements for NRC's review and consultation activities. Certain elements of the agreement are mandated in the statute: (1) NRC is to provide comments on various aspects of DOE's plan for conducting the project and "must specify with precision its l
objections to any provision of the plan" (Section 2(c)(1)); (2) DOE is to consult with NRC on the form for solidification of the wastes and the containers to be used for permanent disposal (Section 2(c)(2)); (3) DOE is to submit for NRC review safety analysis reports and such other information as NRC may require (Section 2(c)(3)); and (4) DOE must afford NRC access to the Center for the purpose of monitoring DOE's activities (Section 2(c)(4)). The Act further provides that NRC's review and consultation activities "shall be conducted informally by the Commission and shall not include, nor require, formal procedures or actions by the Commission pursuant to l
the Atomic Energy Act of 1954, as amended [AEA), the Energy Reorganization Act of 1974, as amended [ ERA), or any other law."
In. addition to its consulting role, the WVDP Act provides the NRC with certain other authorities:
- NRC may prescribe requirements which DOE shall use for its decontamination and
' decommissioning activities (Section 2(a)(5));
- NRC may designate materials at West Valley, other than those specified in the statute, as HLW (Section 6(4));
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'The only role given to the NRC in the initial Bills, as introduced, into each House of Congress on March 19,1980, S. 2443 and H.R. 6865, was that of consultation and no specificity was given as to how, or on what, consultation should occur. The respective Bills were favorably reported, with the same amendment, by the Senate Committee on Energy and Natural Resources on May 20,1980, and by the House Committee on Science and Technology on
- June 18,1980, and each committee left NRC's consulting role in place _Ettp S. REP. No.96-787, 96* Cong., 2* Sess. (1980) (S. REP); H. REP. No. 96-1100, Part I, 96* Cong., 2" Sess.
(1980) (H. REP.1) The amendment added provisions designed to give the State of New York (NY) a greater role in the project, striking a provision calling for transfer of title to the HLW to the Federal Govemment and substituting a provision requiring DOE to enter into a cooperative agreement with NY pursuant to the Federal Grant and Cooperative Agreement Act of 1977. The amendment required, among other things, that the cooperative agreement call forjoint submission by DOE and NY of an application for a license amendment to the NRC providing for
- the project. That this provision was not intended to give NRC licensing authority over DOE is evidenced by the fact that both committees emphasized that, while NRC's consulting role was j
left in place, DOE was to have ultimate decision-making authority. Jap S. REP. at 8; H. REP. I at 9. The House Committee on Interstate and Foreign Commerce substantially revised H.R. 6865 and then, on September 15,1980, favorably reported the Bill. Jap H. REP. II.
- This Committee's revision of the Bill included the provisions of Section (c) noted above which added a great deal of specificity to NRC's consulting role but did not replace it with a more i
formal role.
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- NRC may prescribe concentrations of transuranic elements as contaminants in materials at West Valley to be treated as transuranic waste (Section 6(5)).
l Two other provisions of the statute could implicate the NRC:
l l
- DOE shall transport, in accordance with app!icable provisions of law, the solidified l
waste to a Federal repository for permanent disposal (Section 2(a)(3)); and L
- DOE shall, in accordance with applicable licensing requirements, dispose of low-level j
radioactive waste (LLW) and transuranic waste produced by solidification of the HLW (Section 2(a)(4)).
l The authorities delineated above are limited by the fact that the WVDP Act does not provide l
NRC with licensing authority over DOE. The statute itself specifies that "[n)othing in this Act i
shall be construed as affecting any applicable licensing requirement of the [AEA or ERA)."
