[Federal Register Volume 67, Number 206 (Thursday, October 24, 2002)]
[Notices]
[Pages 65375-65379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27125]



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NUCLEAR REGULATORY COMMISSION


Memorandum of Understanding Between the U.S. Environmental 
Protection Agency and the U.S. Nuclear Regulatory Commission; 
Consultation and Finality on Decommissioning and Decontamination of 
Contaminated Sites

AGENCY: Nuclear Regulatory Commission.

ACTION: Notice of issuance.

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SUMMARY: The Nuclear Regulatory Commission signed a Memorandum of 
Understanding (MOU) with the Environmental Protection Agency on the 
radiological decommissioning and decontamination of NRC-licensed sites. 
The MOU signed by NRC and EPA provides that EPA will defer exercise of 
authority under the Comprehensive Environmental Response, Compensation 
and Liability Act (Superfund) for the majority of facilities 
decommissioned under NRC authority. The MOU includes provisions for NRC 
and EPA consultation for certain sites when, at the time of license 
termination, (1) groundwater contamination exceeds EPA-permitted 
levels; (2) NRC contemplates restricted release or alternate criteria 
for release of the site; and/or (3) residual radioactive soil 
concentrations exceed levels defined in the MOU.

SUPPLEMENTARY INFORMATION: The MOU responds to a 1999 report from the 
House Committee on Appropriations that stated: ``in the interest of 
ensuring that sites do not face dual regulation, the Committee strongly 
encourages both agencies to enter into an MOU which clarifies the 
circumstances for EPA's involvement at NRC sites when requested by the 
NRC.'' The MOU also is responsive to a Government Accounting Office 
report issued in 2000. The MOU does not fully meet the intent of the 
Appropriations Committee because the threat of dual regulation remains 
for certain licensees. Thus, although the MOU reduces dual 
jurisdiction, the NRC will continue efforts to seek legislation that 
would eliminate the possibility of dual regulation of all NRC 
decommissioning licensees.
    The MOU does not impose any new requirements on NRC licensees and 
will reduce the involvement of EPA with NRC licensees who are 
decommissioning. Most sites are expected to meet the NRC criteria for 
unrestricted use, and NRC believes that only a few sites will have 
groundwater or soil contamination in excess of the levels specified in 
the MOU which trigger consultation with EPA. If there are other 
hazardous materials on the site, EPA may be involved in cleanup.

FOR FURTHER INFORMATION CONTACT: Patricia A. Santiago at (301) 415-
7269, e-mail: [email protected], or Eric Pogue at (301) 415-6064, e-mail: 
[email protected], Office of Nuclear Material Safety and Safeguards, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555, or Stuart Walker, 
Office of Emergency and Remedial Response, U.S. Environmental 
Protection Agency, Washington, DC 20555, telephone (703) 603-8748, e-
mail: [email protected].
    The MOU between the EPA and the NRC is entitled ``Consultation and 
Finality on Decommissioning and Decontamination of Contaminated Sites'' 
and is attached to this notice. The MOU was signed by the Administrator 
of the U.S. Environmental Protection Agency on September 30, 2002, and 
by the Chairman of the U.S. Nuclear Regulatory Commission on October 9, 
2002.

    Dated in Rockville, Maryland, this 17th day of October, 2002.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.

I. Introduction

    The Environmental Protection Agency (EPA) and the Nuclear 
Regulatory Commission (NRC), in recognition of their mutual commitment 
to protect the public health and safety and the environment, are 
entering into this Memorandum of Understanding (MOU) in order to 
establish a basic framework for the relationship of the agencies in the 
radiological decommissioning and decontamination of NRC-licensed sites. 
Each Agency is entering into this MOU in order to facilitate decision-
making. It does not establish any new requirements or rights on parties 
not subject to this agreement.

