[Federal Register Volume 60, Number 22 (Thursday, February 2, 1995)]
[Notices]
[Pages 6569-6574]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2578]



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[[Page 6570]]



NUCLEAR REGULATORY COMMISSION

State of Utah; Agreement Pursuant to Section 274 of the Atomic 
Energy Act, as Amended; Issuance of Director's Decision Under 10 CFR 
2.206

    Notice is hereby given that the Director, Office of State Programs, 
has issued a decision concerning a Petition dated September 21, 1992, 
submitted by US Ecology, Inc. regarding the State of Utah Agreement 
State program. The Petition requested that the U.S. Nuclear Regulatory 
Commission (NRC) revoke or suspend the State of Utah's Agreement State 
program for failure to require Federal or State land ownership at the 
Envirocare of Utah, Inc. low-level radioactive waste (LLRW) disposal 
facility. Petitioner alleged that: Under both Utah's Agreement State 
program and the Federal LLRW regulatory program, LLRW may not be 
disposed of on privately-owned land unless the State in which the site 
is located or the Federal government has formally expressed a 
willingness to accept title to the facility at site closure; the 
Envirocare site is located on privately-owned land; and neither Utah 
nor the U.S. Department of Energy has agreed to or expressed any 
willingness to accept title to the site.
    By letter dated October 26, 1992, the NRC staff acknowledged 
receipt of the Petition and notified the Petitioner that this matter 
would be considered pursuant to 10 CFR 2.206. The NRC staff published a 
notice of receipt of the Petition in the Federal Register on November 
13, 1992 (57 (FR 53941).
    The Director of the Office of State Programs has denied the 
Petition. The reasons for this decision are explained in a Director's 
Decision Under 10 CFR 2.206 (DD-95-01), which is available for public 
inspection in the Commission's Public Document Room located at 2120 L 
Street, NW. (Lower Level), Washington, DC 20555.
    A copy of this Decision will be filed with the Secretary of the 
Commission for the Commission's review in accordance with 10 CFR 2.206. 
As provided by this regulation, the Decision will constitute the final 
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 that time.

    Dated at Rockville, Maryland, this 26th day of January, 1995.

    For the Nuclear Regulatory Commission.
Richard L. Bangart,
Director, Office of State Programs.
I. Introduction

    By a letter dated September 21, 1992, and supplemented in a letter 
of December 8, 1992, to James M. Taylor, Executive Director for 
Operations of the U.S. Nuclear Regulatory Commission (NRC or 
Commission), US Ecology, Inc. (petitioner) filed a ``Petition of US 
Ecology, Inc. for Review and Suspension or Revocation of Utah's 
Agreement State Program for Failure to Require State or Federal Site 
Ownership at the Envirocare of Utah, Inc. Low-Level Radioactive Waste 
Facility.'' Petitioner alleges that--
    (1) Under both Utah's Agreement State program and the Federal low-
level radioactive waste (LLRW) regulatory program, LLRW may not be 
disposed of on privately owned land unless the State in which the site 
is located or the Federal Government has formally expressed a 
willingness to accept title to the facility at site closure;
    (2) The Envirocare site is located on privately owned land; and
    (3) Neither Utah nor the U.S. Department of Energy has agreed to or 
expressed any willingness to accept title to the site.
    The petitioner requested that in view of these allegations the NRC 
initiate appropriate proceedings, including relevant hearings, to 
suspend or revoke Utah's Agreement State status under Section 274j. of 
the Atomic Energy Act of 1954, as amended (AEA). The receipt of this 
Petition was noticed in the Federal Register on November 13, 1992 (57 
Fed. Reg. 53941). For the reasons set forth below, petitioner's request 
is denied.