J l
Section 5(a). The NRC does not have licensing authority over DOE under either of these statutes for this facility. Moreover, the detailed consulting provisions in Section 2(c) of the
)
WVDP Act, in particular the requirement that NRC's review and consultation activities "shall be conducted informally... and shall not include nor require formal procedures or actions by the Commission pursuant to the [AEA or ERA)," are inconsistent with the notion that the WVDP Act gives the NRC licensing authority over DOE.d l
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l
' Shortly after Congress had passed the WVDP Act, John Dingell and Richard Ottinger, members of the House of Representatives who had played leading roles in passage of this l
l legislation, sent a letter to the Commission expressing their view that, under the WVDP Act, DOE is "under the authority of the [NRC] in regard to this project, and the Commission is then to place [ DOE) in the position of any other licensee, and is thus free to subject [ DOE) to all applicable regulatory requirements in regard to any and all aspects of the authorized project."
Letter from John Dingell and Richard Ottinger to John Ahearne, September 30,1980. The Congressmen based their view on the following analysis: (1) Section 5 of the Act provides that the Act is not to be construed as affecting any applicable licensing requirements and the West j
Valley facility is a licensed facility; (2) the activities authorized by the Act will require an amendment to the license which, under Section 2(b)(4)(D) is to be submitted jointly by DOE and i
NYSERDA, and the Report of the House Committee on Interstate and Foreign Commerce notes 1
l that "[t]he Commission must determine the appropriate procedures for considering this application for an amendment and, if it deems it appropriate, for approving an amendment
. subject to such terms and conditions as the Commission believes to be in accord with its existing statutory authority" (H. REP. ll at 22); (3) the Commission's ability to condition the license amendment, together with the direction in Subsection 2(c) for the NRC and DOE to enter into an agreement with respect to certain aspects of the project, " vest the Commission with all the requisite authority needed to act as the final arbiter of' health and safety issues related to this program and affords the Commission the authority to attach such terms and conditions to the license amendment as may be necessary to exercise this authority." Letter at 2.
L On January 13,1981, the General Counsel sent the Commission a legal analysis of the Act rejecting the views expressed by Congressmen Dingell and Ottinger because, among other
. dven that the WVDP Act does not put DOE in the position of an NRC licensee, the NRC does not have the authority to order DOE to take, or refrain from taking, specific actions.5 Thus, while the WVDP Act authorizes the NRC to prescribe Decontamination and Decommissioning (D&D) criteria and directs DOE to observe such criteria, the Act does not give NRC a role, other than providing comments, in enforcing adherence to the criteria or in determining when DOE's t
decommissioning has been completed or whether it is satisfactorily completed.' Rather, the l
9 reasons, the detailed review regime for NRC's consultation in Section 2(c) and the authorization l
for NRC to prescribe decontamination and decommissioning (D&D) requirements in Section 2(a)(5) would have been unnecessary if the intent of the Act was to have DOE treated as an NRC licensee. Sag SECY-81-24, " West Valley Demonstration Project Act" (January 13,1981).
[
The Commission did not adopt the position advanced by the Congressmen and the license j
amendment issued by the Commission simply authorized the licensees to transfer the facility to DOE subject to the condition (on the licensees) that DOE would assume exclusive possession of the facility until such time as the licensees would reacquire and possess the facility at the completion of the project.
j
'The House Committee on Interstate and Foreign Commerce, during its consideration of l
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the bill, attempted to add just such a provision. Under section 2(e), as incorporated by the Committee, the NRC would have been given the authority to order DOE to not undertake or to i
cease any activity which the Commission determined posed a danger to public health or safety, or to take any action which the Commission thought necessary for public health or safety. DOE would have been required to obey such an order. See H. REP. Il at 2. This provision was E
removed in the compromise bill considered by the full House and did not appear at all in the Senate bill.
'The House Committee on Interstate and Foreign Commerce added the provision to the bill calling for DOE to conduct its d&d activities "in accordance with such requirements as the Commission may prescribe." The Committee explained its rationale for doing so as follows:
As the facility and those portions of the site used in the course of the project would revert l
t to the exclusive control of the licensee at the conclusion of the project, the licensee would then be responsible for all costs which would be incurred in eliminating any violations l
t which were not corrected prior to the termination of the project. The Committee believes that the cost of correcting any violations or acts of noncompliance which were a consequence of the activities conducted during the course of the project should be a part of the cost of the project, and not be imposed exclusively on the licensee. Thus, the project will not be considered to be terminated under (sic) the Commission has decided that the Secretary has, to the extent practicable, utilizing tne most appropriate technology 1
available, performed the [D&D) activities in the manner which complies with all applicable requirements.