II. Purpose

    The purpose of this MOU is to identify the interactions of the two 
agencies for the decommissioning and decontamination of NRC-licensed 
sites and to indicate the way in which those interactions will take 
place. Except for section VI, addressing corrective action under the 
Resource Conservation and Recovery Act (RCRA), this MOU is limited to 
the coordination between EPA, when acting under its Comprehensive 
Environmental Response, Compensation and Liability act (CERCLA) 
authority, and NRC, when a facility licensed by the NRC is undergoing 
decommissioning, or when a facility has completed decommissioning, and 
the NRC has terminated its license. It continues a basic policy of EPA 
deferral to NRC decision-making in the decommissioning of NRC-licensed 
sites except in certain circumstances, and establishes the procedure to 
govern the relationship between the agencies in connection with the 
decommissioning of sites at which those circumstances arise.

III. Background

    An August 3, 1999, report (106-286) from the House Committee on 
Appropriations to accompany the bill accompany the bill covering EPA's 
FY 1999 Appropriations/FY 2000 budget request states:
    Once again the Committee notes that the Nuclear Regulatory 
Commission (NRC) has and will continue to remediate sites under its 
jurisdiction to a level that fully protects public health and safety, 
and believes that any reversal of the long-standing policy of the 
Agency to defer to the NRC for cleanup of NRC's licensed sites is not a 
good use of public or private funds. The interaction of the EPA with 
the NRC, NRC licensees, and others, with regard to sites being 
remediated under NRC regulatory requirements--when not specifically 
requested by the NRC--has created stakeholder concerns regarding the 
authority and finality of NRC licensing decisions, the duration and 
costs of site cleanup, and the potential future liability of parties 
associated with affected sites. However, the Committee recognizes that 
there may be circumstances at specific NRC licensed sites where the 
Agency's expertise may be of critical use to the NRC. In the interest 
of ensuring that sites do not face dual regulation, the Committee 
strongly encourages both agencies to enter into an MOU which clarifies 
the circumstances for EPA's involvement at NRC sites when requested by 
the NRC. The EPA and NRC are directed to report to the Committee on 
Appropriations no later than May 1, 2000, on the status of the 
development of such an MOU.
    Since September 8, 1983, EPA has generally deferred listing on the 
CERCLA National Priorities List (NPL) those sites that are subject to 
NRC's licensing authority, in recognition that NRC's actions are 
believed to be consistent with the CERCLA requirement to protect human 
health and the environment. However, as EPA indicated in the Federal 
Register notice announcing the policy of CERCLA deferral to NRC, if EPA 
``determines that sites which it has not listed as a matter

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of policy are not being properly responded to, the Agency will consider 
listing those sites on the NPL'' (see 48 FR 40658).
    EPA reaffirms its previous 1983 deferral policy. EPA expects that 
any need for EPA CERCLA involvement in the decommissioning of NRC 
licensed sites should continue to occur very infrequently because EPA 
expects that the vast majority of facilities decommissioned under NRC 
authority will be decommissioned in a manner that is fully protective 
of human health and the environment. By this MOU, EPA agrees to a 
deferral policy regarding NRC decision-making without the need for 
consultation except in certain limited circumstances as specified in 
paragraphs V.C.2 and V.C.3.
    One set of circumstances in which continued consultation should 
occur, pursuant to the procedures defined herein, relates to sites at 
which the NRC determines during the license termination process that 
there is radioactive ground-water contamination above certain limits. 
Pursuant to its License Termination rule, NRC applies a dose criterion 
that encompasses all pathways, including ground water. In its cleanup 
of sites pursuant to CERCLA, by contrast, EPA customarily establishes a 
separate ground-water cleanup standard in which it applies certain 
Maximum Contaminant Levels (MCLs, found at 40 CFR 141) promulgated for 
radionuclides and other substances pursuant to the Safe Drinking Water 
Act. NRC has agreed in this MOU to consult with EPA on the appropriate 
approach in responding to the circumstances at particular sites with 
ground-water contamination at the time of license termination in excess 
of EPA's MCLs or those sites for which NRC contemplates either 
restricted release or the use of alternate criteria for license 
termination, or radioactive contamination at the time of license 
termination exceeds the corresponding levels in Table 1 as provided in 
section V.C.2.

