[Federal Register Volume 64, Number 64 (Monday, April 5, 1999)]
[Notices]
[Pages 16504-16508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8315]


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NUCLEAR REGULATORY COMMISSION


Issuance of Directors Decision Under 10 CFR 2.206

    Notice is hereby given that by petition dated October 15, 1998, the 
Natural Resources Defense Council (NRDC) has requested that the U.S. 
Nuclear Regulatory Commission (NRC) exert authority to ensure that the 
U.S. Army Corps of Engineers' (the Corps) handling of radioactive 
materials in connection with the Formerly Utilized Sites Remedial 
Action Program (FUSRAP) is effected in accord with properly issued 
license and all other applicable requirements. As NRDC notes in its 
petition, FUSRAP began in 1974 as a program of the U.S. Department of 
Energy (DOE), and that DOE had identified a total of 46 sites for 
cleanup under FUSRAP. By 1997, cleanup of 25 of these sites had been 
completed. There are currently 21 sites still in need of remediation. 
In October 1997, Congress transferred funding for FUSRAP from DOE to 
the Corps. NRDC believes that the Corps should obtain an NRC license to 
conduct activities under FUSRAP. At this time, the NRC has not required 
the Corps to obtain a license.
    The request has been referred to the Director of the Office of 
Nuclear Material Safety and Safeguards. A copy of the petition was sent 
to DOE and the Corps, and DOE and the Corps were given the opportunity 
to comment.
    By letter dated November 30, 1998, NRC acknowledged receipt of the 
October 15, 1998, Petition.
    The Director, Office of Nuclear Materials Safety and Safeguards, 
has determined that the request should be denied for the reasons stated 
in the ``Director's Decision Under 10 CFR 2.206'' (DD-99-07), the 
complete text of which follows this notice and which is available for 
public inspection in the Commission's Public Document Room, the Gelman 
Building, located at 2120 L Street, N.W, Washington D.C. 20555, and is 
also available on the NRC Electronic Bulletin Board at (800) 952-9676.
    A copy of this Decision has been filed with the Secretary of the 
Commission for the Commission's review in accordance with 10 CFR 
2.206(c) of the Commission's regulations. As provided by this 
regulation, this Decision will constitute the final action of the 
Commission 25 days after the date of issuance unless the Commission, on 
its own motion, institutes review of the Decision within that time.

    Dated at Rockville, Maryland, this 26 day of March 1999.

    For the Nuclear Regulatory Commission.
Carl J. Paperiello,
Director, Office of Nuclear Material Safety and Safeguards.

Director's Decision Under 10 CFR Sec. 2.206

I. Introduction

    On October 15, 1998, Thomas B. Cochran, Ph.D., Director, Nuclear 
Program, Natural Resources Defense Council (NRDC) and James Sottile, 
IV, Caplin & Drysdale, Chartered, filed a petition on behalf of NRDC 
(the ``petitioner'') addressed to L. Joseph Callan, Executive Director 
for Operations, U.S. Nuclear Regulatory Commission (NRC). The petition 
requests that NRC exert authority to ensure that the Corps of 
Engineers' handling of radioactive materials in connection with the 
Formerly Utilized Sites Remedial Action Program (FUSRAP) is effected in 
accord with a properly issued license and all other applicable 
requirements.

II. Background

    During the 1940s, 1950s, and 1960s, the Manhattan Engineer District 
and the Atomic Energy Commission performed work at a number of sites 
throughout the United States as part of the nation's early atomic 
energy program. Although many of the sites were cleaned up under 
guidelines in effect at the time, residual contamination remains at 
many of the sites today. The contaminants at these sites involved 
primarily low levels of uranium, thorium, and radium, with their 
associated decay products. The U.S. Department of Energy (DOE) began 
FUSRAP in 1974 to study these sites and take appropriate cleanup 
action. By 1997, DOE had identified 46 sites in the program and had 
completed remediation at 25 sites with some ongoing operation, 
maintenance, and monitoring being undertaken by DOE. Remedial action 
was planned, underway, or pending final closeout at the remaining 21 
sites.
    On October 13, 1997, Congress passed the 1998 Energy and Water 
Development Appropriations Act,1 which transferred 
administration of FUSRAP to the U.S. Army Corps of

[[Page 16505]]

