ML20211N800
| ML20211N800 | |
| Person / Time | |
|---|---|
| Issue date: | 02/11/1997 |
| From: | Blaha J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | Boyle R, Coplan S, Raddatz C NRC COMMISSION (OCM) |
| Shared Package | |
| ML20211N786 | List: |
| References | |
| FOIA-97-105 2.206, NUDOCS 9710170128 | |
| Download: ML20211N800 (1) | |
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' UNITED STATES 8 % 4 NUCLEAR REGULATORY COMMISSION I f WASHINGTON, D.C. aceeHeM
..... February 11, 1997.
NOTE TO C0HNISSIONER ASSISTANTS OCH/SJ OCH/KR OCH/GJD
_ Harylee Slosson cc w/o Hyron Karman _ Brad Jones
_ Annette Vietti Cook _ Nort Fleishman Terence Chan
,_ Karla Smith _ Jack Sorensen _
Anthony Markley
__ James Johnson L Seth Coplan .cc w/o Joel Lubenau
_. Brian Holian _ Lil Van Cise cc w/o Torre Taylor L Regis Boyle _ Ann Haikalis _ Donna Smith
'- Jackie Silber - Joanne Field Janice Dunn Lee
_ Elmo Collins 0CH/ND OCH/Eli cc w/o Scott Noore Evelyn Williams cc wLo Maria Lopez Otin cc w/o Joe Gray Glady Ordaz _. Roger Davis L Janet Schlueter
_ _ Judy Ledbetter L Charleen Raddatz ._ James Beall
_ Leslie Hill _
Tony Hsia _ Jeffry Sharkey
_ Frances Marek _ Les Constable _ Cathy Grimes
_ Pat Celenza _ Alice Gehl _ Linda Lewis
_ Vicki Bolling FROM: James L. Blaha 5-Assistant for Op9ations, OEDO
SUBJECT:
DIRECTOR'S DECISION ON NATURAL RESOURCES DEFENSE COUNCIL'S 10 CFR 2.206 PETITICN The subject document is provided for your information.
Attachment:
As stated cc: EDO (w/o attachment)
E. Jordan DEDO (w/o attachment)
H. Thompson. DEDR (w/o attachment)
P. Norry, DEDM (w/o attachment)
J. Blaha, A0 (w/ attachment)
K. Stablein, OED0 (w/ attachment)
S. Wastler, NHSS (w/o attachment)
SECY (w/ attachment)
OGC (w/ attachment)
OCA (w/o attachment)
OPA (w/o attachment)
Information in this record was deleted in accordance with F th3 reedom of Information
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- UNITED STATES l
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NUCLEAR REGULATORY COMMISSION WASHINGTON, O C. P0!4!4001 i
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% . . . . . */ February 7,1997 s
Dr. Thomas 8. Cochran, Ph.D. '
Ofrector, Neclear Program .
Natural Resources Defense Council 1200 New York Ave., N.W.
Suite 400 Washington, D.C. 20005
SUBJECT:
DIRECTOR'S DECISION ON NATURAL RESOURCES DEFENSE COUNCIL'S
. 10 CFR 2.206 PETITION 1
l Dear Dr. Cochran.
By letter dated January 8,1997, you submitted to the U.S. Nuclear Regulatory Coms.issfon, on behalf of the Natural Resources Defense Council, a Petition, pursuant to 10 CFR 2.206, requesting that NRC take action regarding Envirocare of Utah, Inc. Specifically, you requested that NRC immediately revoke any license 9r licenses, or cause the State of Utah to revoke its Agreement State license or licenses, held by Envirocare of Utah, Inc. (Envirocare), Khosrow Semnani, or any entity controlled or managed by Khosrow Semnani; prohibit the future issuance of any license by NRC, the State of Utah, or other NRC Agreement State, to Khosrow Semnani or any entity with which he has a significant' affiliation; and suspend Utah's Agreement State status until the State of Utah can demonstrate that it can operate the Utah Division of Radiation Control in a -lawful manner. As a basis for this Petition, you asserted that an article in the Decenber 28, 1996, Salt Lake Cfty Tribune reported secret cash payments made by Mr. Khosrow Semnani, president of Envirocare, to Larry F. Anderson, then Director of the Utah Division of Radiation Control, and the State of Utah's subsequer.t initiation of a criminal investigation into the matter.
NRC's response to your request regarding the Agreement. State program is provided in Enclosure 1. The Director Office of Nuclear Material Safety and Safeguards, has completed his review of the other issues raised in your Petition. For reasons explained in the enclosed Director's Decision 00-97-02, dated February 5,1997 (Enclosure 2), your request has been denied. Although the NRC is concerned about the implications raised by the issues identified in your petition, at this time we do not believe that specific information exists to ta(e the action requested in the petition. We will be closely monitoring the investigations of this issue being conducted by the State of Utah to ensure that we are aware of any information that may warrant action on our part. In-addition, you are free to submit another petition when additional facts may be available to you on this issue.
As provided by 10 CFR 2.206(c), a copy of this decision will be filed with_the Secretary of the Commission for the Commission's review. As provided by this regulation, the Decision will constitute the final action of the Commission 25 days af ter the date of issuance of th Decision unless the Comission, on its
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'own motion, institutes a review of the Decision within that time, in ,
addition, a copy of the notice.that is being flied for publication with the l
' Office of the Federal Register is also included as Enclosure 3 for your :
infomation. 4 i
l Sincerely, '
O
. 4 Hugh L. Thompson Jr i Acth g Executive 31 e or i for Operations .