II. Background

    Section 274 of the AEA, as amended, provides the statutory basis 
under which the NRC can relinquish portions of its regulatory authority 
to the States. This makes it possible for States to license and 
regulate the possession and use of byproduct material, source material, 
and special nuclear material in quantities not sufficient to form a 
critical mass.
    The mechanism for the transfer of NRC authority to a State to 
regulate the radiological health and safety aspects of nuclear 
materials is an agreement between the Governor of the State and the 
Commission. Before entering into such an agreement, the Governor is 
required to certify that the State has a regulatory program that is 
adequate to protect the public health and safety. In addition, the 
Commission, by statute, must perform an independent evaluation and make 
a finding that the State's radiation control program is compatible with 
the NRC's, complies with the applicable parts of Section 274 of the 
AEA, and is adequate to protect the public health and safety.
    The AEA was amended in 1978 to require, among other things, that 
the NRC periodically review Agreement State programs to determine the 
adequacy of the program to protect the public health and safety and 
compatibility with NRC's regulatory program. Section 274j. of the AEA 
provides that the NRC may suspend or terminate its agreement with a 
State if the Commission finds that such suspension or termination is 
necessary to protect the public health and safety. As mandated by the 
AEA, NRC conducts periodic, on site, in-depth reviews of each Agreement 
State program. The results of these reviews are documented in a report 
to the State. The report indicates whether the State's program is 
adequate to protect the public health and safety and also whether the 
program is compatible with NRC's regulatory program. (In some cases, 
the State is informed that the findings on adequacy and compatibility 
are being withheld pending further review by NRC and the resolution of 
outstanding issues.)
    The State of Utah originally became an Agreement State on April 1, 
1984. At that time, the State chose not to include authority for 
commercial LLRW disposal in the Agreement. However, on July 17, 1989, 
Governor Norman H. Bangerter of Utah requested that the Commission 
amend the Agreement to provide authority for Utah to regulate 
commercial LLRW disposal. As part of the amendment process, the 
Governor certified that the State had a program for control of 
radiation hazards with respect to LLRW disposal that is adequate to 
protect the public health and safety. The NRC conducted an independent 
review of this program and determined that the State met the 
requirements of Section 274 of the AEA and that the State's statutes, 
regulations, personnel, licensing, inspection and administrative 
procedures were compatible with those required by the Commission and 
were adequate to protect the public health and safety. The amendment to 
the Utah Agreement became effective on May 9, 1990. 55 FR 22113 (May 
31, 1990).
    Part of the State's program involved the adoption of regulations 
compatible with the NRC regulations for the licensing of land disposal 
of radioactive waste (10 CFR Part 61), including Sec. 61.59 
(Institutional requirements). Section 61.59 states:

    (a) Land ownership. Disposal of radioactive waste received from 
other persons may be permitted only on land owned in fee by the 
Federal or a State government.

    As part of its regulation of LLRW, Utah also adopted a provision 
similar to 

[[Page 6571]]
the exemption provision at 10 CFR 61.6, which states:

    The Commission may, upon application by any interested person, 
or upon its own initiative, grant any exemption from the 
requirements of the regulations in this part as it determines is 
authorized by law, will not endanger life or property or the common 
defense and security, and is otherwise in the public interest.

    In September 1990, Envirocare of Utah, Inc. (Envirocare) requested 
the State to amend its license to authorize receipt of LLRW for 
disposal. On March 21, 1991, Utah granted the request authorizing LLRW 
disposal. In granting this authorization, the State extended a 
previously-granted exemption from the State's land ownership 
requirements for Naturally Occurring Radioactive Material (NORM) and 
Naturally-Occurring and Accelerator-Produced Radioactive Material 
(NARM) disposal to LLRW disposal at the Envirocare facility. (NORM and 
NARM are outside the NRC's regulatory authority.) Utah issued the 
exemption pursuant to its regulations, which provide that the State may 
grant ``such exemptions or exceptions from the requirements of these 
regulations as it determines are authorized by law and will not result 
in undue hazard to public health and safety or property.''

