[Federal Register Volume 66, Number 134 (Thursday, July 12, 2001)]
[Notices]
[Pages 36606-36609]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17452]


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NUCLEAR REGULATORY COMMISSION


Memorandum of Understanding Between the U.S. Nuclear Regulatory 
Commission and The U.S. Army Corps of Engineers for Coordination of 
Cleanup & Decommissioning of the Formerly Utilized Sites Remedial 
Action Program (FUSRAP) Sites With NRC-Licensed Facilities

AGENCY: Nuclear Regulatory Commission.

ACTION: Notice.

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SUMMARY: This notice is to advise the Public of the issuance of a 
Memorandum of Understanding between the U.S. Army Corps of Engineers 
(USACE) and the U.S. Nuclear Regulatory Commission (NRC). The purpose 
of the MOU is to avoid unnecessary duplication of regulatory 
requirements that may hinder USACE in its remediation of sites under 
the Comprehensive Environmental Response, Compensation, and Liability

[[Page 36607]]

Act (CERCLA). Under the MOU, NRC could exercise its discretion to 
suspend NRC-issued licenses, or portions thereof, at FUSRAP sites. The 
MOU addresses unrestricted releases under 10 CFR 20.1402, and the MOU 
will ensure that the criteria of the License Termination Rule or a more 
stringent requirement will be met. The MOU will enhance interagency 
dialogue and will make the agencies activities and decisions concerning 
site decommissioning and cleanup more effective and efficient. The MOU 
will assist the agencies to reduce unnecessary burden on stakeholders 
and avoid duplication of regulatory requirements and effort by setting 
out cooperative conditions, consistent with the protection of the 
public health and safety.

EFFECTIVE DATE: July 5, 2001.

ADDRESSES: Copies of all NRC documents are available for public 
inspection, and copying for a fee, in the NRC Public Document Room, 
11455 Rockville Pike (Mail Stop: 01F13), Rockville, MD. The NRC Public 
Document Room is open from 7:45 a.m. to 4:15 p.m., Monday through 
Friday (except Federal holidays). Telephone service is provided from 
8:30 a.m. to 4:15 p.m., at (301) 415-4737 or toll-free at 1-800-397-
4209 or e-mail: [email protected].

FOR FURTHER INFORMATION CONTACT: Amir Kouhestani, NMSS Mail Stop T7-
F27, U.S. Nuclear Regulatory Commission, Washington, DC 20005-0001. 
Telephone: (301) 415-0023; Fax (301) 415-5398; e-mail: [email protected].

    Dated at Rockville, Maryland, this 5th Day of July, 2001.

    For the Nuclear Regulatory Commission.
Larry W. Camper,
Chief, Decommissioning Branch, Division of Waste Management, Office of 
Nuclear Material Safety and Safeguards.

Memorandum of Understanding Between the U.S. Nuclear Regulatory 
Commission and the U.S. Army Corps of Engineers for Coordination on 
Cleanup & Decommissioning of the Formerly Utilized Sites Remedial 
Action Program (FUSRAP) Sites With NRC-Licensed Facilities