Enclosures:
.As stated (3)-
cc: W. Sinclair, Director, Olvision of Radiation Centrol, Utah l- C. Judd. Executive Vlee-President, Envirocare ,
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7,techran 3 own motion, institutes a review of the Decision within that time, in addition.na copy of the notice that is being filed for publication with the ;
Office of the Federal Register is also included as Enclosure 3 for your ;
information. !
- Sincerely, i 4 ,dty >
4 N M it i - < s,;.Evi). Jr,
- Hugh L. Thompson, Jr.
i Acting Executive Director for Operations ,
Enclosures:
. As stated (3) cc: W..Sinclair, Director, Division of Radiation Control Utah !
2 C. Judd, Executive Vice-President, Envirocare
- See previous concurrence ,,N,u ).- 1 0FC HLUR* HLUR* DWH* N3)i NMSS* _ _ _
NAME SWastler JHolonich JGreeves .JGelb EKraus i
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0FC NMSS- Ol* OE* OSP* EDO P i
CPaperiello RBangart Ws HThompson j NAME RFortuna JLeiberman l' DATE 02/E/97- 02/04/97 02/04/97 02/03/97 02/@/97
-St\dwn\pahl\slw\NRDC-TL.DFT 0FFICIAL RECi)RD COPY Distribution: EDO G970017/NMSS 9700010 PUBLIC Docket File 40-8989 DWM r/f DWM t/f 4'
PAHL r/f HLUR r/f-NMSS Dir. Off r/f CPoland
-MFederline JGreeves '
DGillen HLefevre RFonner, OGC
. PLohaus, OSP SDroggitis, OSP JGoldberg, OGC GDeegan, IMNS ,
JDeCicco, IMNS I Schidikel OGC 'j WBrown, RIV.
R0'Connell,lMNS .
DMurphy, 01 l KStablein ED0 LCoblentz, OE Piressler.1EDO I
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.. Commission, on its own motion, institutes a review of the Decision wit hin that time. In addition, a copy of the notice that is being filed for publ' cation with the Office of the Federal Register is also included as Enclosure 3 for your information.
Sincerely, Hugh L. Thompson, Jr.
Acting Executive Director for Operations
Enclosures:
As stated (3) cc w/ enclosures: W. Sinclair, Director, Division of Radiation Control, Utah C. Judd, Executive Vice-President. Envirocare
- See previous concurrence 0FC HLUR* DWM*- OCC" - 0 NMSS*
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NAME SWastler JHolonich JGheeves dGoldberg EKraus .
mums musa mem suma summe 0FC NHSS Ol* OE* OSP* EDO NAME CPaperiello RFortuna JLeiberman RBangart HThompson DATE 02/ /97 02/04/97 02/04/97 02/03/97 02/ /97 38\dwn\pahl\slw\NRDC-TL.DFT OFFICIAL RECORD COPY Distribution:
ED0 Ticket 970010 PUBLIC Docket File 40-8989 DWM r/f DWM t/f PAHL r/f HLUR r/f Dir r/f .
CPolandet/f MFeder.line JGreeves DGillen HLefevre RFonner, PLohaus, OSP SDroggitis OSP
- JGoldberg, OGC GDeegan, IMNS
. JDeCicco, IMNS
- Schidakel, OGC
- W8rown, RIV R0'Connell
- DMurphy, 01 4
T:'C'ochean 3 l . ,
,, Commission, on its own motion, institutes a review of the Decision within that !
time. In addition, a copy of the notice that is being filed for publication .
with the Office of the Federal Register is also included as Enclosure 3 for '
your information.
Sincerely, 1
! l Hugh L. Thomps n, Jr.
- Acting Execu ve Director for .
Operation .
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Enclosures:
As stated (3) cc: W. Sinclair, Director, Jivision of Radiatio control, Utah C. Judd, Executive Vice-President, Enviroc e 0FC HLOR , 3 HLd4 $ DWh / OGC NHSS _
NAME SWaftkmk) JHo%ich JM/ WReandNddtvlo EKraus MI[b bd mean usans mums suam amma 0FC NMSS .Q) mph u 0E M'ftalh QSP(Ji/Y4# EDO 3 NAME CPaperiello RF6 b na d $t/behd knMith HThompson DATE 02/ /97 02/h/97 [2/ d /97 02/3/97 02/ /97 J:\dwn\pahl\slw\NRDC-TL.DFT FFICIAL RECORD COPY l Qistribution:
ED0 Ticket 970010 bj[gf /
PUBLIC Docket File 40-8989 DWM r/f DWM t/f PAHL r/f HLUR r/f Dir r/f CPoland t/f 1 l MFederline .
, JGreeves l
DGillen-
, HLefevre l RFonner, PLohaus, OSP SDroggitis, OSP JGoldberg, OGC GDeegan, IMNS JDeCicco, IMN Schidakel, O C WBrown, RIV RO'Connell DMurphy, I l KStablei , EDO l LCoblentz, DE-
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DD-97-02 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFl/.E OF NUCLEAR MATERIAL SAFEIY AND SAFEGUARDS Carl J. Paperiello, Director in the Natter of ) Docket No. 40-8989 1 License No. SNC-1559 ENVIROCARC OF UTAH, INC. j 3 (10 C.f.R. $ 2.206)
DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206
!. INTRODUCTION In a letter dated January 8,1997, Dr. Thomas B. Cochran, Director of Nuclear Programs, Natural Resources Defense Council (NROC) requested, under 10 CFR 2.206 of the Commission's regulations, that NRC take action to revoke all licenses held by Envirocare of Utoh, Inc. (Envirocare). Specifically, the ,
Petition requested that "...NRC take the fol)owing actions:
- 1) Inmediately revoke the license or licenses, or cause the state of Utah to revoke its agreement state license or licenses, under which Envirocare is currently permitted to accept low-level radioactive waste and mixed waste for permanent disposal,
-2) Inmediately revoke the NRC 11e.(2) byproduct material license under which Envirocare is currently permitted to accept uranium alli tailings for disposal.