    On September 21, 1992, US Ecology, Inc. filed this petition with 
the NRC requesting that the Commission revoke or suspend the Utah 
agreement program for regulating the commercial disposal of LLRW 
because of Utah's failure to require State or Federal government land 
ownership. The petitioner requested the NRC to review the adequacy and 
compatibility of Utah's Agreement State program in light of this 
failure and alleged that the State had not adequately justified the 
granting of an exemption from the land ownership requirement.\1\ In a 
letter of October 26, 1992 acknowledging receipt of the petition, Mr. 
Carlton Kammerer, Director, Office of State Programs, informed the 
petitioner that the NRC staff was in the process of reviewing the 
licensing action of Utah as it related to the granting of the exemption 
in the course of NRC's periodic review of the Utah Agreement State 
program pursuant to Section 274j. of the AEA. Furthermore, the NRC 
staff's review of the Utah program would of necessity address the 
issues raised in the US Ecology petition. As will be set forth in 
greater detail below, the NRC has determined that the State of Utah's 
rationale of exercising effective control of the waste disposal site 
without State or Federal ownership is not unreasonable and would not 
warrant revocation or suspension of the Utah agreement.

    \1\On December 8, 1992, the petitioner also submitted a 
supplemental legal analysis in support of the petition.
III. Discussion

    The NRC staff has examined the petitioner's claim in the original 
petition of September 21, 1992 and the supplement dated December 8, 
1992:

    Petitioner requests that the NRC begin proceedings to revoke or 
suspend Utah's Agreement State status under section 274 of the 
Atomic Energy Act because of alleged flaws in Utah actions on the 
licensing of Envirocare of Utah, Inc., to receive LLRW for disposal.

    Pursuant to Section 274 of the AEA, NRC relinquished its regulatory 
authority over the licensing of LLRW to Utah and therefore has no 
direct authority over licensing of LLRW facilities in Utah. However, 
NRC does have authority to terminate or suspend Utah's Agreement State 
program under Section 274j. of the AEA. Section 274j. states:

    The Commission, upon its own initiative after reasonable notice 
and opportunity for hearing to the State with which an agreement 
under subsection b. [of this section] has become effective, or upon 
request of the Governor of such State, may terminate or suspend all 
or part of its agreement with the State and reassert the licensing 
and regulatory authority vested in it under this Act, if the 
Commission finds that (1) Such termination or suspension is required 
to protect the public health and safety, or (2) the State has not 
complied with one or more of the requirements of this section. The 
Commission shall periodically review such agreements and actions 
taken by the States under the agreements to insure [sic] compliance 
with the provisions of this section.\2\

    \2\As required by this section, the NRC staff has conducted 
periodic reviews of the Utah Agreement State program since Utah 
became an Agreement State in 1984. The purpose of these periodic 
reviews is to determine the adequacy of the State's program to 
protect the public health and safety and the compatibility of the 
State's program with that of the NRC.

    Based upon these periodic reviews, or upon special reviews 
conducted for cause, the Commission must find that (1) Termination or 
suspension of a State's program is required to protect the public 
health and safety or (2) that the State has not complied with one or 
more requirements of Section 274 of the AEA (e.g., the requirement for 
the State program to be compatible with the NRC program).
    The revocation of Utah's Agreement State status, as requested by 
the petitioner, hinges on whether Utah's regulatory scheme of providing 
an exemption from State or Federal ownership of the site was compatible 
with NRC's regulatory requirements and whether Utah's action in 
granting the exemption provided for adequate protection of the public 
health and safety. The NRC regulations contain an exemption provision 
in 10 CFR 61.6 that allows the Commission to grant any exemption from 
the requirements in Part 61 provided that the exemption is authorized 
by law, will not endanger the public health and safety or the common 
defense and security and is otherwise in the public interest. The land 
ownership provision in Section 61.59 is subject to this exemption 
provision. Although NRC has not exercised its authority under the 
exemption provision in Part 61 as Utah has exercised, Utah's regulatory 
scheme contains an exemption provision similar to the NRC's. Although 
NRC has not granted (nor has any person requested) any similar 
exemption, it has not adopted any particular policy or practice 
precluding this that might be identified to the States as a matter of 
strict compatibility. In this regard, Utah's regulatory program is not 
incompatible with the NRC.
    The issue then becomes whether the exercise of the exemption 
provision poses a sufficient safety problem as to require the NRC to 
revoke or suspend Utah's Agreement State program. The reasons for the 
exemption Utah issued for LLRW originally were derived in part from the 
reasons for the exemption it had issued for NORM and NARM, which the 
NRC staff found not to be sufficient. Upon the NRC's request, Utah 
provided additional explanation of the reasons for the exemption with 
regard to LLRW (described below), and also imposed deed restrictions on 
Envirocare's title to the site, as explained below. Specifically, the 
State of Utah provided the following justifications for its concept of 
providing for a degree of State control of the disposal site that would 
be equivalent to the control provided by the requirement in the 
regulations for the disposal site to be located on State or Federal 
land:\3\