Article I--Purpose and Authority

    A. This Memorandum of Understanding (MOU) is entered into by and 
between the U.S. Nuclear Regulatory Commission (NRC) and the U.S. Army 
Corps of Engineers (USACE), (``The Parties'') for the purpose of 
minimizing dual regulation and duplication of regulatory requirements 
at FUSRAP sites with NRC-licensed facilities. For activities where a 
potential for dual regulation could exist, the two agencies agree to 
cooperate, share information, and/or coordinate activities in their 
respective programs. This MOU applies to USACE response actions meeting 
the decommissioning requirements of 10 CFR 20.1402, ``Radiological 
Criteria for Unrestricted Use.'' USACE Response actions meeting the 
restricted release requirements of 10 CFR 20.1403, are outside the 
scope of this MOU.
    B. The NRC has the statutory responsibility for the protection of 
the public health and safety related to the possession and use of 
source, byproduct, and special nuclear material under the Atomic Energy 
Act of 1954, as amended (Public Law 83-703, 68 Stat. 919). This 
includes ensuring the decommissioning of the nuclear facilities that it 
licenses. The Commission's licenses and regulations set out conditions 
to provide for the protection of the public health and safety and the 
environment. To terminate such licenses, NRC must ensure that licensees 
meet the Commission's decommissioning requirements including the 
provisions of 10 CFR 20 subpart E--Radiation Criteria for License 
Termination.
    C. USACE is administering and executing cleanup at FUSRAP sites 
pursuant to a March 1999, MOU with the Department of Energy and the 
provisions of the Energy and Water Development Appropriations Acts for 
Fiscal Years 1998-2001 (Public Laws 105-62, 105-245, 106-60 and 106-
377, respectively). Section 611 of Pub. L. 106-60 requires the USACE to 
remediate FUSRAP sites, in accordance with, and subject to the 
Comprehensive Environmental Response, Compensation, and Liability Act 
of 1980, as amended (CERCLA), 42 U.S.C. 9601 et seq., and the National 
Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR, 
chapter 1, part 300. Section 611 also confers lead agency status on the 
USACE for remedy selection. USACE, as provided for in section 121(e) of 
CERCLA and 40 CFR 300.400(e), is not required to obtain a NRC license 
for its on-site remediation activities conducted under its CERCLA 
authority. However, if a response action is required, CERCLA requires 
the remedy to be protective of human health and the environment.
    D. This MOU describes how the two agencies will work together to 
meet their existing statutory responsibilities. It neither creates nor 
removes any agency responsibility or authority. This MOU is not an 
admission of responsibility or liability on the part of the United 
States with regard to any hazardous substances or operations at a 
licensed site; does not relieve a license holder of its 
responsibilities and liabilities under any law; and does not create 
rights in any third party against USACE, NRC, or the United States.
    E. CERCLA obligations imposed on the USACE may duplicate the 
obligations established by NRC regulations and licenses, resulting in 
duplicate regulatory requirements at NRC-licensed FUSRAP sites that 
will impose an added regulatory burden without an added safety benefit. 
To avoid unnecessary duplication of regulatory requirements and effort, 
this MOU sets out the conditions, consistent with the protection of the 
public health and safety, that will permit NRC to exercise its 
discretion to suspend NRC issued licenses at FUSRAP sites so that NRC 
requirements do not hinder USACE in its remediation of sites under 
CERCLA.
    F. Each agency will bear its own costs for actions consistent with 
this MOU, but this does not preclude each agency from recovering costs, 
based on it's statutory authority, from the licensee or responsible 
parties.
    G. Use of Terms.
    1. The term ``response action'' means response actions as defined 
in CERCLA at 42 U.S.C. 9601(25) including removal and remedial actions 
and related CERCLA enforcement actions.
    2. The term ``closeout'' means that all construction activities and 
reports are complete, the cleanup goals specified in the final ROD are 
achieved, coordination with regulatory agencies, and publication of 
notice in accordance with the provisions of CERCLA, the National 
Contingency Plan (NCP) and USACE procedures have been completed.
    3. The term ``completed response action'' means that all 
construction activities are complete; for components other than ground 
or surface water, the cleanup goals specified in the ROD are achieved; 
any ground and/or surface water restoration remedies are operating as 
designed; and a remedial or removal action report is complete.
    4. The term ``FUSRAP site'' means any geographic area certified by 
the Department of Energy (DOE) to have been used for activities in 
support of the Nation's early atomic energy program, and determined by 
USACE to require a response action pursuant to CERCLA or placed into 
the FUSRAP program pursuant to Congressional direction. A FUSRAP site 
may overlap all, or any part, of an NRC-licensed site.
    5. The term ``possession'' means physical control of the property 
or

[[Page 36608]]

materials for purposes of environmental restoration and protection of 
the health and safety of the public.
    Possession does not require ownership nor is USACE assuming 
responsibility for the operations and activities of the NRC licensee or 
owner of the materials. The USACE will take control only of the FUSRAP-
related materials on the licensed site as provided in paragraph III. 
B.. Non-FUSRAP materials, unless the responsibility of the USACE under 
CERCLA, remain under control of the licensee.
    6. The term ``licensed site'' means that a NRC license has been 
issued, and remains active or suspended, to possess and use material 
licensed under the Atomic Energy Act at the site.

Article II--Intragency Communication

    To provide for consistent and effective communication between NRC 
and USACE, each agency shall appoint a Principal Representative to 
serve as its headquarters-level point of contact on matters relating to 
this MOU. Written notices required by the MOU shall be sent to the 
USACE's and NRC's Principal representatives. The Principal 
Representatives are:

Chief, Decommissioning Branch, Division of Waste Management, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555
Chief, Environmental Division, Directorate of Military Programs, U.S. 
Army Corps of Engineers 441 G Street, NW., Washington, DC 20314-1000