Engineers (the Corps or USACE) and appropriated $140,000,000 to the 
Corps for the completion of FUSRAP activities. The language in the law 
reads as follows:

    \1\ Energy and Water Development Appropriations Act, 1998, Pub. 
L. No. 105-62, 111 Stat. 1326 (1997)
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    For the expenses necessary to administer and execute the 
Formerly Utilized Sites Remedial Action Program to clean up 
contaminated sites throughout the United States where work was 
performed as part of the nation's early atomic energy program, 
$140,000,000, to remain available until expended: Provided, that the 
unexpended balances of prior appropriations provided for these 
activities in this Act or any previous Energy and Water Development 
Appropriations Act may be transferred to and merged with this 
appropriation account, and thereafter, may be accounted for as one 
fund for the same time period as originally enacted.2

    \2\ Id.
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    The legislative history behind this provision offers little 
guidance regarding the details of the Corps' new involvement. The 
Conference Committee report states that ``(t)he conferees have agreed 
to transfer the Formerly Utilized Sites Remedial Action Program 
(FUSRAP) to the Corps of Engineers, and funding for this program is 
contained in Title I of the bill.'' 3 The House 
Appropriations Committee report indicates that this change stems from 
concerns over the cost of the FUSRAP program under DOE. The Committee 
report concludes that ``(c)learly, the problem must be in the contract 
management and contract administration function performed by the 
Department of Energy and the management and operating contractors who 
actually subcontract for most of the cleanup work.'' 4 
Finally, citing the Corps' efforts under the Formerly Used Defense 
Sites (FUDS) program, the report indicates that there are significant 
cost and schedule efficiencies to be gained by ``. . . having the Corps 
of Engineers manage the Department of Energy's FUSRAP program as 
well.'' 5
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    \3\ H.R. Conf. Rep. No. 271, 105th Cong., 1st Sess., 85 (1997).
    \4\ H.R. Rep. No. 190, 105th Sess., 99 (1997).
    \5\ Id.
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    Given the lack of guidance in the legislative history, two members 
of Congress sought to clarify the law's intent through subsequent 
correspondence. In a November 6, 1997, letter to Energy Secretary 
Federico Pena and Defense Secretary William Cohen, Senator Pete 
Domenici and Representative Joseph McDade indicated, among other 
things, that:

    Transfer of the FUSRAP program to the U.S. Army Corps of 
Engineers makes management, oversight, programming and budgeting, 
technical investigations, designs, administration, and other such 
activities directly associated with the execution of remediation 
work at the currently eligible sites a responsibility of the Corps 
of Engineers. It should be emphasized that basic underlying 
authorities for the program remain unaltered and the responsibility 
of DOE [emphasis added].

The Energy and Water Development Appropriations Act for fiscal year 
1999 (FY99), P.L. 105-245, continued the Corps' involvement as the 
implementing agency for the FUSRAP. In particular, the 1999 Act 
provided that response actions by the United States Army Corps of 
Engineers under FUSRAP shall be subject to the administrative, 
procedural, and regulatory provisions of the Comprehensive 
Environmental Response, Compensation and Liability Act (CERCLA) (42 
U.S.C. 9601 et seq.), and the National Oil and Hazardous Substances 
Pollution Contingency Plan, 40 CFR, Chapter 1, Part 300. In addition, 
the 1999 Act provided that, ``* * * except as stated herein, these 
provisions do not alter, curtail or limit the authorities, functions or 
responsibilities of other agencies under the Atomic Energy Act (42 
U.S.C. 2011 et seq.) * * *'' 6
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    \6\ Pub. L. No. 105-245, Title I.
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    To date, NRC has not regulated activities conducted under FUSRAP, 
including those activities conducted by the Corps since the transfer of 
the program. The petitioner, however, believes that NRC should regulate 
the Corps' FUSRAP activities, arguing that the Appropriations Act did 
not purport to transfer authority over FUSRAP to the Corps. As such, 
according to the petitioner, the Corps may not legally administer the 
program absent proper oversight because, unlike DOE and (in most cases) 
DOE contractors, the Corps is not exempt from the licensing 
requirements of the Atomic Energy Act (see 42 U.S.C. 2014(s)). The 
petitioner further indicates that DOE has publicly stated that it 
cannot extend its licensing exemption for private contractors to the 
Corps and that DOE has no regulatory authority over the Corps for the 
latter's FUSRAP activities. The petitioner concludes that ``* * * the 
Corps does not have the legal authority to run FUSRAP without first 
obtaining a license from the NRC.''
    In support of its position, the petitioner notes that the 
institutional mission of the Corps is not focused on the safety and 
security of the nation's nuclear activities. In addition, NRC's failure 
to regulate the Corps' FUSRAP activities is claimed to be inconsistent 
with the intent of the laws governing the utilization and cleanup of 
nuclear materials. Finally, the petitioner adds that, with very few 
exceptions, Congress intended that no person should be permitted to 
handle nuclear materials except in accordance with a license issued by 
NRC.
    In a November 30, 1998, letter NRC informed the petitioner that the 
petition had been received and was currently under review. On the same 
date, NRC forwarded the petition to the DOE and the Corps for their 
comment. In a January 12, 1999, letter, the Chief Counsel for the 
Corps, Robert M. Andersen, responded to NRC's request. DOE responded to 
NRC's request in a January 14, 1999, letter from William J. Dennison, 
Assistant General Counsel for Environment.