    \3\From a letter dated February 12, 1993 from Dianne R. Nielson, 
Ph.D., Executive Director, Utah Department of Environmental Quality, 
to Mr. Carlton Kammerer, Director, Office of State Programs, U.S. 
Nuclear Regulatory Commission.

    * Tooele County has zoned the area that the Envirocare site is 
in as heavy manufacturing-hazardous (MGH) designation. * * *
    * Because of the mixed waste licenses held by Envirocare, 
Envirocare has recorded in the public records of Tooele County an 

[[Page 6572]]
Affidavit which refers to and incorporates the land use restrictions of 
40 CFR 264.117(c) which controls post closure activities at the 
site.
    * Envirocare is required under License Condition 36 to provide 
``as built'' drawings every six months. Because of Envirocare's 
construction techniques, each generator's waste is segregated from 
other waste, and site records to be provided after closure will be 
detailed.
    * The transfer of site records is specifically directed by UAC 
R313-25-33, particularly subparagraph (4).
    * To be licensed, radioactive waste disposal facilities must 
meet siting criteria established in UAC R313-25-3, previously R447-
25-3.
    * Utah regulations require that after closure there be a 5-year 
post closure and maintenance period by the licensee until the site 
is transferred to the site owner for institutional control.
    * Utah's regulations require licensees to establish a financial 
surety in the form of a trust agreement which gives the State 
exclusive control of the trust fund. The State requires that 
``financial or surety arrangements shall remain in effect until the 
closure and stabilization program has been completed * * * and the 
license has been transferred.'' Until a transfer of the license 
occurs, the surety arrangement remains in effect and will continue 
to be reviewed to determine the amount necessary to protect public 
health, safety, and property.
    * The State and Envirocare entered into an Agreement 
Establishing Covenants and Restrictions which identifies the site 
and the purpose of the licensed operations at the site.

    The license ``Transfer and Termination'' sections of the State 
regulations indicate that the site operator will transfer and/or 
terminate its license and turn over the site to a governmental agency 
for the active institutional control period. The exemption in 
controversy here is an exemption from those sections of the 
regulations. Since Envirocare is the site owner and operator and no 
governmental agency is or has been authorized to take title to the 
site, transfer and termination of the Envirocare license would not 
occur prior to the active institutional control period. Therefore, 
Envirocare would remain responsible for the site under the license and 
the institutional control phase would be implemented by Envirocare.
    In order to determine the adequacy of the Utah regulatory framework 
for protecting the public health and safety, the NRC staff analyzed the 
control of the disposal site for the three major phases in the life of 
a low-level waste disposal site (operations, closure, and post-closure 
observation and maintenance; active institutional control; and passive 
institutional control). This analysis was conducted to determine which 
mechanisms, if properly constructed, could provide adequate control in 
lieu of Government ownership of the land. In addition, the NRC staff 
considered the special circumstances posed by the Envirocare site.

Operations, Closure, and Post-Closure Observation and Maintenance 
Period

    Envirocare has title to the land and, therefore, is responsible for 
all activities on the site. The licensee has provided a Trust Agreement 
with the State of Utah that provides funds for closure and the post-
closure period and the active institutional control period in the event 
the licensee is financially incapable of closing the site or abandons 
the site. The license limits the accumulation of undisposed waste to a 
specific amount that can be disposed of through the use of the trust 
funds.

One Hundred-Year Active Institutional Control Period

    The State proposed that it is exercising control and can continue 
to exercise control of the site in such a manner that land ownership is 
not necessary to protect the public health and safety from the material 
that is being disposed of at the site. In particular, the State points 
to its control of the trust fund that includes the money for the active 
institutional control period. If the site owner is not capable of 
conducting the activities required during the active control period, 
the State will carry out the activities by using the money in the trust 
fund. Under the control mechanisms, the State would not need to own the 
site to carry out these activities.