IV. Principles

    In carrying out their respective responsibilities, the EPA and the 
NRC will strive to:
    1. Establish a stable and predictable regulatory environment with 
respect to EPA's CERCLA authority in and NRC's decommissioning of 
contaminated sites.
    2. Ensure, to the extent practicable, that the responsibilities of 
the NRC under the AEA and the responsibilities of EPA under CERCLA are 
implemented in a coordinated and consistent manner.

V. Implementation

A. Scope

    This MOU is intended to address issues related to the EPA 
involvement under CERCLA in the cleanup of radiologically contaminated 
sites under the jurisdiction of the NRC. EPA will continue its CERCLA 
policy of September 8, 1983, which explains how EPA implements deferral 
decisions regarding listing on the NPL of any sites that are subject to 
NRC's licensing authority. The NRC's review of sites under NRC 
jurisdiction indicates that few of these sites have radioactive ground-
water contamination in excess of the EPA's MCLs. At those sites at 
which NRC determines during the license termination process that there 
is radioactive ground-water contamination above the relevant EPA MCLs, 
NRC will consult with EPA and, if necessary, discuss with EPA the use 
of flexibility under EPA's phased approach to addressing ground-water 
contamination. NRC has agreed in this MOU to consult with EPA on the 
appropriate approach in responding to the circumstances at particular 
sites where ground-water contamination will exceed EPA's MCLs, NRC 
contemplates either restricted release or the use of alternate criteria 
for license termination, or radioactive contamination at the time of 
license termination exceeds the corresponding levels in Table 1 as 
provided in Section V.C.2.

B. General

    Each agency will keep the other agency generally informed of its 
relevant plans and schedules, will respond to the other agency's 
requests for information to the extent reasonable and practicable, and 
will strive to recognize and ameliorate to the extent practicable any 
problems arising from implementation of this MOU.

C. NRC Responsibilities

    1. NRC will continue to ensure remediation of sites under its 
jurisdiction to a level that fully protects public health and safety.
    2. For NRC-licensed sites at which NRC determines during the 
license termination process that there is radioactive ground-water 
contamination in excess of EPA's MCLs, or for which NRC contemplates 
either restricted release (10 CFR 20.1403) or the use of alternate 
criteria for license termination (10 CFR 20.1404), NRC will seek EPA's 
expertise to assist in NRC's review of a decommissioning or license 
termination plan. In addition, NRC will consult with EPA if either the 
planned level of residual radioactive soil concentrations in the 
proposed action or the actual residual level of radioactive soil 
concentrations found in the final site survey exceed the radioactive 
soil concentration in Table 1. With respect to all such sites, the NRC 
will consult with EPA on the application of the NRC decommissioning 
requirements and will take such action as the NRC determines to be 
appropriate based on its consultation with EPA. For example, if NRC 
determines during the license termination process that there will be 
radioactive ground-water contamination in excess of EPA's MCLs at the 
time of license termination, then NRC will discuss with EPA the use of 
flexibility under EPA's phased approach for addressing ground-water 
contamination. If NRC does not adopt recommendations provided by the 
EPA, NRC will inform EPA of the basis for its decision not to do so.
    3. NRC will defer to EPA regarding matters involving hazardous 
materials not under NRC's jurisdiction.