- 3) Inmediately revoke any other NRC license, or agreement state license, if such license exists, held by Envirocare, Khosrow
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Semnani, or any entity controlled or managed by Khosrow Semnani, hh/b'1 .
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- 4) Prohibit the future issuances of any license by the NRC, the State of Utah, or other NRC agreement state, to Khosrow Semnant or anycompanyorentitywhichheowns, controls, manages,or[with which hel has a sionificant affiliation or relationship.
- 5) Suspend the agreement with the state of Utah under which regulatory authority has been transferred from the NRC to the Utah's [ sic) Bureau of Radiation (Division of Radiation Control),
until the state of Utah can demonstrate that it can operate the Bureau of Radiation [Di.ision of Radiation Control) ir a lawful manner, and without the participation of licensees, or employees of licensees, in Bureau of Radiation (Division of Radiation Control)oversightroles."
NRDC asserts, as a basis for the request, that a December 28, 1996, article in The Salt. Lake Tribune reported that between 1987 and 1995, Mr.
Semnani made secret cash payments to Mr. Larry F. Anderson, who served as Director of the Utah Division of Radiation Control (UDRC) from 1983 t..itil 1993. The article also reported that the Utah Attorney General's office has initiated a criminal investigation into the matter.
Although NRDC's request that NRC suspend its agreement with the State of Utah, or cause Utah to revoke the license that it issued, do not squarely fall 2
4 within the scope of matters ordinarily considered under 10 CFR 2.206', the staff has evaluated the merits of those requests. This evaluation is contained in a separate "NRC Staff Evaluation of Natural Resources Defente Council Request to Suspend Section 274 Agreement With The State of Utah.'
This Director's Decision will address the NRDC requests that relate to the license to receive, store, and dispose of certain byproduct material issued to Envirocare by NRC pursuant to Section lle.(2) of the Atomic Energy Act of 1954 (AEA), as amended.
!!. BACKGROUND Envirocare operates a radioactive waste disposal facility in Clive.
Utah, 128 kilometers (80 miles) west of Salt Lake City in western Tooele County. Radioactive wastes are disposed of S modified shallow land burial techniques. Envirocare submitted its license application to the NRC in November 1939 for commercial disposal of lle.(2) byproduct material, as defined in Section 11e.(2) of the AEA. On November 19, 1993, NRC completed its licensing review and issued Ew irocare an NRC license to receive, store, and dispose of uranium and thorium byproduct material. Envirocare began
- receiving 11e.(2) byproduct material in September 1994 and has been in
- continuous operation since.
To ensure that the facility is operated safely and in compliance with
' NRC Manual Directive 8.11. " Review Process for 10 CFR 2.206 Petitions,"
issued September 23, 1994 (revised December 12,1995), states that the scope of the 10 CFR 2.206 process is limited to requests for enforcement action against licensees or entities engaging in NRC-licensed activities. But see State of Utah (Agreement Pursuant to Section 274 of the Atomic Energy Act of 1954,asAmended),-00-95-1,41NRC43(1995).
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NRC requirements, the staff conducts routine, announced inspections of the site. Areas examined during the inspections include management organization and controls, operations review, radiation protection, radioactive waste l
management, transportation, construction work, groundwater activities, and l environmental monitoring. The NRC has conducted five inspections of the
- Envirocare facilities .and has cited the licensee for three violations. All violations were categorized in accordance with the guidance in NUREG-1600,
" General Statement of Policy and Procedures for NRC Enforcement Actions" (Inforcement Policy) at a Severity level IV.3 The first violation, issued as a result of a July 1995 inspectica and the second violation, issued as a l
l result or a July 1996 inspection, have beer, adequately resolved by Envirocare.
The last inspection, conducted on hovember 18-22, 1996, resulted in the l 1ssuance of the third citation noted above. This violation involved a failure l to develop and implement, in a timely manner: 1) site-specific standards for ;
! three constituents found in the groundwater that exceeded their baseline l- vrlues, and-2) a Compliance Monitoring Plan for arsenic after it was found to exceed its baseline value. These results of the November 1996 inspection are documented in inspection Report 40-8989/96-02 which was issued on January 28, 1997. The NRC is in the process of determining whether Envirocare has taken appropriate action to correct this violation.
In addition, the November 1996 inspection identified other areas of l concern where the staff determined that additional evaluation was necessary, 1
l 2
As explained in Section IV, of the Enforcement Policy, violations are !
normally categorized in terms of four levels of severity. A Severity level IV
- violation is defined as a violation of more than minor concern which, if left uncorrected, could lead to a'more serious concern, 4
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As a result, a follow-up inspection was conducted the week of January 27, 1997. Areas that were examined during this inspection included: 1) the ,
licensee's quality assurance / quality control program; 2) the licensee's review of changes made to the facility; and 3) contractor laboratory certification.
The results of the January 27, 1997, inspection are currently being evaluated.