Passive Institutional Control Period

    The State proposed the use of deed annotation as a method of 
informing individuals who may wish to use the site in the future that 
the land was used for waste disposal and should not be disturbed.
    The staff found that the mechanism submitted by the State lacked 
specificity needed to implement the requisite degree of control because 
the land annotation did not provide sufficient restrictions on the 
future use of the site. As a result of this deficiency, the staff 
suggested a proposed ``restrictive covenant'' that the State of Utah 
could use to implement the requisite degree of control.
    In brief, the provisions of the restrictive covenant suggested by 
the NRC staff were in addition to any restrictions on the title already 
recorded in the Tooele County records, and, inter alia, proposed to 
restrict Envirocare and its successors and assigns with respect to the 
property as follows: (1) No excavation or construction, except as 
necessary to maintain the premises, shall be allowed after the LLRW is 
disposed of and the facility closed; (2) No uses of the property shall 
be made which may impair its integrity; (3) Any change in use of the 
property following closure of the facility shall require the prior 
written consent of the Utah Department of Environmental Quality; (4) 
Envirocare and its successors or assigns, shall erect and continuously 
maintain monuments and markers, approved by the Department, to warn of 
the presence of radioactive material at the site; (5) Envirocare shall 
not convey the property without the prior written approval of the 
Department, nor shall Envirocare consummate any conveyance of any 
interest in the property without adequate and complete provision for 
continued maintenance of the property; and (6) Any State or Federal 
governmental agency affected by any violations of these restrictive 
covenant may enforce them by legal action in the District Court for 
Tooele County. As the proposed restrictive covenant made clear, the 
State of Utah will have the power to control the ownership, use, and 
maintenance of the Envirocare property after closure of the facility to 
a degree equivalent to ownership of the site. Moreover, both Utah and 
the NRC, in particular, would have the right to enforce the covenant.
    The Commission, after careful consideration, came to the conclusion 
that the institutional controls, such as the proposed restrictive 
covenant, could be used in this case to achieve the same safety result 
as site ownership by State or Federal authorities. The Commission's 
decision was conveyed to the State in a June 28, 1993 letter from Mr. 
Kammerer to Dr. Nielson. The purpose of the Federal or State government 
land ownership requirement is to provide a higher degree of assurance 
that through State or Federal government ownership of the site, 
institutional control of the site will continue to exist for longer 
periods of time than under private ownership. Regarding the similarity 
between land ownership and a restrictive covenant, in each case there 
is an entity in existence to take action to remedy any on site 
difficulty. With land ownership, the State can take action with regard 
to its ownership of the land, and with a restrictive covenant, the 
State can take action to enforce the restrictive covenant. The State of 
Utah executed a restrictive covenant with the terms 