H. REP.11 at 19. While this Committee appears to have envisioned some Commission i
determination that its d&d requirements had been successfully followed, the fact remains that the Act gives the NRC no authority to enforce such a determination. Presumably, if NRC had licensing authority over DOE, the NRC could ensure that there were no violations "not corrected 4
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4 NRC license, currently in abeyance, contains a provision requiring the licensee (NYSERDA) to reacquire and possess the facility upon completion of the project. At that time, the NRC will be able to exercise its full authority over the licensee under the Atomic Energy Act to ensure that I
the licensee is in conformity with the Commission's regulations and, in particular, if the licensee desires to terminate the license, to ensure that NRC's Decontamination & Decommissioning (D&D) requirements applicable to the licensee have been met.
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prior to termination of the project" and there would be no need to protect NY from such costs.
Options for the Timing for Prescribing Decommissioning Criteria for West Valley Option A - Prescribe Criteria Before the DOE /NYSERDA Final EIS and Record of Decision
,(ROD) Are issued Under this option NRC would prescribe the LTR and inform DOE and NYSERDA that onsite waste disposal requirements, if needed, could be requested separately by DOE and NYSERDA through the process described in 10 CFR @ 20.2002, "Methodoiogy for obtaining approval of
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proposed disposal procedures." The NRC staff does not consider that an EIS would be necessary for this option, because NRC would be informing DOE to use existing recairements.
Pros Cons Would provide early basis for DOE to develop Does net address current options, being remediation attematives cc:.sidered by DOE /NYSERDA, that use long-term institutional controls Is most consistent with Part 20, Subpart E If long-term institutional controls are Would not require an EIS for NRC action considered at a later time, an EIS would need to be prepared if institutional controls are not Reduces fee burden on other NRC licens0es adequately addressed in the DOE /NYSERDA EIS.
Would support Citizens' Task Force recommendation Option B - Prescribe Criteria After DOE-NYSERDA Final EIS. But Before the Record of Decision isissued Under this option, decommissioning criteria would be proposed so that they could be treated and considered in the DOE /NYSERDA EIS. Following issuance of the final EIS, but before the record of decision, NRC would finalize (prescribe) decommissioning criteria.
Pros Cons Enables DOE /NYSERDA to use NRC Some groups perceive this opton as being prescribed criteria in final decision on less independent than Option A above remediation approach documented in ROD Inconsistent with Citizens' Task Force
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Consistent with DOE /NYSERDA schedule recommendations Consistent with approach in NRC-DOE MOU Does not provide DOE, NYSERDA, or the Enables public input on EIS to be considered in Commission decision Consistent with comments from NYSDEC and l
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Option C - Prescribe Criteria' After DOE-NYSERDA Final EIS and Record of Decision Are issued Pros Cons-DOE /NYSERDA make remediation decision
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NRC has advance kr-c;i:-;- of.
DOE /NYSERDA preferred alterr.ative and without benefit of Commission criteria basis for decision Could require DOE /NYSERDA to rer ssess
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e Enables public input to be considered in remediation decision if Commissic. criteria is Cornmission decision inconsistent with proposed remesistion approach NRC decision could be perceived as a " rubber
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stamp,"if it is consistent with the DOE /NYSERDA decision s
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Length of Time to Accomplish Regulatory Options.
for Finalizing Decommissioning Criteria These regulatory options for finalization would be the methods by which the Nuclear Regulatory Commission would " prescribe" the criteria.