The Corps' Response

    In its response, the Corps states that it is not required to obtain 
a license from NRC for its FUSRAP activities. The Corps' response 
emphasizes that Congress directed the Corps to conduct its FUSRAP 
activities pursuant to the CERCLA.7 The Corps' principal 
argument is that no NRC license is required because of the federal 
permit waiver for on-site removal or remedial actions in Sec. 121(e)(1) 
of CERCLA. The Corps also believes that the AEA exempts FUSRAP activity 
from NRC licensing. In its opinion, ``Congress intended for USACE to 
fill the shoes of the AEC successor agency responsible for FUSRAP 
cleanup, that is DOE, an agency not considered a ``person'' subject to 
licensing under the AEA.'' The Corps further posits that, in 
transferring the FUSRAP program, Congress expressed no intent that the 
agency obtain an NRC license for that activity and, instead, sought a 
seamless transition ``unimpeded by procedural requirements outside of 
CERCLA.''
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    \7\ 42 USC 9601 et seq.
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    Nevertheless, the Corps commits to meeting the substantive 
requirements of both the Atomic Energy Act (AEA) and CERCLA. It 
acknowledges that NRC license requirements may apply to portions of 
FUSRAP response actions conducted off-site, beyond the scope of the 
permit waiver. The letter concludes by acknowledging that the 
substantive provisions of NRC regulations are applicable or relevant 
and appropriate requirements (ARARs) for many FUSRAP response actions 
under CERCLA and, as such, the Corps will look ``... to NRC for 
guidance in interpreting and implementing these requirements on the 
sites.''

DOE's Response

    DOE's response differs in several respects from that of the Corps. 
On the

[[Page 16506]]

matter of DOE's continued involvement with FUSRAP and oversight of the 
Corps, the Department ``respectfully disagrees'' with the Corps. 
According to its submittal, DOE is not authorized to regulate the 
Corps' FUSRAP activities and cannot transfer its AEA authorities to the 
Corps. In the Department's view, ``(t)he transfer legislation did not 
make the Corps a DOE contractor, or otherwise subject the Corps' 
activities to the control or direction of DOE.'' The letter also 
indicates that DOE and the Corps are currently developing a memorandum 
of understanding (MOU) to clarify their respective roles and 
responsibilities as a result of the legislative transfer. Nevertheless, 
DOE believes that, with the exception of a few ``administrative 
issues,'' there are no remaining issues between the two agencies that 
should affect NRC's disposition of the NRDC petition. The letter 
concludes that NRC should ``evaluate the licensability of the Corps' 
activities in the same manner as it would evaluate the activities of 
any other `person' within the meaning of the Atomic Energy Act.'' DOE 
defers to NRC on this question. The letter does not contain a DOE 
position concerning the viability of the Corps' CERCLA argument.

III. Discussion

    The NRC staff has completed its evaluation of the petitioner's 
requests and the responses from the Corps of Engineers and the 
Department of Energy. For the reasons discussed below, the NRC denies 
the petitioner's request insofar as it calls on NRC to require the 
Corps to obtain a license for activities conducted at FUSRAP sites.