Once this evaluation is complete, the NRC will document the results in an
- inspection report. Based on a preliminary review of the inspection results, no significant violations were identified.
!!!. 0!SCUS$!0N In December 1996, the Salt Lake Trfbune published a series of articles that questioned the relationship between Larry F. Anderson, former Director of UDRC and Khosrow Semnani, President of Envirocare, during tne licensing of the low level radioactive waste (LLW) disposal facility. Subsequently, the NRC staff learned that on May 16, 1996, Larry F. Anderson filed a complaint against Khosrow B. Semnant in the Third Judicial Olstrict Court of Salt Lake County, State of Utah, to obtain compensation for alleged consulting services in the sum of 5 million dollars. The complaint alleges that, while Director of UDRC, Mr. Anderson recognized the need for a LLW site in Utah; incorporated a consulting firm, Lavicka, Inc., for the express purpose of developing a plan for siting the facility; and entereti into a business arrangement to provide Mr. Sunnani with a license application and consulting services. Mr. Anderson alleges that Mr. Semnani, Presi6ent of Envirocare, agreed to pay a consulting fee of 100,000 dollars and an ongoing remuneration of 5 percent of all direct and indirect revenues that Mr. Semnani would realize from such a facility, if the site were successful. The complaint contends that Mr. Semnani owes Mr.
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2 .in October 1996 Mr. Semnani filed a counterciaim in the court, denying j n Mr. Anderson's claim and alleging that, in fact, Mr. Anderson used his :
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- position as the Director of UDRC to extort money in the sum of.600,000 l
! dollars. Mr. Sennani contends that all the money he paid was based on the belief that if he did not pay, Mr. Anderson would use his official position' and capacity as an officer and employee of the State of Utah to deny Mr. ,
[ Semnant fair consideration,~. review, hearing, and determination on his license
. application and, thereby, cause the license not to be granted, or, if
- Envirocare was granted a-license, Nr. Anderson would u
- ,a his position to i i
- subject the facility to unfair and biased oversight and supervision of the
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4- operation of.the facil.ity under the license. ~ As a result of these ;
. allegations, the Utah Attorney General's office is investigating the ,
relationship between Mr. Seanant'and Mr. Anderson. -
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4 The NROC petition is based on the events described above. The NRC has evaluated'the NROC's requests and found no basis to take the requested i
. actions.
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. As an initial matter, NdDC requests' that the NRC immediately revoke the
- NRC-Ile.(2) byproduct material iteense under whlen Envirocare is currently
. permitted to accept uranium mill; tailings for disposal. In addition, NROC [
4 also asks that'the NRC immediately revoke any other NRC license, or agreement
- state license, if such license exists, held by Envirocare, Khusrow Semnani, or 6
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any entity controlled or managed by Khosrow Semnani, The NRC's Enforcement Policy describes the various enforcement sanctions l 4 !
t available to the Commission once it determines that-a violation of its
. requirements has' occurred. In accordance with the guidance in Section VI.C.3.
j_ of the Enforcement Policy.. Revocation Orders may be used: (a) when a licensee l is unable or unwilling to comply with NRC requirements; (b) when a licensee! !
1 refuses to correct a violation;-(c) when a licensee does not respond to a _
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-Notice of Violation where a response wts required; (d) when a licensee refuses i to pay an.applicatie fee under the Commission's regulations; or-(e) ~ for any :
other reann for which revocation is authorized under Section 186 of the [
! Atorulc Energy Act (e.g., any condition that would warrant refusal of a license-i ;
on an original application). Pursuant to 10 CFR 2.202(a)(5), the Commission j may. issue an immediately effective order to modify, suspend, ~ or revoke a
! license if'the Commission finds that the public health, safety. or interest so !
h , requires or that the violation or conduct causing the violation was willful, i s .
The Commission's regulations recognize that a licensee should be afforded -
under usual circumstances'a prior opportunity to.be heart, before the agency suspends- a license or takes other enforcement action, but that extraordinary
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circumstances.nay warrant summary action prior to hearing. See Advanced Medical Systems,_Inc. (One Factory Row, Geneva, Ohio 44041), CLI-94-6, 39 NRC_ ,
285.299-(1994).
- In this case the NROC has not provided the NRC with' specific information' establishing that a violation of NRC requirements has occurred, nor providd the NRC with any other information th n would provide a basis for immediate 7
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. suspension of the Envirocare license. As NRDC notes in its request, the Utah 1
State Attorney General has initiated a criminal investigation into the matter l of the relationship between Mr. Anderson and Mr. Semnant. Absent specific ;
l Information supporting the existence of such extraordinary circumstances as (
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would warrant such action NRC believes-that it would be premature to initiate ,
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i immediate action pending completion of this investigation. _We-rerognize that i>
J p this matter involves potential issues of integrity, which, if proven, may- ,
! raise questions as to whether the NRC should have the requisite reasonable j assurance that Envirocare will comply with Commission requirements.- NRC i intends to follow the' investigation of the State Attorney General closely. If i
. NRC receives informativ,i of public health and safety concerns during the !
) investigation or on its completion, or receives such information from other-sources,. including NRC's ongoing Agreement State' oversight activities, it will evaluate that information-and take such appropriate action at that time as may
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be warranted.
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F Furthermore, the NRC. staff has reviewed the bases for its. licensing i -
actions involving Envirocare, and confirmed that NRC did not rely on technical
- evaluations performed by'the State to reach a decision regarding the i ;
evaluation of Envirocare's lle.(2) byproduct material license. The staff i
- conducted an independent technical evaluation of Envirocare's-license - o
[ ! application and subsequent amendment requests, and concluded that Envirocare-hadl adequately demonstrated compliance with all applicable health and safety l standards and regulations. In addition, as noted above, NRC inspections of a
. Envirocare have not revealed significant violations that would warrant immediate-action.