Rulemakina - total 26 months 8-months to publish a proposed rule 6-months public comment period 6-months to evaluate public comments and prepare Commission paper for approval of final rule 4-months to approve final rule 2-months to publish final rule Resources: At least 3 FTE.-
(digdi il9D 6 months, if no hearing requested; 10 months to 30 months if hearing is fd r
requested 6 to 8-weeks to prepare a proposed order for the Commission 6-weeks for Commission to approve the order 3-weeks to publish the order in the Federal Register 6-months to 2 years to finalize order, if a hearing is requested Resources: Less than 1 FTE without hearing. If hearing is held,3 FTE or more'-
Poliev Statement - total 4 months 6 to 8-weeks to prepare a proposed statement to the Commission 6-weeks for Commission to adopt the policy 3-weeks to publish the policy statement in the Federal Register
[lf public comment is sought, an additional 5-6 months would be added.]
Resources: Less than 1 FTE without public comment. More tnan 1 FTE if public comments are requested.
Letter to DOE - total 4 months 6 to 8-weeks to prepare a proposed letter for the Commission weeks for Commission to approve the letter 3-weeks to publish a Federal Register notice on the letter Resources: less than 0.5 FTE l:
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CintiChem Compared.to West Valley I
l The Cintichem facility was a medical isotope production reactor and hot lab facility in Tuxedo, New York. The facility produced primarily medical radioisotopes by irradiating high-enriched uranium targets, in a 5 MW research reactor, and chemically processing the irradiated targets to i-separate the desired isotopes. Cintichem had an Nuclear Regulatory Commission (NRC) l-license for its reactor and an NRC special nuclear materiallicense for possession and use of the enriched uranium. Cintichem also had a byproduct material license issued by the State of New York. At Cintichem, due to the configuration of the operations that took place, there was no l
.. clear physical demarcation between the different licensed activities. In 1990, after leaks were found in the reactor coolant pool system, Cintichem decided to decommission the facility. On October 19,1990, Cintichem submitted, to the NRC, a license amendment application for t
' approval of a decommissioning plan.
The New York State Department of Environmental Conservation (NYSDEC) requested a hearing related to the license application requesting approval of the decommissioning plan.
Under the Cintichem Cooperative Agreement between NYSDEC, NRC,' and Cintichem (attached), NYSDEC withdrew its request for hearing. The parties also agreed to: (1) open exchanges of information; (2) notification of NYSDEC prior to NRC meetings and inspections; (3) the use of NRC decommissioning criteria, and (4) a process for commenting on decommissioning issues and resolving any regulatory differences.
At West Valley, NRC and NYSDEC jurisdictions are more clearly defined. NRC regulates all l
- radioactive material on the site except the State Disposal Area (SDA). NYSDEC, and other New -
York Agreement State agencies, regulate the SDA at the site as well as non-radioactive solid
~ waste and hazardous waste for the entire site. There are no shared NRC/NYSDEC responsibilities for radioactive materials at the West Valley site.
Attachment:
As stated I;
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COOPERATION AGREEMENT This' Agreement made ~as of this 12th day of March,1991, by and between the Staff of the-United States Nuclear Regulatory Commission, an agency of the federal government of the United States of America, having an office at One White Flint North, 11155 Rockville Pike, Rockville, Maryland 20852 ("NRC"); the New York Department of Environmental Conservation, an agency of the State of New York, having an office at 50 Wolf Road,' Albany, New York 12233 ("NYSDEC"); and Cintichem, Inc., a Delaware corporation, having an office at long Meadow Road, Tuxedo, New York 10987 (" Licensee").