CERCLA Permit Waiver

    Pursuant to Sec. 121(e)(1) of CERCLA, ``(n)o Federal, State, or 
local permit shall be required for the portion of any removal or 
remedial action conducted entirely onsite, where such remedial action 
is selected and carried out in compliance with this section.'' 
8 This provision waives any NRC license requirements that 
would apply to the Corps' activities at FUSRAP sites conducted pursuant 
to CERCLA.
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    \8\ See also, 10 CFR 300.400(e).
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    The Corps argues that, because Congress specifically subjected 
FUSRAP sites to the provisions of CERCLA in the 1999 Act, section 
121(e)(1) applies to Corps' response actions at FUSRAP sites. In 
developing regulations for the implementation of CERCLA, the 
Environmental Protection Agency (EPA) addressed the Sec. 121(e)(1) 
waiver provision for federal agency CERCLA response actions in 
Sec. 300.400(e) of the National Contingency Plan (NCP). That provision 
states, in pertinent part:

    ``Permit requirements. (1) No federal, state, or local permits 
are required for on-site response actions conducted pursuant to 
CERCLA sections 104, 106, 120, 121, or 122. The term on-site means 
the areal extent of contamination and all suitable areas in very 
close proximity to the contamination necessary for implementation of 
response actions.'' 9
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    \9\ 40 CFR 300.400(e)(1).

    In the preamble of the final rule which proposed this section, EPA 
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provided:

    Proposed Sec. 300.400(e)(1) states that the permit waiver 
applies to all on-site actions conducted pursuant to CERCLA sections 
104, 106, or 122; in effect, this covers all CERCLA removal and 
remedial actions (all ``response'' actions). However, a number of 
other federal agencies have inquired as to whether this language 
would reach response actions conducted pursuant to CERCLA sections 
121 and 120. In response, EPA has made a non substantive 
clarification of the applicability of the permit waiver in CERCLA 
section 121(e)(1) to include on-site response actions conducted 
pursuant to CERCLA sections 120 and 121. . . . The addition of 
CERCLA section 120 simply recognizes that the permit waiver applies 
to federal facility cleanups conducted pursuant to CERCLA section 
120(e), which are also selected and carried out in compliance with 
CERCLA section 121.10
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    \10\ 55 FR 8666, 8689 (1990) (``National Oil and Hazardous 
Substances Pollution Contingency Plan; Final Rule) (emphasis added). 
This change echoed EPA's intentions stated in the proposed rule: 
``EPA proposes to state that on-site permits are not required for 
response actions taken by EPA, other federal agencies, States, or 
private parties pursuant to CERCLA sections 104, 106, or 122.'' 53 
Fed. Reg. 51394, 51406 (1988) (``National Oil and Hazardous 
Substances Pollution Contingency Plan; Proposed Rule) (emphasis 
added).