[[Page 6573]]
described above with Envirocare on June 29, 1993.
    In addition, the NRC is required by law to continue to review the 
Utah Agreement State program for adequacy and compatibility. If at any 
time in the future during these reviews the NRC determines that the 
public health and safety is not being protected, the Commission will 
begin proceedings for taking necessary action, including, if 
appropriate, the suspension or termination, of the Utah program.
    In summary, the requirement in 10 CFR 61.59(a) regarding land 
ownership specifies that disposal of radioactive waste received from 
others may only be permitted on land owned in fee by the Federal or a 
State government. The State of Utah issued an exemption from its State 
or Federal land ownership requirement pursuant to Utah's regulations, 
which provides that the State may grant ``such exemptions or exceptions 
from the requirements of these regulations as it determines are 
authorized by law and will not result in undue hazard to public health 
and safety or property.'' This Utah exemption provision is similar to 
the Commission's exemption in 10 CFR 61.6. One June 28, 1993, the 
Commission approved this approach as acceptable, with the proper 
implementing mechanisms put in place. On the day of the Commission's 
decision, the State was informed that the Commission decided that the 
State's rationale of exercising effective control of the waste disposal 
site without State or Federal land ownership was acceptable and was 
equivalent to the control that would be provided by State or Federal 
ownership. The letter to the State also attached a suggested 
restrictive covenant intended to provide sufficient restrictions on the 
future use of the site. On June 30, 1993, the State of Utah provided 
the NRC with a recorded copy of the executed restrictive covenant 
between Envirocare of Utah, Inc. and the Utah Department of 
Environmental Quality.
    A follow up review of State actions and documentation was performed 
by the NRC staff during a review visit of the Utah Agreement State 
program on August 30 through September 2, 1993. The question of control 
of the site after the period of post-closure observation and 
maintenance was addressed by the State's extension of the license term 
through the institutional control periods. The authorization to receive 
and dispose of waste will expire at closure of the disposal facility, 
but the responsibility of the licensee to maintain the site will 
continue through these control periods. As a result, the trust funds 
required for the license now and in the future will not be released to 
the licensee until the licensee has satisfied the license termination 
requirements. The amount of surety as of September 30, 1994 was 
approximately $4.1 million. The surety is reviewed and adjusted 
annually. The Commission expects that Utah will require an amount of 
funds necessary to ensure protection of the public health and safety 
through the active control period.
    An additional issue identified as part of the NRC staff review of 
this petition relates to liability for remediation and corrective 
measures in the event of an off site release of radioactive materials 
from the disposal facility. The NRC staff requested the State of Utah 
to identify actions that the State could take to identify and compel a 
responsible party to perform remediation and necessary corrective 
measures in the event that no licensee exists and significant off site 
releases occur. The State responded that it has the authority to 
identify and compel responsible parties to perform remediation and, in 
defined circumstances, the State may perform cleanups. Specific 
measures identified by the State were:\4\

    \4\From a letter dated September 6, 1994 from Dianne R. Nielson, 
Ph.D., Executive Director, Utah Department of Environmental Quality, 
to Mr. Richard L. Bangart, Director, Office of State Programs, U.S. 
Nuclear Regulatory Commission.

    *The Radiation Control Board has the authority to establish 
rules and issue orders to enforce laws and rules [Utah Code 
Annotated (UCA) Section 19-3-104(9)]. Additionally, the Executive 
Secretary of the Board is authorized to enforce rules through the 
issuance of orders [UCA Section 19-3-108(2)(c)(iii)].
    *To the extent that the release is of a ``hazardous substance 
(under CERCLA) or hazardous material'' as defined in UCA Section 19-
6-302, the Executive Director of the Department of Environmental 
Quality may issue an abatement order if there exists a direct and 
immediate threat to the public health or the environment and may use 
environmental mitigation fund monies established by the Utah 
legislature to investigate and abate the release (UCA Section 109-6-
309).
    *The Executive Director of the Department of Environmental 
Quality may issue mitigation orders where conditions exist which 
create a clear and present hazard to the public health or the 
environment and which requires immediate action [UCA Section 19-1-
202(2)(a)].
    *The Attorney General or the county attorney has authority to 
bring any civil or criminal action requested by the Executive 
Director of the Department of Environmental Quality or the Utah 
Radiation Control Board to abate a condition which exists in 
violation of or for enforcement of laws or standards, orders, and 
rules of the Department [UCA 19-1-204].
    *The Governor is authorized to respond to technological hazards 
which include radiation incidents under the Disaster Response and 
Recovery Act [UCA 63-5a-1 to 11].
IV. Special Considerations