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4 review of.the technical basis for its issuance of the license and subsequent amendments found no evidence of the existence of any substantial health or safety issue that would justify the actions requested by the NRDC. NRC will monitor the investigations and actions being conducted by the State of Utah.
If NRC receives.any specific information that there is a public heLith or safety concern as a result of these actions or from any other source,
! Including the NRC ongoing Agreement State oversight activities, NRC will i evaluate that-information and take such action as-it deems is warranted at that time.
Dated at Ro:kville, Maryland this i day of February 1997.
FOR THE NUCLEAR REGULATORY COMMISSION
.ll Dus Carl J. Pap ello,~0irector Office of-Nuclear Material Safety and Safeguards 11
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(7590-01) i U. S. NUCLEAR REGULATORY COMMISSION NATURAL RESOURCES DEFENSE COUNCIL RECEIPT OF PETITION AND ISSUANCE OF A DIRECTOR'S DECISION UNDER 10 CFR 2.206 Notice is hereby given that by Petition dated January 8, 1997, Thomas B. Cochran, on behalf of Natural Resources Defense Counc'il (NRDC),-requested that the Nuclear Regulatory Commission (Commission) take immediate action with regard to Envirocare of Utah, Inc.
Specifically, the Petition requested NRC to take the following actions:
- 1) Immediately revoke the license or licensen, or cause the state of Utah to revoke its agreement state license or licenses, under which.Envirocare is currently permitted to accept low-level radioactive waste and mixed waste for permanent disposal.
- 2) Immediately revoke-the NRC 11e.(2) byproduct material .1.icense under which Envirocare is currently permitted to accept uranium mill tailings for disposal.
- 3) Immediately revoke any other NRC license, or I agreement state license, if such license exists, held l
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by Envirocare, Khosrow Semnani, or any entity controlled or managed by Khosrow Semnani.
- 4) Prohibit the future issuances of any license by the i
NRC, the State of Utah, or other NRC agreement state, j to Khosrow Semnani or any company or entity which he owns, controis, manages, or (with which he) has a :
significant affiliation or relationship. i
- 5) Suspend the agreement with the state of Utah under l
which regulatory authority has been transferred from l the NRC to the Utah's Bureau-of Radiation (Division of >
Radiation control), until the State of Utah can demonstrate that it can operate the Bureau of Radiation .
(Division of Radiation Control)_in a lawful manner, and without the participation of licensees, or employees of licensees, in Bureau of Radiation-(Division of Radiation Control) oversight roles.
As a basis for the request, the Petitioner asserts that on
- ' December 28, 1996, an article in The Salt Lake Tribune reported
.that between 1987 and 1995 Mr. Semnani made secret cash payments i
to Mr. Larry F. Anderson, who served as Director of_the Utah l
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Division of Radiation Control from 1983 until 1993. The article also reported that the Utah Attorney General's office has initiatad a criminal investigation into the matter.
The NRC response to the PetJtioner's request regarding the Agreement-state program is provided in a "NRC Staff Evaluation of Natural Resources Defense councli Roquest to suspend section 274 Agreement With1The state of Utah." The other issues raised in the Petition-have been evaluated by the Director of the office of Nuclear Naterial Safety and seteguards. After review of the Petition, the Director has >.snied the Petitioner's requests.
The Director's Decision concluded that no substantial health and safety Issues have been raised regarding Envirocare that' would require initiation of the immediate action requested by the NRDC. The NIux: has not provided.any information in support of.
'its request of.which the NRC was not already aware. Moreover, NRC inspections of the Envirocare. facility have not revealed the existence of extraordinary circumstances that would warrant
- immediate suspension of the Envirocare license. In addition, the staff's-review of the technical basis for its issuance of the license and subsequent amendments'found no evidence of the y existence of any substantial health or safety. issue that would 1
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justify the actions requested by the NRDC. However, NRC Will monitor the investigations and actions being conducted by the State of Utah. If NRC receives any specific information that there la a public health or safety concern as a result of these actions or from any other source, including the NRC ongoing Agreement State ,
oversight activities, NRC will evaluate that information and take such action as it deems is warranted at that time. ,
, The complete " Director's Decision under 10 C.F.R. S 2.206" (DD-97-02) is available for public inspection in the Commission's Public Document Room located at 2120 L Street, N.W., Washington,.
D.C. 20555. The Director's Decision is also available on the NRC Electronic Bulletin Board at (800) 952-9676.
A copy of.this Decision will be filed with the Secretary for the Commission's review, in accordance with 10 CFR 2.206.- As provided by. this regulation, the Decision will constitute the final e action of the-Commission 25 days after the date of issuance of the Decision unless the commission on its own motion' institutes a review of the Decision within thnt time.
Dated at Rockville, Maryland this 7 day of February 1997.
FOR THE NUCLEAR REGULATORY COMMISSION det ~ I[(lJC st4('-
4 Carl J.'Pape iallo, Director Office of Nuclear Material Safety and Safeguards l 4 l
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.....O..O January 13,1994 Mr. James Taylor VIA EXPRESS MAIL Executive Director for Operations U.S. Nuclear Regulatory Cornmission Washington, D.C. 20555 Re: In the Matter of Umesco Minerals Corpora.' ion Source Materials License No SUA 1358 Docket No. 40 8681
Dear Mr. Taylor:
Please find enclosed Erwirocare of Utah, Inc.'s Request for an Informal Hearing and a Request for a Proceeding to Modify, Suspend, or Revoke Materials Lit z.nse Amendment to be filed in the above captioned matter.