    Section 121(e)(1) applies to federal agencies such as the Corps in 
this case. The Corps may take the role of ``lead agency'' in a CERCLA 
cleanup action. The NCP defines ``lead agency'' as ``the agency that 
provides the OSC/RPM to plan and implement response actions under the 
NCP. EPA, the USCG, another federal agency, or a state * * * may be the 
lead agency for a response action.'' 11 The NCP also states 
that ``Federal agencies listed in Sec. 300.175 have duties established 
by statute, executive order, or Presidential directive which may apply 
to federal response actions following, or in prevention of, the 
discharge of oil or release of a hazardous substance, pollutant, or 
contaminant.'' 12 The Corps, a branch of the U.S. Department 
of Defense, is among the agencies listed.13 In the case of 
the FUSRAP program, Congress specifically designated the Corps as the 
``lead agency'' in passing the 1999 Appropriations Act.14
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    \11\ 40 CFR 300.5 (emphasis added). The definition goes on to 
state, ``The federal agency maintains its lead agency 
responsibilities whether the remedy is selected by the federal 
agency for non-NPL sites or by EPA and the federal agency or by EPA 
alone under CERCLA section 120.''
    \12\ 40 CFR 300.170.
    \13\ See 40 CFR 300.175(b)(4)(i).
    \14\ Pub. L. No. 105-245, Title I.
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    As the Corps acknowledges in its letter, the permit waiver in 
Sec. 121(e)(1) has been rarely addressed in the courts. In support of 
its position, the Corps does cite McClellan Ecological Seepage 
Situation (MESS) v. Cheney, a case which held that a Resource 
Conservation and Recovery Act (RCRA) permit was not required when 
activities which might otherwise require a RCRA permit took place at a 
site only as part of a CERCLA removal or remedial action.15 
In McClellan, MESS, a citizens' group, filed suit against the Secretary 
of Defense, with regard to cleanup actions being taken at McClellan Air 
Force Base, under RCRA and certain state laws. MESS claimed, inter 
alia, that McClellan was required to obtain a RCRA permit for the 
management of certain hazardous wastes on the base. The court held that 
an RCRA permit was not required, because the remedial activities were 
taken pursuant to CERCLA. The court relied on Sec. 121(e)(1), stating, 
``Section 121(e) expressly provides that the activity does not have to 
be separately permitted.'' 16
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    \15\ 763 F. Supp. 431 (E.D. Cal. 1989). This holding was later 
vacated on the basis of subject matter jurisdiction. See McClellan 
Ecological Seepage Situation (MESS) v. Perry, 47 F.3d 325 (9th Cir. 
1995).
    \16\ 763 F. Supp. 431, at 435. The court went on to note in 
dicta that where there has been treatment that requires a RCRA 
permit which is not associated with a remedial or removal action 
under CERCLA, such a permit would be required. Id.
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    The Corps also cites United States v. City of Denver to uphold this 
interpretation of Sec. 121(e)(1).17 In that case, the court 
held that CERCLA preempted a zoning ordinance which was in actual 
conflict with EPA's remedial order. The court stated, ``[T]o hold that 
Congress intended that non-uniform and potentially conflicting zoning 
laws could override CERCLA remedies would fly in the face of Congress's 
[sic] goal of effecting prompt cleanups of the literally thousands of 
hazardous waste sites across the country.'' 18
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    \17\ 100 F.3d 1509 (10th Cir. 1996).
    \18\ Id. at 1513. The Corps cited Ohio v. USEPA, 997 F.2d 1520 
(D.C. Cir. 1993) in support of its Sec. 121(e)(1) position. NRC 
would note that the case upholds a number of provisions in EPA's 
1990 revision of the NCP, including Sec. 121(e)(1). However, the 
court's discussion centers on EPA's definition of the term 
``onsite,'' and does not discuss the exemption provision, as a 
whole, in detail.

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[[Page 16507]]

    In passing the 1998 and 1999 Appropriations Acts, Congress gave no 
indication that it intended to suspend the waiver provision in 
Sec. 121(e)(1) of CERCLA in the context of the Corps' FUSRAP 
activities. The 1999 Act does say: ``Provided further, That, except as 
stated herein, these provisions do not alter, curtail or limit the 
authorities, functions or responsibilities of other agencies under the 
Atomic Energy Act (42 U.S.C. 2011 et seq.) * * * '' In its letter, DOE 
points to this language to support its argument that the Appropriations 
Act does not create any authority for it to regulate the Corps. In 
doing so, DOE interprets the term ``provisions'' as referring to the 
provisions of the Appropriations Act and not the provisions of CERCLA. 
The NRC staff agrees with DOE on this point. While the language appears 
to indicate that the transfer of the program to the Corps does not 
alter the extent of DOE and perhaps NRC authority under the AEA, there 
is no specific indication that the language is intended to direct NRC 
to regulate the Corps' administration of the FUSRAP program. In 
particular, there is no evidence that in including this phrase, 
Congress intended to limit the application of the Sec. 121(e)(1) permit 
waiver to the Corps' FUSRAP activities. In fact, nowhere in the reports 
for either the 1998 or 1999 Acts or in the text of the laws themselves 
did Congress give any hint that it intended NRC to regulate the Corps 
in its administration of the FUSRAP program. Instead, the inclusion of 
the specific reference to CERCLA suggests that Congress intended NRC to 
continue to refrain from regulating activities under the FUSRAP program 
even after DOE's role was reduced or discontinued.
    As DOE states in its letter, the Corps has ``consistently expressed 
the view that its authorities under the Comprehensive Environmental 
Response, Compensation and Liability Act (CERCLA) * * * '' are 
sufficient for the Corps' administration of the FUSRAP program. By the 
time the 1999 Appropriations Act was passed, the Corps' administration 
of the FUSRAP program under CERCLA was a matter of public record 
19 and NRC had not taken any steps to require the Corps to 
obtain a license from NRC. If Congress had intended NRC to regulate the 
Corps' activities at FUSRAP sites, it is likely that it would have 
specifically directed NRC to do so in passing the 1999 Appropriations 
Act.
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    \19\ See, e.g., Letter from Albert J. Genetti, Jr., U.S. Army 
Deputy Commander, U.S. Army Corps of Engineers, to Mr. Thomas B. 
Cochran and Ms. Barbara A. Finamore, Natural Resources Defense 
Council, May 20, 1998.
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    We note, however, that the waiver in Sec. 121(e)(1) does not apply 
to off-site activities. To the extent that NRC and U.S. Department of 
Transportation (DOT) requirements apply to the transportation, transfer 
and disposal of Atomic Energy Act material taken off of FUSRAP sites, 
the Corps has committed to following applicable requirements, including 
those for transfer under the AEA, shipment under the Hazardous 
Materials Transportation Act, 49 U.S.C. 5101, and NRC manifest 
requirements (e.g., 10 CFR Sec. 20.2006).20
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    \20\ While the Corps will be following NRC's requirements in 
this area, it is unlikely that any specific NRC license requirements 
would apply to shipments from FUSRAP sites. However, the staff will 
request that the Corps contact NRC if it plans to ship material that 
does not meet one of the exemptions for a specific license in NRC 
regulations. See, e.g., 10 C.F.R. Sec. 71.10.
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NRC Authority Under UMTRCA