D. EPA Responsibilities

    1. If the NRC requests EPA's consultation on a decommissioning plan 
or license termination plan, EPA will provide, within 90 days of NRC's 
notice to EPA, written notification of its views on the matter.
    2. Consistent with this MOU, EPA agrees to a policy of deferral to 
NRC decision making on decommissioning without the need for 
consultation on sites other than those presenting the circumstances 
described in sections V.C.2 and V.C.3. The agencies will consult with 
each other pursuant to the provisions of this MOU with respect to those 
sites presenting the circumstances described in sections V.C.2 and 
V.C.3. EPA does not expect to undertake CERCLA actions related to 
radioactive contamination at a site that has been decommissioned in 
compliance with the NRC's standards, including a site addressed under 
section V.C.2, despite the agencies decision to engage in consultation 
on such sites. EPA's deferral policy, and its expectation of not taking 
CERCLA action, continues to apply to sites that are covered under 
section V.C.2.
    3. For NRC-licensed sites presenting the circumstances described in 
section V.C.2 and for which NRC has not adopted the EPA recommendation, 
EPA will consult with NRC on any CERCLA actions EPA expects to take if 
EPA does not agree with the NRC's decision.
    4. EPA will resolve any CERCLA concerns involving hazardous 
substances outside of NRC's jurisdiction at NRC licensed sites, 
including concerns involving hazardous

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constituents that are not under the authority of NRC. As provided in 
section V.D.2, EPA under CERCLA will defer or consult with NRC as 
appropriate regarding matters involving AEA materials under NRC's 
jurisdiction.

E. Other Provisions

    1. Nothing in this MOU shall be deemed to establish any right nor 
provide a basis for any action, either legal or equitable by any 
person, or class of persons challenging a government action or failure 
to act.
    2. Each agency will appoint a designated contact for implementation 
of this MOU. The designated individuals will meet at least annually or 
at the request of either agency to review NRC-licensed sites that meet 
the criteria for consultation pursuant to section V.C.2. The NRC 
designated contact is the Director, Office of Nuclear Materials Safety 
and Safeguards, and the EPA designated contact is the Director, Office 
of Emergency and Remedial Response, or as each designee delegates.
    3. This MOU will remain in effect until terminated by the written 
notice of either party submitted six months in advance of termination.
    4. Within six months of the execution of this MOU, each party will 
revise its guidance to its Headquarters and Regional Offices to reflect 
the terms of this MOU.
    5. If differences arise that cannot be resolved by senior EPA and 
NRC management within 90 days, then either senior EPA or NRC management 
may raise the issue to their respective agency head.

VI. Corrective Action Under RCRA

    Some NRC sites undergoing decommissioning may be subject to cleanup 
under RCRA corrective action authority. This authority, administered 
either by EPA or authorized states, requires cleanup of releases of 
hazardous waste or constituents at hazardous waste treatment, storage 
or disposal facilities. NRC sites subject to RCRA corrective action 
will be expected to meet RCRA cleanup standards for chemical 
contamination within EPA's jurisdiction. EPA Office of Solid Waste's 
policy is to encourage regional and State program implementers to 
coordinate RCRA cleanups with decommissioning, as appropriate, at those 
NRC sites subject to EPA's corrective action authority.\1\
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    \1\ See letter from Elizabeth Cotsworth, Acting Director, Office 
of Solid Waste to James R. Roewer, USWAG, dated March 5, 1997.
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    EPA will continue to support coordination of cleanups under the 
RCRA corrective action program with decommissioning at NRC sites 
consistent with its March 5, 1997 policy. In addition, under RCRA the 
majority of States are authorized to implement the corrective action 
requirements. States are not signatories to this MOU; however, EPA will 
encourage States to act in accordance with this policy where they have 
responsibility for RCRA corrective action at NRC sites undergoing 
decommissioning.
    Items 1 and 3 of the ``Other Provisions'' of section V.E. apply to 
this section.

Dated: September 30, 2002.

Christine T. Whitman, Administrator, U.S. Environmental Protection 
Agency.

Dated: October 9, 20002.

Richard A. Meserve, Chairman, U.S. Nuclear Regulatory Commission.

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[FR Doc. 02-27125 Filed 10-23-02; 8:45 am]
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