If you have any questions or comments, please do not hesitate to contact me.
Very truly yours,
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Thomas W. Clawson Enclosure cc: H. Michael Keller, Esq.
Khosrow Semnani informtion in this racord was ddet0d
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BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION
. IN THE MATTER OF UMETCO )
MINERALS CORPORATION ) REQUEST FOR AN INFORMAL
) HEARING AND A REQUEST FOR (sot *RCE MATERIALS LICENSE ) A PROCEEDING TO MODIFY, NO. SUA 1358) ) SUSPEND, OR REVOKE
) MATERIALS LICENSE DOCKET NO. .t0 8681 ) AMENDMENT
)
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ENVIROCARE OF UTAH, INC. ("Envirocare). by and through its undersigned anorneys. hereby requests that the Nuclear Regulatory Commission ("NRC") hold an informal hearing in the above referenced matter concerning the August 2,1993 NRC staff approval of an amendment to Umetco Minerals Corporation's ("Umetco") Source Materials License No. SUA-
, 1358, which covers Umetco's White Mesa Mill located near Blanding, Utah. Envirocare's l
Request for an Informal Hearing is filed herein pursuant to 10 C.F.R. f 2.1205.
[ Pursuant to 10 C.F.R. Q 2.206, Envirocare also requests that the NRC institute a l
proceeding to modify, suspend or, revoke Umetco's source materials license, as amended by the NRC staff on August 2,1993, pending the preparation of either an environmental assessment pursuant to the National Environmental Policy Act of 1969 ("NEPA") or an environmental report under 10 C.F.R 6 51.60, and while a determination is made whether the amended license l
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I complies with controlling NRC rules and with the st" a promulgated by the Environmental Protection Agency (the " EPA"), as required under 421 9.C.A. { 2114(a)(2).
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' 1. REOUEST FOR AN INFORMAL HEARING '
A. Enviroeate's Areas of Concern are Germane to the Subiect Matter of the Amendment Pr*~Aine. _
Envirocare has significant questions regarding the August 2,1993 approvai of the amendment to Umetco's source materials license for the White Mesa Mill by NRC's Region IV Uranium Recosery Field Of0cc located in Denver, Colorado (the " Field Office"). The NRC's own regulations, speci6cally at Appendix A of 10 C.F.R. Part 40, hase been ignored. A limited, but by no means exclusive, list of significant questions is as follows:
- 1. The license amendment, which has the effect of creating a new commercial 4
disposal facility, was granted without public notice, without opportunity for public comment, and without any meaningful or significant environmental review-
- 2. It is unclear whether the Field OJice has complied with 42 U.S.C.A. l 2114 and conditioned the arnended license to require that the byproduct materials subject to the
- license amendment will be disposed of in compliance with the current general environmental standards promulgated by the EPA ttnder 42 U.S.C.A. { 2022. and found at 40 C.F.R. Part 192,
- and in compliance with the current standards of 10 C.F.R. Part 40.
- 3. There have been no meaningful or significant analyses to support a conclusion that the activities authorized by the amended license will not have a significant impact on the human environment. The August 2,1993 documentation supporting the Field Office's 2-
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approval of the amended license baldly states that authorizing the disposal of byproduct material at the Umeteo facility will not result in significant impacts to the environment or the public health and safety. There is no reference to, or tiering from, previous enviromental studies or documentation. The Field Office's conclusions are without factual support. Apparently, there have not even been order-of. magnitude calculations.
- 4. The amended license contains no limits on radioisotope identity, concemra:3on. or total activity, and contains no conditions on waste packaging and the physical forms of wastes to bt received.
- 5. The amended license falls to adequately address the potential of significant impacts on the human environment if a spill of ion exchange rcsins, pond sludge, or other radioactive materials occurs,
- 6. The amended license requires no sampling or on. site verification of the character of the material as received at the disposal site, and thus, provides no safeguard against shipment of materials other than byproducts. Further, there have been no analyses of waste characteristics of the materials to be disposed of at the White Mesa Mill facility and the impact of those characteristics on the environment. Such wastes are not necessarily chemically, physically, or radiologically the same as mill tailings for which the Umeteo holding ponds were designed. The White Mesa Mill tailings holding ponds were not designed as disposal cells, their present design does not meet the requirements of the NRC's own regulations at 10 C.F.R. Part 40, Appendix A, and will not provide necessary early waming of cell liner leakage.
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- 7. The potential impacts and risks to the human environment of the' l
transportation of the radioactive materials contemplated by the amended license are nowhere adequately or meaningfully addressed. While transportation vehicles are required to be surveyed prior to leaving White Mesa, the amended license does not establish release levels that must be
- attained. The amended license also lacks an adequate monitoring scheme to assure against public ,
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- exposure during transportation of' waste to the site.
- 8. The amended license falls to ensure stability of the waste pile. Single pass
- construction equipment' compaction is rarely, if ever, suf0cient to ensure adequate compaction.
Moreover, there is no limitation on the size of non soil equipment which can be disposed of at r
Umetco's facility, and no specine requirement that disposed debris be sectioned and smashed so that it is smaller than a maximum size.
