[Federal Register Volume 61, Number 136 (Monday, July 15, 1996)]
[Notices]
[Pages 36916-36918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17936]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 040-08724]
Issuance of Director's Decision Under 10 CFR 2.206
AGENCY: U.S. Nuclear Regulatory Commission.
ACTION: Notice of Issuance of Director's Decision Under 10 CFR 2.206.
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I. Introduction
Notice is hereby given that the Director, Office of Nuclear
Material Safety and Safeguards, has issued a decision concerning a
Petition dated January 6, 1989, submitted by Dr. Klaus R. Romer, on
behalf of McGean-Rohco, Inc.
By letter dated January 6, 1989, Dr. Klaus R. Romer, on behalf of
McGean-Rohco, Inc. (Petitioner or McGean), requested that the U.S.
Nuclear Regulatory Commission (NRC) take action pursuant to 10 CFR
2.206 with respect to Chemetron Corporation (Chemetron), an NRC
licensee. McGean requested that NRC exercise its enforcement powers to
compel Chemetron, at the time a subsidiary of Allegheny International,
Inc. (Allegheny), to immediately commence decontamination of its
facilities at 2910 Harvard Avenue, Cuyahoga Heights, Ohio, (the Harvard
Avenue site) under the terms agreed to by Allegheny in its Confirmation
of Commitment dated November 14, 1988. The Petitioner also requested
the NRC to impose sanctions upon Chemetron for its failure to carry out
the decontamination of the Harvard Avenue site. McGean alleged the
following bases for its requests:
(1) On November 14, 1988, Chemetron committed to begin
decontamination of the Harvard Avenue site immediately and complete the
job by March 17, 1989;
(2) The NRC had stated that the March completion deadline would be
relaxed only if Chemetron made a compelling showing of diligent efforts
to clean up the site and good cause;
(3) Chemetron's letter to the NRC of December 12, 1988, which
requests an extension of the deadline for good cause, fails to make a
compelling showing of good cause; and
(4) Chemetron has not made a good faith effort to decontaminate the
site.
On March 22, 1989, the Director of the Office of Nuclear Material
Safety and Safeguards, formally acknowledged receipt of the Petition
and informed Petitioner that its request was being treated pursuant to
10 CFR 2.206 of the NRC's regulations. A notice of the receipt of the
Petition was published in the Federal Register notice on March 28, 1989
(54 FR 12698). In the March 22, 1989, letter, the Director denied the
Petitioner's request for immediate relief because NRC considered that
Chemetron's actions demonstrated minimally sufficient progress towards
decontamination. However, the Director deferred a decision on the
remainder of the Petition.
II. Background
In 1965, pursuant to 10 CFR Part 40, the Atomic Energy Commission
issued Source Material License No. SUB-852 to Chemetron, which through
its McGean Unit of the Inorganic Chemical Division, manufactured
catalysts containing depleted uranium. These operations were carried
out between 1965 and 1972 in facilities located at the Harvard Avenue
site. By February 1972, manufacture of the catalysts had been
terminated, and in December 1973, the License was amended to authorize
storage only for the remaining depleted uranium. No activities
involving source material, other than decontamination, have been
conducted at the site since the termination of the catalyst production
by Chemetron in 1972.
[[Page 36917]]
In 1975, the McGean Chemical Company, Inc., the predecessor to
McGean-Rohco, Inc., purchased the Harvard Avenue site. The Chemetron
Corporation, however, retained the License and responsibility for the
depleted uranium remaining at the facility. In late 1977, the Licensee
was acquired by Allegheny-Ludlum Industries. In 1979, the Licensee
obtained a new NRC License, No. SUB-1357, to authorize the possession
of depleted uranium contamination at the Harvard Avenue site and its
remediation. License SUB-1357 superseded SUB-852. The License was last
renewed, pursuant to 10 CFR 40.42(a), on January 10, 1990, and is
continuing in effect.
Remediation activities at the Harvard Avenue site under License
SUB-1357 began in 1979, with the expectation that the project would be
completed in about six months. However, those activities were not
completed within the term of the License. The NRC renewed the License
five times between 1979 and 1984. As renewed on July 18, 1984, the
Licensee included a condition requiring, within one year, the
completion of decontamination, a final radiological survey, and a
request for license termination. But again, these activities were not
completed within the required timeframe.
From 1985 through 1989, the NRC continued to take actions intended
to lead to decontamination of the Harvard Avenue site. These actions
included (1) amending the License on October 1, 1987, to require
completion of decontamination by October 1, 1988; (2) issuing a Demand
for Information on June 13, 1988; and (3) requesting a Confirmation of
Commitment to complete the Harvard Avenue decontamination by March 17,
1989. While Chemetron performed some survey and decontamination work
during this time, Chemetron did not then complete decontamination of
the Harvard Avenue site. Chemetron's parent, Allegheny International,
entered bankruptcy on February 20, 1988, and Chemetron then stopped
spending money for decontamination until the Bankruptcy Court
authorized such expenditures on March 9, 1989. This was one of several
factors Chemetron claimed prevented completion of decontamination
according to the required schedules. Some of Chemetron's claimed
reasons for failing to meet the schedules had merit, but some did not.