Article III--Agreement

    A. At the request of USACE, NRC will initiate action for the 
suspension of the NRC license or portions of the license for a FUSRAP 
site to be remediated by USACE under CERCLA authority contingent upon 
USACE notifying the NRC in writing that:
    (1) USACE is prepared to take physical possession of all or part of 
the licensed site for purposes of control of radiation from FUSRAP 
materials subject to NRC jurisdiction and be responsible for the 
protection of the public health and safety from those materials 
consistent with 10 CFR part 20 ``Standards For Protection Against 
Radiation'' and other requirements consistent with CERCLA;
    (2) USACE will conduct a response action at the licensed site under 
its FUSRAP and CERCLA authority, with regard to FUSRAP materials 
subject to NRC jurisdiction, to meet at least the standards required 
under 10 CFR 20.1402, and
    (3) USACE has no objection to, and will facilitate, NRC observing 
USACE in-process remediation activities.
    Such written notification to the NRC should be provided after the 
final Record of Decision (ROD), or its equivalent, is issued, if one is 
prepared, and at least 90 calendar days prior to USACE's expected date 
of initiation of a site response action so that the NRC can initiate 
the process for suspension of the license. Prior to submitting the 
notification, USACE will make a reasonable attempt to obtain the 
licensee's consent to USACE's proposed action and document the results 
of this effort in the notification.
    B. Depending on the extent of FUSRAP materials and their 
separability from other hazardous substances on the site, USACE's 
responsibility may encompass the entire site, portions of the site, all 
the radioactive materials or just the FUSRAP and commingled materials, 
as specified in the final ROD. USACE will notify NRC of its findings 
regarding the type and extent of hazardous substance on a licensed site 
prior to requesting license suspension. Prior to USACE submitting a 
request for license suspension on a site where the NRC license 
suspension will not encompass the entire site, USACE and NRC will meet 
to agree on the scope of the suspension. The licensee may be involved 
in these discussions.
    C. NRC licensing action for the suspension of the license, or 
portions of the license, will be effective, subject to:
    (1) Written notification from USACE to the NRC that USACE has taken 
physical possession of the licensed site for purposes of radiation 
control and is now responsible for the protection of the public health 
and safety consistent with the requirements of 10 CFR Part 20 and
    (2) The effectiveness rules of the NRC hearing process pursuant to 
10 CFR Part 2, ``Rules Of Practice For Domestic Licensing Proceedings 
And Issuance Of Orders.''
    Prior to license suspension, the licensee retains responsibility 
for meeting the Commission's requirements for protecting the 
environment and the health and safety of the public.
    D. NRC may observe, as it deems warranted, remediation activities 
being conducted by USACE. For the purpose of scheduling in-process 
activity observation, USACE shall provide the NRC with the schedule of 
major activities, regular progress reports on sites' activities, 
studies, and/or remediation, and planned work stoppages.
    E. The NRC shall keep USACE apprised in writing of questions, 
comments or concerns arising from any NRC observations of USACE 
response action activities and shall immediately notify the USACE of 
any conditions having a potential to adversely affect the environment 
or the health and safety of the public.
    F. USACE shall be responsible for the protection of the health and 
safety of the public consistent with the requirements of CERCLA and 10 
CFR part 20 during the time it is in physical possession of the 
licensed site or portions thereof which are suspended in accordance 
with the agreement at the time of license suspension.
    G. USACE shall remediate the licensed site to meet at least the 
requirements of CERCLA and of 10 CFR 20.1402. The Applicable or 
Relevant and Appropriate Requirement (ARAR) in the final executed ROD 
will include 10 CFR 20.1402 or a more stringent requirement.
    H. USACE shall manage all activities and prepare program estimates, 
funding requirements, and budget justifications for all FUSRAP 
activities for which it has been given responsibility as provided by 
the annual Energy and Water Development Appropriations Act, and the 
terms of this MOU. USACE shall request FUSRAP appropriations in the 
annual Energy and Water Development Appropriations Act for these 
activities. USACE shall respond to inquiries from public officials, 
Congressional interests, stakeholders, and members of the press 
regarding USACE activities under FUSRAP.
    I. USACE shall consult with NRC if USACE surveys, investigations, 
and data analyses are inconsistent with the NRC description of the 
potential radioactive and/or chemical contaminants and processes 
involved in the historical activities at a licensed site at which the 
USACE is conducting a FUSRAP investigation or response action under 
CERCLA. USACE shall immediately notify NRC if, as a result of its 
Preliminary Assessments, Remedial Investigations, or other surveys 
prior to production of a ROD, conditions warrant a time-critical 
removal action, and the agencies will identify an appropriate response 
that protects the environment and the health and safety of the public.
    J. USACE shall notify NRC in writing if there is a need for a 
radiological response action under FUSRAP on any property not covered 
by the license suspended or to be suspended ( whether or not owned by 
the licensee) as a result of radioactive contamination from a licensed 
site undergoing a FUSRAP investigation or response action.