Envirocare believes the Field Office seriously overstepped and possibly abused its authority when it authorized the significant amendment to U.metco's licenw so as to allow disposal of substantial quantities of off site byproduct material without a detailed review and ' analysis of potential environmental impacts, and, possibly, without requiring Umetco's -
' facility to conform to applicable EPA and NRC standards. The amended license is significant in its scope and nature,-it serves to create a new .mmercial disposal facility that appears to be
. operating under possibly out dated " grandfathered" environmental and engineering standards, and Envirocare repeats that a hearing should be conducted to publicly address these important human health 'and environmental' questions.
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- I B. Envirocare Meets the Judicial Standuds for Standine Before the NRC.- :I Envirocare is the holder of Byproduct Material License No. SMC-1559, which i authorizes the receipt, storage, and disposal of lle(2) byproduct material at a site near Clive, f
- Utah. - (Sec 58 Fed. Reg. 62,690 (1993)). As a byproducts materials licenwe, Envirocare is subject to regulation and supervision by the NRC. Umstco's White Mesa Mill facility is also
. subject to the regulation and supersision by the NRC as well as the Field Office's regulation, ,
because it is located in Utah. which is not an Agreement State with regard to byproduct facilities.
Both facilities are licensed to rece;ve and dispose of off site byproduct materials generated by third parties, and, under the AEA. both- facilities are required to confonn Lto identical environmer.tal standards. However, by approving the amended license without a meaningful
- environmental analysis and, possibly, without requiring Umetco's facility to conform to applicable l ' EPA and NRC environmental and engineering standards, the Field Office has inconsistently and -
- possibly unfairly applied the environmental and engineering standards to the two disposal' ;
- . facilities, i o
For example, the NRC has required Envirocare to invest considerable time and
- resources to ensure that its operations are in compliance with all applicable federal statutes and -
regulations. Before obtaining NRC approval ofits application for a byproduct materials license, .
Envirocare was subjected to approximately four years of regulatory review by the NRC and its-staff, including the preparation of an exhaustive Environmental Impact Statement ("EIS"). The :
EIS analyzed - the expected impact of Envirocare.'s proposed disposal operations on the-en ironment near its Clive. Utah disposal facility. In contrast, despite the fact the effect of the N.
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4 amended license is to transform Umetco's uranium mill site and disposal facility for its own byproduct material into a new "for profit" commercial facility, the Field Office approved the i August 2,1993 amendment to Umetco's source materials lic4nse without requiring significant or meaningful environmental analysis or documentation. :
The amended license authorius Umetco to dispose of an essentially unlimited i ~ amount of lle(2) byproduct material generated at licensed in situ leach facilities at its White 2
Mesa Mill facility. The only limitation imposed by the amended license to the volume of byproduct material that can be disposed of at Umetco's facility is that no more than 10,000 cubic yards of b> product. material per year can come from a single source. The amended license does not limit the number of single sources. In fact, the amended license si.mply requirts Umeteo to contact the NRC when it has placed 600,000 tons of material in the authorind disposal cell.
Thus, the amended license essentially creates a new unlimited commercial byproduct materials disposal facility in Utah that is in direct competition with Envirocare's facility without the ;
. preparation of an environmental assessment while,in contrast, Envirocare was required to prepare an exhaustive EIS before its byproduct disposal facility was approved. An EIS was apparently
- prepared in .1979 to support Umetco's original license, which allowed it to dispose of it: own byproduct material. Apparently relying on this early EIS, prepared for a wholly different 1
purpose, the NRC now plans to allow Umeteo to become a commercial disposal facility that does not have to comply with current environmental protection standards. Umeteo can apparently, to-
- a significant extent, operate this new commercial disposal facility under the standards applied at
. the time the original inhouse byproduct disposal license was issued.
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Envirocare's interests are directly affected when the NRC inconsistently applies identical environmental standards and regulations to the Envirocare and Umeteo facilities by requiring Envirocate to conform its operations to more stringent envirorrnental standards than le required of Umetco's operations. Moreover, Envirocare's interests also may be significantly !
affected by the Field Office's actions, because the. failure to apply identical environmental standards to the Envirocare arid Umeteo facilities provides Umeteo with a significant competitive
' advantage and places Envirocare at an economic disadvantage. Therefore, Envirocare has a "real stake"in the outcome of the proceeding, comes within the " zone ofinterest" protected by Section i i
189(a) of the Atomic Energy Act ("AEA") ard Envirocare meets the judicial standards for standing in NRC proceedings. (42 U.S.C.A. ( 2239(a)(Supp.1993).'
C. Envirocare's Reauest for an Informal Hearine is Timelv.
In late 1993. Envirocare became aware that the Field Office had in the late summer or earl,s fall of 1993. approved a Urnetco request to amend its source mmrial license.
On December 16.1993, pursuant to applicable regulations. Envirocare sent a letter to the Field -
Office requesting additional information about the nature and e.xtent of the amendment and copies of pertinent documents including any environmental assessment or environmental review tha' was conducted by the agency to support the NRC's authorization. (See the copy of the December 16, 1993 letter from Charles Judd to the NRC attached hereto and incorporated herein as Exhibit "A").
'Sec Umrtco Mmcrals Corporation. ASLBP No. 92 666-On MLA.1992 WL 203817. at '3 (N.R.C. Aug. 5.
1992). Portland General Elterric. CLi 76 27. 4 NRC 610. 61213 (1976).