Shortly after the Bankruptcy Court's authorization, Chemetron
resumed decontamination activities at the Harvard Avenue site.
Chemetron soon discovered, however, that it had significantly
underestimated the amount of contamination at the site due to an
inadequate characterization of that contamination. From 1989 to 1992,
including Allegheny's emergence from bankruptcy in 1990 (Allegheny was
reorganized as Sunbeam/Oster Company, Inc. (Sunbeam)), the NRC sought
Chemetron's commitment to characterize and remediate the Harvard Avenue
site. To that end, concurrent with the NRC's approval of a transfer of
control over the License to Sunbeam through the reorganization, the NRC
sought Chemetron's commitment to complete a revised remediation plan
for the Harvard Avenue site, based on adequate site characterization.
On August 31, 1990, Chemetron proposed to complete a revised
remediation plan by March 1, 1991, and the NRC approved this schedule
and the transfer of control of the License on September 11, 1990.
Chemetron, however, again failed to meet its schedule, and failed
to meet subsequent revised schedules showing completion of site
characterization by March 1, 1991, and completion of a revised
remediation plan by August 16, 1991. While some characterization data
had been obtained, the site characterization report submitted on July
28, 1991, was inadequate, and, consequently, Chemetron's August 16,
1991, remediation plan was also inadequate. Accordingly, the NRC sought
to compel Chemetron to characterize the site. As a result, on May 5,
1992, the NRC and Chemetron entered into a Consent Order that
established June 15, 1992, as the submittal date for the Final Site
Characterization Report for the Harvard Avenue site. Chemetron met this
date, and on January 8, 1993, the NRC approved the Final Site
Characterization Report as an acceptable basis for developing a
remediation plan.
After NRC acceptance of the Final Site Characterization Report,
Chemetron, by License Condition, established October 1, 1993, as the
submittal date for the remediation plan. Chemetron submitted a
remediation plan on this date that was incomplete. Accordingly, the NRC
issued a Confirmatory Order to Chemetron on October 26, 1993, which
required, inter alia, that all required portions of the remediation
plan be submitted by November 15, 1993. Chemetron complied with this
order.
On February 28, 1995, Chemetron submitted Revision 1 to its site
remediation plan, which incorporated modifications as requested by the
NRC. On June 7, 1996, the NRC approved Chemetron's revised remediation
plan for the Harvard Avenue site and amended the License to authorize
remediation of the site in accordance with the plan.
III. Discussion
Since the Petition was submitted to NRC, NRC staff and inspectors
have made numerous site visits and inspections of the Harvard Avenue
site. The inspections included routine safety inspections, which
involved observing the status of site physical security provisions,
verifying compliance with 10 CFR Part 20 radiation protection
requirements, and observing the condition of tarpaulins securing soil
piles. In April 1992, NRC inspectors installed air sampling devices and
thermoluminescent detectors to measure radioactivity levels at the
Harvard Avenue site and verify Chemetron measurements. These monitoring
efforts were discontinued in 1993 because the results indicated
radioactivity was at background levels consistent with the continuing
Chemetron monitoring results. The NRC inspections, site visits, and
monitoring have ensured that public health and safety have been
adequately protected.
As set forth above, Chemetron made progress (except for some time
while in bankruptcy) towards remediating the Harvard Avenue site, but
this progress was very slow. One major impediment to remediating the
site was the lack of an adequate site characterization. The NRC's
frustration with the slow progress towards adequate characterization of
the site resulted in the NRC's entering into the Consent Order of May
5, 1992, which compelled Chemetron to submit an adequate Final Site
Characterization Report on June 15, 1992. The characterization report
was acceptable because it provided information on: (1) depleted uranium
concentration levels not only on the surface, but also at depth; (2)
depleted uranium concentratioN levels in soil piles; and (3)
groundwater monitoring results. The NRC then required Chemetron,
through a license condition, to submit a remediation plan for the
Harvard Avenue site by October 1, 1993.
As described above, Chemetron did not meet its schedule for
submitting an adequate remediation plan for the Harvard Avenue site,
which resulted in the NRC issuing the Confirmatory Order of October 26,
1993. The Confirmatory Order led to the NRC's June 7, 1996, approval of
Chemetron's site remediation plan. The NRC staff concluded that this
remediation plan, unlike the previous ones submitted by Chemetron, is
adequate because (1) it is based on a comprehensive site
[[Page 36918]]
characterization; (2) adequately describes the decommissioning
activities; (3) provides acceptable radiological controls to protect
workers and the public; (4) provides an adequate plan for conducting a
final survey; and (5) provides an acceptable decommissioning cost
estimate. By authorizing Chemetron to proceed, NRC staff is confident
that Chemetron can safely and successfully complete the remediation
within the one-year schedule proposed. In the NRC review of the Harvard
Avenue remediation plan, NRC staff considered the radiological controls
that Chemetron would use during the remediation and the health and
safety impacts of the proposed onsite disposal cell. Accordingly, NRC
has now received adequate assurance from the Licensee that it has
produced a final remediation plan that will lead to the ultimate
decontamination of the Harvard Avenue site by the end of 1997.