    The Envirocare LLRW disposal facility (co-located with the NORM 
disposal facility) is located in Clive, Tooele County, Utah, 
approximately 85 miles west of Salt Lake City, Utah. This facility is 
located adjacent to: (1) The U.S. Department of Energy's (DOE) South 
Clive disposal cell containing uranium mill tailings from the former 
Vitro South Salt Lake facility that was cleaned-up and moved to this 
site pursuant to the Uranium Mill Tailings Radiation Control Act of 
1978; (2) an NRC-licensed facility operated by Envirocare to receive, 
store, and dispose of uranium and thorium byproduct material [as 
defined by Section 11e.(2) of the AEA, as amended]; and (3) Envirocare 
facility licensed under the State of Utah's authority for disposal of 
Resource Conservation and Recovery Act (RCRA) material as delegated by 
the U.S. Environmental Protection Agency (EPA) for those radioactive 
wastes which have been mixed with, or contain, hazardous material. 
These facilities are located within the Tooele County Hazardous Waste 
Zone, approximately 20 miles from any residents. On January 12, 1988, 
the Tooele County Commission established the West Desert Hazardous 
Industry Area, which limits the future uses of land in the vicinity of 
the site by prohibiting residential housing. The facilities are located 
in the extreme eastern margin of the Great Salt Lake Desert which is 
part of the Basin and Range Province of North America. The groundwater 
quality at these disposal sites is extremely poor due to a very low 
annual precipitation, high evaporation, low infiltration, and an 
abundance of evaporate materials in the near surface sediments in the 
Great Salt Lake Desert. According to EPA classifications, the two 
aquifers beneath the site are considered Class III since they both have 
a total dissolved solids content in excess of 10,000 mg/L. The NRC 
staff has concluded that the groundwater in the disposal site area is 
of a poor quality and is not suitable for most known uses without 
significant treatment.
    Under these circumstances, it cannot be said that the Utah 
regulatory program for the Envirocare site, including the control 
periods, surety provision, restrictive covenant, and Utah remedial 
action powers fails to provide adequate 

[[Page 6574]]
protection of the public health and safety. Moreover, the NRC's 
governmental site ownership provision is directed at assuring control 
over potential releases over very long periods of time (in excess of 
100 years), and the Utah program, especially the restrictive covenant 
and remedial action powers, should likewise achieve an adequate level 
of control. NRC staff recognizes that, under other circumstances, a 
State's ownership of a site as contrasted with private land ownership 
of the site might, in theory, carry with it some greater legal or 
``moral'' obligation by the State to take affirmative action to assure 
safety. However, given the nearby presence of the RCRA facility, the 
proximity of two other radioactive waste disposal activities under 
Federal land ownership requirements, and the remoteness of the site, 
the Commission does not believe private site ownership poses a 
sufficient real safety issue to warrant revocation or suspension of the 
Utah regulatory program.

V. Conclusion

    The NRC has carefully reviewed the issues raised by the petitioner 
in the staff's review of the Utah program. For the reasons discussed 
above, I find no need for taking such action. Rather, on the basis of 
the review efforts by the NRC staff, I concluded that the petitioner 
has not raised a sufficient issue of Utah's compliance with one or more 
requirements of Section 274 of the AEA or any substantial health and 
safety issues to warrant the action requested. Accordingly, the 
petitioner's request to suspend or revoke the Utah Agreement State 
program for failure to require State or Federal site ownership at the 
Envirocare of Utah, Inc. LLRW disposal site is denied.\5\ A copy of 
this decision will be placed in the Commission's Public Document Room, 
Gelman Building, 2120 L Street, NW, Washington, DC 20555. A copy of 
this decision will also be filed with the Secretary for the 
Commission's review as stated in 10 CFR 2.206(c) of the Commission's 
regulations. The decision will become the final action of the 
Commission twenty-five (25) days after issuance unless the Commission 
on its own motion institutes review of the decision within that time.

    \5\In a letter of July 8, 1993 to NRC Chairman Ivan Selin, the 
petitioner claimed that the Commission's decision of June 28, 1993 
denied the petitioner an opportunity for a hearing on its petition 
for the revocation of Utah's Agreement State status to argue the 
policy issues associated with the land ownership exemption. Neither 
the AEA nor the Commission's regulations provides for a hearing on 
the evaluation of an Agreement State program. The Commission's 
review of the Agreement State program incorporated a review of the 
issues raised in the petition.

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    Dated at Rockville, Maryland this 26th day of January, 1995.

    For the Nuclear Regulatory Commission.
Richard L. Bangart,
Director, Office of State Programs.
[FR Doc. 95-2578 Filed 2-1-95; 8:45 am]
BILLING CODE 7950-01-M