WITNESSETH WHEREAS, 'on October 19, 1990, Licensee filed an application with.the NRC requesting the NRC's approval of a detailed plan for the decontamination and decommissioning of its five (5) Megawatt nuclear research reactor and radiochemical processing laboratory (hereinafter the " Reactor Facility") located at its plant site in Tuxedo, New York (hereinafter the " Decommissioning Plan"), which has heretofore been operated pursuant to NRC Reactor License No. R-81, NRC Special Nuclear Materials License No. SNM-639 and, in part, New York State Department of Labor ("NYDOL")
Radioactive By-Product Materials License' No. 729-0322 (hereinafter the " Licensee's Application"); and
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2 WHEREAS, in response.to a Notice of Opportunity for Hearing, published on January 14, 1991 (56 Fed. Reg.1422), NYSDEC filed a timely Request for Hearing and Petition to Intervene on February 15,1991 (hereinafter the " Petition") with respect to l
Licensee's Application, the Decommissioning Plan and the Decommissioning Process
'(each as herein defined and hereinafter collectively referred to as " Decommissioning Activities"); and i
WHEREAS, NRC, NYSDEC and Licensee have conferred and concluded that the l
7 Petition was a formal means of registering NYSDEC's ' responsibilities and concerns and formally exercising any rights of NYSDEC in respect to the Decommissioning Activities, and without NRC and Licensee conceding the sufficiency of such Petition, would like
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l to ensure that NYSDEC will enjoy a full, complete and open exchange of information j
and the opportunity to express its views with respect to the Decommissioning Activities; l
and I
WHEREAS, NRC, NYSDEC and Licensee have further conferred and reached
' agreement. concerning'certain procedures and course of conduct and dealings to be followed during the Decommissioning Activities all as more specifically set forth herein; and.
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WHEREAS, based upon and subject to the provisions of this Agreement, l
~ NYSDEC now wishes to withdraw its Petition; i
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3 NOW THEREFORE, in consideration of the premises and mutual covenants set forth herein, and intending to be legally bound, NRC, NYSDEC and Licensee all agree as follows:
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1.
During May,1989 the NRC and NYSDEC entered into a Letter of Agreement formalizing ' the understanding of the NRC, NYSDEC and NYDOL (hereinafter the " Agencies") regarding the specific areas of exclusive jurisdiction of each of the Agencies at the Licensee's plant site located in Tuxedo, New York (hereinafter the " Letter Agreement", a copy of which is attached hereto as Exhibit A and incorporated herein by this reference). The NRC, NYSDEC and Licensee agree that j
the Letter Agreement is and will continue in full force and effect in accordance with its terms and conditions. The NRC, NYSDEC and Licensee also agree that the Letter Agreement will govern matters of jurisdiction at the Licensee's plant site located in Tuxedo,- New York during the Decommissioning Activities, until the Termination Order (s) and Notice (as hereinafter defined) are issued.
2.
On June 6,1990, NYSDEC and Licensee entered into an Order on Consent.
The NRC, NYSDEC and Licensee agree that the Consent Order is and will continue in full force and effect in accordance with its terms and conditions during the Decommissioning Activities.
3.
During the Decommissioning Activities, it is the express intent of NRC, I
NYSDEC and Licensee to have a full, complete and open exchange of information l
concerning the Decommissioning Activities, subject to such conditions as may be 1
..t.
necessary and appropriate for the protection of classified, proprietary and/or securitv or safeguards information (including, when appropriate be exemption from disclosure to or by NYSDEC pursuant to 6 NYCRR l 616.7 or any other appropriate provisions of federal or state law) and to afford NYSDEC the opportunity to present in accordance with paragraph 7,
its views, concerns and information with respect to the Decommissioning Activities to the NRC and Licensee and to have NRC and Licensee consider NYSDEC's views, concerns and information on a timely basis during the pendency of the Decommissioning Activities. To this end, NRC, NYSDEC and Licensee agree that these intentions will govern each of their actionc during the Decommissioning Activities and the interpretation of the terms and conditions set forth in this Agreement.
4.
(a)
NRC and Licensee agree to furnish NYSDEC with copies of all correspondence, reports, documents, or other written information of any kind in any form whatsoever which either furnishes to the other during the Decommissioning Activities, which pertain to the review, progress, evaluation or status thereof. NRC and Licensee may request prior to the submission of such information that NYSDEC to the protection of classified, proprietary, and/or security or afeguards agree information.
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(b)
NRC, NYSDEC and Licensee agree that each will furnish to the others copies of any correspondence or other written information of any kind in any form whatsoever which any of them send to or receive from any federal, state, local, or private agency or entity not a party to this Agreement which pertains to the review, progress, evaluation or status of the Decommissioning Activities.