    Many FUSRAP sites contain material over which NRC would have no 
regulatory jurisdiction regardless of whether the Corps is the lead 
agency in implementing the program and regardless of whether response 
actions by the Corps under the program are subject to CERCLA. In 
particular, of the 21 sites at which remediation has not yet been 
completed, 12 sites contain residual material resulting from activities 
that were not licensed by NRC at the time the Uranium Mill Tailings Act 
of 1978 (UMTRCA) became effective or at any time thereafter. As defined 
by the UMTRCA, NRC does not have authority to regulate cleanup of 
covered residual material resulting from an activity that was not so 
licensed.
    The language of section 83 of the Atomic Energy Act (42 U.S.C. 
2113(a)), was added to that Act by UMTRCA. Section 83 a. requires NRC 
to impose certain terms and conditions relating to cleanup with respect 
to any ``license issued or renewed after the effective date'' of 
section 83 for covered activities, and also imposes such terms or 
conditions on any such ``license in effect on the date of enactment'' 
of the section. No such responsibility was imposed upon NRC with 
respect to activities that were not under NRC license before the date 
of the enactment of section 83, if they were not licensed thereafter.
    Prior to the enactment of UMTRCA, neither the AEC nor the NRC had 
statutory jurisdiction over residual material resulting from the 
processing of ore for source material. This position was taken by the 
AEC after careful legal analysis, and was subsequently adopted by the 
NRC when it succeeded to the AEC's regulatory functions. Though NRC 
exercised some control over such material in connection with licensed 
processing of ore for source material, it did not exercise jurisdiction 
at inactive sites where no license was in effect. UMTRCA was enacted 
because the Congress recognized that NRC did not have jurisdiction over 
radioactive residuals resulting from the extraction of uranium or 
thorium from ore processed for its source material content at inactive 
sites. This is evidenced by the floor remarks regarding the amended 
version of H.R. 13650, the bill that was enacted as UMTRCA. Senator 
Hart explained:

    Although the NRC licenses active uranium mining and milling 
activities, existing law does not permit the Commission to regulate 
the disposal of mill tailings once milling and mining operations 
cease and the operating license expires. It is that authority to 
regulate tailings after milling operations cease, that we propose be 
given to the NRC.21
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    \21\ 124 Cong. Rec. S18,748 (October 13, 1978).