In accordance with Commission policy, the Petitioner's request to
impose sanctions was not granted as requested. On April 10, 1992, the
Commission approved the ``Action Plan to Ensure Timely Cleanup of Site
Decommissioning Management Plan Sites.'' The Action Plan discussed the
imposition of civil penalties for sites listed in NRC's Site
Decommissioning Management Plan (SDMP). (Chemetron's Harvard Avenue
site is one of the SDMP listed sites.) The Action Plan provides that
civil penalties should be limited to two situations. Specifically, the
Action Plan provides that ``the NRC will consider civil penalties where
(1) the licensee or responsible party fails to comply with an order
compelling payment into an escrow account; or (2) the licensee or
responsible party fails to comply with a requirement or an order
compelling cleanup when there is already sufficient decommissioning
funding.''
The clear intent of the Action Plan is to take into account the
financial impact of a civil penalty on achieving decommissioning. In
the staff's view, for schedular violations, the test should be the
reasonableness of the Licensee's efforts to achieve decommissioning in
a timely manner. It is not the intent of NRC staff to impose civil
penalties where such penalties adversely affect the financial ability
of the Licensee to properly complete decommissioning.
On May 11, 1994, NRC staff issued a Notice of Violation and
Proposed Civil Penalty of $10,000 to Chemetron for submitting an
incomplete remediation plan on the date established for the plan
submittal set under a License Condition (i.e., October 1, 1993). The
base civil penalty of $5,000 was escalated because NRC identified the
violation and because of the Licensee's limited corrective action. The
civil penalty reflected the poor progress that had been made at that
time by the Licensee in the decommissioning. The NRC deferred
imposition of the civil penalty until a final waste disposal option for
both the Harvard Avenue site and Chemetron's Bert Avenue site is
approved, to ensure that sufficient funds have been set aside to carry
out the decommissioning.
As set forth above, based on the Commission's guidance in the
Action Plan, NRC has not imposed sanctions as requested by the
Petitioner. However, NRC staff has taken appropriate enforcement
actions where the Licensee did not achieve decommissioning milestones
set out in the License.
Based on the above, the NRC staff has taken appropriate actions to
ensure the decontamination of the Harvard Avenue site. The most
significant actions include the issuance of a License Amendment (dated
May 25, 1993) and two Orders (dated May 5, 1992, and October 26, 1993)
to establish schedules for the submittal of documents key to the
Harvard Avenue site remediation and the issuance of a License Amendment
on June 7, 1996, authorizing Chemetron to proceed with the remediation.
Further, based on a review of the Licensee's actions regarding this
decontamination effort, the NRC staff has concluded that the Licensee
has made adequate progress towards this end. Therefore, for all
practical purposes the Petitioner's request to compel the remediation
of the Harvard Avenue site has been granted to the extent that this is
required by the License Amendments of May 25, 1993, and June 7, 1996,
and the Orders of May 5, 1992, and October 26, 1993. However, NRC staff
does not consider that the imposition of sanctions, beyond those
proposed on May 11, 1994, is needed to compel completion of the Harvard
Avenue site remediation. Therefore, we are denying the Petitioner's
request to impose further sanctions. Finally, the staff has concluded
that no additional NRC actions are warranted concerning these requests.
Should Chemetron fail to meet its one-year schedule for decontamination
of the Harvard Avenue site, NRC staff will take appropriate action at
that time.
IV. Conclusion
For the reasons discussed above, Petitioner's request that NRC
compel Chemetron to commence action to decontaminate the Harvard Avenue
site has been granted to the extent this is required by the License
Amendments of May 25, 1993, and June 7, 1996, and the Orders dated May
5, 1992, and October 26, 1993. However, to the extent these actions
were not taken in the time originally specified by Petitioner, the
request is denied. Petitioner's second request that NRC impose
sanctions against Chemetron for failing to comply with its November 14,
1988, Confirmation of Commitment to decontaminate the Harvard Avenue
site, as requested by the Petitioner, has been denied. Further, no
substantial public health and safety concerns currently exist that
warrant additional NRC action concerning these requests.
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.
The Decision will become a 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.
Dated at Rockville, Maryland, this 3rd day of July 1996.
For the Nuclear Regulatory Commission.
Carl J. Paperiello,
Director, Office of Nuclear Material Safety and Safeguards.
[FR Doc. 96-17936 Filed 7-12-96; 8:45 am]
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