5 (c)
NRC, NYSDEC and Licensee agree to furnish each other with copies of all correspondence, reports, documents, or documented oral or written information of any kind in any form whatsoever which is exchanged between any of the parties with respect to the Decommissioning Activities, as limited by paragraph d, recognizing that NYSDEC is subject to New York State Public Officers Law, f 87, incorporated herein by reference.
(d)
The obligations of NRC, NYSDEC and Licensee as set forth in sections (a), (b) and (c) of this Paragraph 4 shall not extend to or include draft, pre-decisional or other documents including those protected by the New York State Public Officers Law f 87 prepared or received by the parties hereto and/or their consultants and agents, or documents which are or would otherwise be protected from disclosure under the Freedom of Information Act. (5 U.S.C. 5 552).
5.
NRC agrees to provide NYSDEC with timely notification, on a best efforts basis, of upcoming meetings and inspections between NRC and Licensee relevant to the review, progress, evaluation or status of the Decommissioning Activities and that NYSDEC may attend and participate in such meetings as appropriate, and accompany the NRC on such inspections. Should NYSDEC elect to attend such meetings and accompany NRC on such inspections, NYSDEC agrees that such attendance is for the purpose of achieving and maintaining a full, complete and open exchange of information, views and concerns relative to the Decommissioning Activities and that NYSDEC shall not unreasonably extend or change the scope or objective of such meetings, inspections or Decommissioning Activities.
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6-6.
The parties hereto agree to make timely response, on a best efforts basis,
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to any other Party's reasonable request for additionalinformation relevant to the review, progress, evaluation or status of the Decommissioning Activities, provided that NRC, Licensee and/or their consultants, shall not be required to perform additional testing,'
l calculations or other evaluations or analyses except as the NRC deems, in its sole discretion, to be appropriate or required in order to satisfy the requirements of the i
Atomic Energy Act. of 1954, as amended, and the rules and regulations promulgated thereunder.
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l 7.
-(a)
NRC agrees to afford NYSDEC a reasonable opportunity to present its views in a timely manner to the NRC concerning the ' Decommissioning Activities i
.before the NRC makes a final recommendation or determination 'on any approval of.
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or conditions for, the Decommissioning Activities. NYSDEC agrees to submit its views
- concerning an issue or aspect of the Decommissioning Activities in writing to both the
.l NRC and Licensee within five (5) business' days of the receipt of any correspondence,
. report, document or other written information from either NRC or Licensee, or an oral l
request for its-views made by the NRC, except that an extension of time may be provided pursuant to paragraph 7(c)..
(b) ' NRC also agrees to afford Ucensee a reasonable opportunity to present
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its position on NYSDECs views concerning the' Decommissioning Activities in a timely manner to the NRC before the NRC acts on such views expressed by NYSDEC.
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l Licensee agrees to submit its position with respect to NYSDECs views within five (5) p 4
business days of its-receipt of such views in writing from NYSDEC, except that an p
extension of time may be provided pursuant to paragraph 7(c).
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7 (c)
As timely implementation of Decommissioning Activities is agreed to be in the interest of all parties, NYSDEC and Licensee agree and acknowledge that the l
granting of any extensions of time within which to respond and present their views or l
positions will be within the sole discretion of the NRC.
(d)
Further,in view of the provisions of the Letter Agreement and Consent i
Order, should the NRC and NYSDEC be unable to resolve conflicting viewpoints l
concerning an issue or aspect of the review, progress, evaluation, status, conditions or approval of the Decommissioning Activities, the position and opinion of the NRC shall prevail.
However, upon the written request of NYSDEC, the NRC will promptly provide NYSDEC with a written justification or explanation of its position or opinion.
The provision of such written justification or explanation will not delay the implementation or rendering of NRCs viewpoint, approval or decision on an issue or aspect of the Decommissioning Activities, unless and until the NRC so orders or directs.
'(e)
De parties agree that they shall retain all legal rights under the Commission's regulations and the Atomic Energy Act including late intervention and late-filed contentions. This agreement is not meant to abridge the rights of the parties in forums other than that of the NRC.