Because the residual material at many FUSRAP sites was generated in 
activities that were not licensed when UMTRCA was enacted, or 
thereafter, NRC today has no basis to assert any regulatory authority 
over handling of the residuals at those sites.
    The NRC staff notes that many of the remaining sites (i.e., sites 
containing materials other than mill tailings) also raise some 
significant jurisdictional questions in their own right. For instance, 
a few of the sites may still be in legal possession of DOE even though 
the Corps is conducting clean up at the site under FUSRAP. While the 
issue of possession appears to be a matter of continuing discussion 
between the Corps and DOE, it is highly unlikely that NRC would have 
authority to require a license for cleanup activities conducted at a 
site which continues to be a DOE-owned or controlled site. In addition, 
the concentration of radioactive material at some of the remaining 
sites may not be sufficient to trigger NRC license requirements. While 
NRC does not have information sufficient to reach a final conclusion 
for specific sites, it is the NRC staff's understanding that some of 
these sites may contain only ``unimportant quantities'' of source 
material as defined under 10 CFR Sec. 40.13(a). If this is the case, 
the amount of material at these sites would not be sufficient to 
implicate NRC license requirements. Given the limitations of NRC 
jurisdiction under UMTRCA, the potential DOE ownership issues, and the 
possibility that several sites may

[[Page 16508]]

contain ``unimportant quantities'' of source material, it is likely 
that the number of FUSRAP sites over which NRC may have jurisdiction 
would be very small even absent the CERCLA permit waiver.

The Corps' Authority Under the Appropriations Act

    In its response, the Corps states that the AEA also exempts FUSRAP 
activity from NRC licensing because Congress intended the Corps to fill 
the shoes of DOE, an agency exempt from NRC regulatory requirements 
under most circumstances. DOE disagrees with this characterization, 
claiming that, for the most part, it has no role in the FUSRAP program 
at this time (regulatory, contractual, or otherwise). As such, in DOE's 
view, the Corps cannot rely on any exemption in the AEA to avoid 
regulation by NRC. Nevertheless, DOE acknowledges that the transfer to 
the Corps did not completely eliminate the Department's involvement 
with FUSRAP. While the issues have yet to be resolved, DOE may have 
responsibility for inventory reporting of government-owned FUSRAP sites 
to the General Services Administration and may be required to conduct 
post-cleanup monitoring at some sites after the Corps' clean up 
activities cease.
    DOE and the Corps are working on an MOU to address their 
disagreements regarding the nature of the transfer of the FUSRAP 
program and their respective responsibilities under the program. Until 
the disagreement has been resolved, either by the agencies or by 
further direction from Congress, the NRC staff need not reach a 
conclusion on the matter. Nevertheless, in view of the clear 
applicability of CERCLA Sec. 121(e)(1) to the Corps' activity at FUSRAP 
sites, the staff does not believe that it would be appropriate to 
require the Corps to obtain an NRC license for its activity at FUSRAP 
sites.

IV. Conclusion

    In sum, Congress has given NRC no clear directive to oversee 
USACE's ongoing effort under CERCLA to complete the FUSRAP cleanup 
project. Indeed, Congress has provided NRC no money and no personnel to 
undertake an oversight role. In addition, Congress has made it clear 
that the Corps is to undertake FUSRAP cleanup pursuant to CERCLA which 
waives permit requirements for onsite activities. In these 
circumstances, we are disinclined to read our statutory authority 
expansively, and to commit scarce NRC resources, to establish and 
maintain a regulatory program in an area where, under Congressional 
direction, a sister federal agency already is at work and has committed 
itself to following appropriate safety and environmental standards.
    Accordingly, I deny the petition insofar as it requests NRC to 
impose licensing and other regulatory requirements on the Corps for 
that agency's handling of radioactive material at FUSRAP sites. Both 
the permit waiver provision of CERCLA and the ambiguity regarding DOE's 
role in the program lead me to the conclusion that NRC should not 
inject itself into the FUSRAP program at this time. Absent specific 
direction from Congress to the contrary, NRC will continue to refrain 
from regulating the Corps in its clean up activities at FUSRAP sites.
    As provided by 10 C.F.R. Sec. 2.206, a copy of this Decision will 
be filed with the Secretary of the Commission for the Commission's 
review. The Decision will become the final action of the Commission 25 
days after issuance, unless the Commission, on its own motion, 
institutes review of the Decision within that time.

    Dated at Rockville, Maryland this 26th day of March 1999.

    For the Nuclear Regulatory Commission.
Carl J. Paperiello,
Director, Office of Nuclear Material Safety and Safeguards.
[FR Doc. 99-8315 Filed 4-2-99; 8:45 am]
BILLING CODE 7590-01-P