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On December 27,1993 the Field Office replied to Envirocare's Decetabe 15,1993 letter, and confirmed that the agency had approved an amendment to Umetco's source materials license. The Field Office also indicated that, if Envirocare wanted to review the requested relevant documents, Envirocare would have to travel to the Field Office in Denver, Colorado, and conduct its own review of the docket file. (See the copy of the December 27,1993 letter from the Field Office to Charles Judd attached hereto and incorporated herein as Exhibit "B"). To date. Envirocare has been unable to travel to Denver and review the docket file in this matter.
Mindful of the applicable regulations at 10 C.F.R. ( 2.1205(c)(2), Envirocare is hereby requesting an informal hearing to preserve its right to request an informal heanng under Section 189a of the 4
AEA.
- 11. REOl'EST FOR PROCEEDING TO MODIFY. SUSPEND. OB 4
REVOh*E l'METCO'S sol'RCE M ATERIALS LICENSE AMENDMENT PENDING MEANINGFt'L ENYlRONMENTAL EXAMINATION. ANALYSIS.
AND DOCUMENTATION in addition to Envirocare's Request for an Informal Hearing, Envirocare, pursuant to 10 C.F.R. f 2.206. requests that the NRC institute proceedings to modify, suspend, or revoke Umetco's source materials license amendment that authorizes the disposal of off site byproduct material at the White Mesa Mill facility, pending a thorough and meaningful environmental
. examination an:1 analysis of the obvious potential significant impacts of the amended license, together with the preparation of required and necessary environmental documentation, and a determination whether, pursuant to 42 U.S.C.A. { 2114(a)(2), the amended license complies with w r,u ,
I, l e current NRC standards and requires Umetco's facility to conform with the environmental !
standards promulgated by the EPA under the AEA.
The White Mess Mill facility was designed as a uranium mill site and not as a for profit commercial disposal facility for a variety of offsite generated in situ waste Umetco's "in- !
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. house" disposal operations were approved under standards now superceded. However appropriate 4 it may be to permit an existing facility to continue operations in accordance with the standards L
in existence at the time of original licensing, expanded operations particularly the creation of a
, _ "for profit" commercial disposal operation for off site wastes should be reviewed under current j- rules and_ standards. Yet, without any meaningful or current environmental analysis, the NRC 3
3-has approved a plan convening the White Mesa Mill facility into a major commercial byproduct '
materials disposal facility. :Given the reality that the Field Office has authorized Utmetco to . "
begin operation of a new commerciel disposal facility, the Field Office's decision not to prepare i-an environmental assessment, based on a " categorical exclusion" determination violates the spirit, intent, and letter of NEPA. Because the Field Office has not prepared the necessary ,
environmental analysis to support its conclusion that the action will not have a significant impact on thd sn environment, the Field Office violated NEPA and the NRC's own environmental 1
- regulatioa . In addition, it is unclear whether the amended license requires Umetco's White Mesa Mill facility to conform with current applicable NRC and EPA environmental and engineering standards as required by the AEA, Umetco's amended license should be modified, suspended,
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. or revoked, because the operation of a facility under the terms of a license which violates the
- AEA also violates tha' A:t. The facts in this matter clearly establish the basis for a proceeding ,
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to modify, suspend,'or revoke Umetco's source materials license amendment pending thorough q meaningful environmental analysis . and the preparation of supporting - environmental-r documentation, and while a determination is made whether the amended license complies with cunent NRC and EPA standards.
- . n cursory examination of the facts reveals that the Field Office's decision not to require the type of environmental review contemp;nted by NEPA and .the NRC's own regulations -
'is unsupponable. Umetco, relying on an environmentally suspect amended license can now-transport thousands of cubic yards of radioactive material across the nation's highways and 4
-dispose 'of those radioactive materials at a facility which was never designed-as an offsite p ,
byproduct disposal facility. Such a plan clearly affects the human environment. Moreover, without a meaningful environmental review, it is unclear whether the plan can conform to EPAL environmental standards. as is required by the AEA. Whether the health and environmental
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impacts of- the amended license are significant can only be determined after adequate environmental examination; analysis, and documentation. The NRC should require that an environmental assessment be prepared, or that Umetco prepare an environmental report as required by 10 C.F.R. { 51.60(b)(2), and that a determination be made whether the amended.
license requires the Umetco disposal facility to conform with applicable EPA environmental stsndards.
Therefore, based on thc foregoing, the NRC should initiate a proceeding to modify, revoke, or suspend Umetco's source materials license, as amended on August 2,1993,luntil an environmental assessment under NEPA,'or an environmental report under 10 C.F.R. ( 51.60, is -
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l completed, and a determination is made whether the amended license requires the Umeteo facility to conform with the applicable EPA mandards.
DATED this - Ikof January,1994.
VAN COTT, BAGLEY, CORNWALL & McCAATHY
- By: h -
H. Michael Keller -
Matthew F. McNulty, III-Thomas W. Clawson Attorneys for Petitioner 50 South Maia Street, Suite 1600 Salt Lake City, Utah 84144 Telephone (801) 532*3333 i
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l CERTIFICATE OF SERVICE !
I hereby certify that I caused a true and correct copy of the within and foregoing REQUEST FOR AN INFORMAL HEARING AND A REQUEST FOR A PROCEEDING TO MODIFY, SUSPEND, OR REVOKE MATERIALS LICENSE AMENDMENT, to be expres mailed, return receipt requested, postage prepaid, this 13 day of January,1994, to the following.
Umeteo Minerals _ Corporation White Mesa Mill Attn: Scott L. Schierman P.O. Box 669 Blanding. Utah 84511 1
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