8.
Subject to paragraph 7(e) hereof, NYSDEC, NRC and Licensee acknowledge that upon the issuance of an Order (s) and/or license amendment, by the NRC granting approval of ~ the Decommissioning Plan and any supplements thereto, Licensee will L
implement, with all due dispatch and care, the approved Decommissioning Plan, thereby decontaminating and dismantling the Reactor Facility and disposing of or.otherwise l'
handling the radioactive and non-radioactive components, rubble and waste generated
by'such activities in accordance with the methods and specifications set forth in the Decommissioning Plan or as otherwise ordered or directed by NRC (Serein 'he
" Decommissioning Process").
l 9.
Subject to paragraph 7(e) hereof, NRC, NYSDEC and Licensee further acknowledge that upon completion of the activities authorized by the NRCs Order (s)
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and/or license amendment approving the Decommissioning Plan and any supplements thereto and verification by the NRC that in'its sole and exclusive opinion acceptable levels of radioactive contamination have been achieved by the performance of the j
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activities detailed in the Decommissioning Plan and any supplements and amendments thereto, such that a condition suitable for unrestricted use has been attained, the NRC will issue an Order terminating NRC Reactor License No. R-81 and a written notice terminating NRC Special Nuclear Materials License. No. SNM-639 (hereinafter the
" Termination' Order and Notice"). In making such determinations that acceptable levels of radioactive contamination have been achieved at the Licensee's facility located in Tuxedo, New York the NRC shall be guided by its guidance, past practice, professional
- judgment and other criteria, and prior to the issuance of the Termination Order (s) and Notice the NRC will make any findings required by the Atomic Energy Act of 1954, as amended.
10.
NRC, NYSDEC and Ucensee-agree that _ this Agreement confers no regulatory control, jurisdiction or authority upon NYSDEC over or with respect to the Decommissioning Activities; however, this Agreement will not prevent the NRC from designating in writing a particular aspect or function to be carried out by NYSDEC on
a c,
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[ behalf:of NRC, provided that the NRC makes such a designation pursuant'to its sole and exclusive authority, after allowing the Licensee the opportunity to express its views and opinion, that such' desigriatio'n is appropriate and allowed under the applicable laws,.
j rules and regulations.
t 1 1.-
Immediately1upon_ the execution' of.this Agreement, (a) NYSDEC shall j
execute and file with the NRC a Notice of Withdrawal of its Petition, and (b) Licensee j
'shall execute and transmit to the Secretary of the NRC a letter, requesting confirmation q
that no hearing has been or will be convened pursuant to the Petition filed by NYSDEC
-in the matter of Licensee's Application.
j
.12.
All communications' and ' copies of correspondence, reports, documents or written information of. any kind 'in any. form whatsoever which shall be exchanged
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- between the perties hereto pursuant to the terms of this Agreement shall be sent to all
- parties in identical.. fashion and,-if requested, by rapid means (i.e.: by facsimile or overnight courier service; material so sent shall be deemed as received by the Addressee on.the.same day, or the next succeeding business day following dispatch, respectively).
During the Decommissioning Activities, rapid means will be used between the parties i
- hereto for urgent communications or the exchange of information for which comments y
are known'to be required.
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- 13. This Ag t ement shall take effect immet.iately upon the execution by all 4
partfes hereto.
I NEW YORK STA*i li DEPARTMENT 05 U.S. NUCLEAR REGULATORY ENVIRONMENTAl. CONSERVATlON !
COMMI.4SION STAFF I
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By:
Susan C Qoliie Eji 7%Ine 1. Unan, Attonicy Ofuce of the Ger.cral Co.sasel
Title:
Se dor Attecuy l
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By: f.l;71,$acAactL E43 Counsel forWt chetr4 inc.
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I 03-14-91 Di.15PM 702
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13.
This Agreement shall take effect immediately upon the execution by all parties hereto.