[[Page 36609]]

    K. Following completion of the response action at a FUSRAP site 
with an NRC-licensed facility, USACE shall provide the NRC with a copy 
of the CERCLA Administrative Record for the NRC historical public 
record. At the time of close out USACE will provide NRC with copies of 
any additional information that has been placed in the CERCLA 
Administrative Record.
    L. USACE shall notify the NRC in writing if there are NRC-licensed 
facilities on FUSRAP sites that may require coordination with the NRC 
in addition to the four known sites: Maywood Site (Stepan), Maywood, 
NJ; CE-Windsor Site, Windsor, CT; St. Louis Downtown Site 
(Mallinkrodt), St. Louis, MO; and the Shallow Land Disposal Area, Parks 
Township, PA.
    M. USACE shall keep NRC apprised in writing of progress toward 
completion of Preliminary Assessments and/or Site Investigations at 
licensed sites to determine:
    (1) Whether FUSRAP and commingled materials at the site are a 
threat or potential threat to public health and safety or the 
environment as a result of the licensed materials there; and
    (2) Whether the release requires a response under CERCLA.
    N. The NRC will reinstate the license or portions of the license 
put into suspension due to USACE's remediation if USACE:
    (1) Is no longer controlling the FUSRAP-related portion of the 
licensed site for radiation protection purposes,
    (2) Is no longer proceeding with a response action at the licensed 
site under CERCLA, or
    (3) Has otherwise completed its response action.
    At least 90 calendar days prior to USACE terminating its physical 
possession of the licensed site for purpose of control of radiation, 
USACE will notify the NRC in writing so that the NRC can initiate the 
process for reinstating the license. USACE shall promptly notify NRC in 
writing if annual funding for the FUSRAP response action at an NRC-
licensed site does not appear to be sufficient to complete the response 
action.
    O. NRC shall be responsible for appropriate regulatory action, 
including requiring any further decommissioning if necessary, following 
license reinstatement.
    P. As may be necessary, NRC and USACE will develop working 
procedures to implement this MOU. Such procedures will be approved by 
the Principal Representatives.

Article IV--Further Assistance

    NRC and USACE shall provide such information as may be reasonably 
necessary or required, which are not inconsistent with applicable laws 
and regulations, and the provisions of this MOU, in order to give full 
effect to this MOU and to carry out its intent.

Article V--Dispute Resolution

    Every effort will be made to resolve issues between NRC and USACE 
by the staff directly involved in the activities at issue, through 
consultation and communication. If a mutually acceptable resolution 
cannot be reached, the dispute will be elevated to successively higher 
levels of management up to the signers of this MOU. If resolution 
cannot be reached, NRC may in its discretion reinstate the licenses 
involved after providing a written 30 calendar day advance notice to 
the USACE. Upon license reinstatement, USACE's obligations under this 
MOU for the particular site shall cease and the licensee becomes 
responsible for control of radioactive materials on the licensed site, 
as well as protecting the environment and the health and safety of the 
public, subject to NRC regulation and other applicable law. Upon 
determining that the licensee has established control of the site and 
hazardous substances, USACE will relinquish possession of the site and 
hazardous substances, will cease remediation activities, and will 
vacate the site. License reinstatement constitutes notice of the shift 
in responsibility for control of the site and its hazardous substances.

Article VI--Amendment and Termination

    This MOU may be modified or amended in writing by the mutual 
agreement of the parties. Either party may terminate the MOU by 
providing written notice to the other party. The termination shall be 
effective 60 calendar days following notice, unless the parties agree 
to a later date. Termination of this MOU does not relieve USACE of its 
statutory responsibility for protecting the environment or the health 
and safety of the public until NRC has reinstated the license and the 
licensee has taken control of the site and its hazardous substances.

Article VII--Effective Date

    This MOU shall become effective when signed by authorized officials 
of NRC and USACE.

    Dated: February 2, 2001.

U.S. Nuclear Regulatory Commission.

Martin J. Virgilio,
Director, Office of Nuclear Materials Safety and Safeguards, U.S. 
Nuclear Regulatory Commission.

    Dated: July 5, 2001.

U.S. Army Corps of Engineers.

Hans A. Van Winkle,
Major General, U.S. Army, Director, Civil Works, U.S. Army Corps of 
Engineers.
[FR Doc. 01-17452 Filed 7-11-01; 8:45 am]
BILLING CODE 7590-01-P