NEW YORK STATE DEPARTMENT OF U.S. NUCLEAR REGULATORY ENVIRONMENTAL CONSERVATION COMMISSION STAFF 214dGs C. Qubtt
_[.
By:
Susan C. Quine By: Elaine I. Chan, Attorney
Title:
Senior Attomey Of5ce of the General Counsel CINTICHEM, INC.
By:
Philip K. Yachmetz, Esc.
Counsel for Cintichem, : nc.
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4 LETTER OF AGREENENT This is to confirm the general agreement reached during a September 23, 1987 meeting between the U.S. Nuclear Regulatory Commission staff and two agencies of the State of New York, the Department of Labor and the Department of Environmental Conservation, regarding jurisdiction over activities at the Cintichen, Inc. facility in Tuxedo New York and the impact of that jurisdiction on inspection and enforcement activities conducted by the respective agencies. As a result of that meeting and previous discussions, the agencies agreed that there was a need to formalize the understanding of NRC and' State of New York jurisdiction at the Cintichem site and to establish a procedure for the interaction and coordination between the respective agencies on inspection and enforcement activities.
q A.
With regard to statutory authority it is understood that:
(1)
The NRC has exclusive jurisdiction over the Cintichem research reactor pursuant to 10 CFR Part 50 and NRC License No. R-81; (2) The possession and use of special nuclear material outside of the research reactor is covered by NRC License No. SNM-639 and is also under the exclusive jurisdiction of the NRC.
This jurisdiction extends to any area of the Cintiches site where SNM is possessed or used.
(3) The State of New York, through an agreement between the NRC and the State pursuant to Section 274 of the Atomic Energy Act, has exclusive jurisdiction over the possession and use-of byproduct material anywhere on the Cintiches site, exclusive of the reactor; and (4) Nothing in this Letter of Agreement changes or modifies in any way the statutory jurisdiction of the NRC and the State of New York.
B.
Given the aforementioned jurisdictions, the following has been agreed to regarding inspection activities.
(1) Reactor operations authorized under NRC License R-81 will continue to be inspected exclusively by NRC; (2) The possession ~and use of byproduct material under New York State License Number 729-0322, such as the production of radiopharmaceuticals where the presence of SW is not expected, will continue to be inspected exclusively by the State;.nd
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(3) The remaining areas of the Cintichem site, where the use of byproduct material under State license and special nuclear material under NRC License SNM-639 is not physically separable, will be subject to inspection by both the NRC and the State.
Each of the three agencies will enforce their respective regulations, as applicable.
C.
We further agree that, with respect to situation B.(3) above, the following procedures will govern the activities with regard to onsite inspections:
(1) Each of the three agencies will notify the others of their intent to conduct an inspection at the Cintichem facility; (2)
Each of the three agencies reserves the right to accompany the agerd:
aducting the inscection, on the inspection; (3)
The three agencies will coordinate enforcement actions on a case-by-case basis in order to minimize duplication or inconsistent inspection findings, citations, orders, civil penalties, etc., in areas of dual responsibility.
Each of the three agencies reserves the right to pursue further enforcement action if it is required by law or otherwise deemed necessary; and (4) Copies of licensee responses to enforcement actions by the agency conducting the t'nspection will be provided to each of the other agencies. The three agencies will make a good faith, best efforts attempt to come to timely agreement as to the acceptability of the licensee's corrective actions.
However, the agency conducting the inspection will have final responsibility for the acceptability of the corrective actions. Each agency reserves the right to obtain additional information from the licensee as permitted by law, if required or otherwise deemed necessary by that agency.
FOR THE U. S. NUCLEAR REGULATORY COM4ISSION a[
/9&P Malcolm R. Knapp, Kf (tor g/
Date f
Division of Radiat16n Safety and SMeguards
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3 FOR THE NEW YORK STATE DEPARTHENT OF LABOR Y2 -,
.9~-//-W Fran s/J. Bradle Date' Pri ipal Radi icist FOR THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION M
O/f-Sp N. G. Kaul, Director Date Division of Hazardous Substances Regulation i
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