[Federal Register Volume 76, Number 131 (Friday, July 8, 2011)]
[Proposed Rules]
[Pages 40282-40285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17165]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 76, No. 131 / Friday, July 8, 2011 / Proposed 
Rules  

[[Page 40282]]



NUCLEAR REGULATORY COMMISSION

10 CFR Parts 30 and 150

[NRC-2011-0146]


Proposed Generic Communications; Draft NRC Regulatory Issue 
Summary 2011-XX; NRC Regulation of Military Operational Radium-226

AGENCY: Nuclear Regulatory Commission.

ACTION: Notice of availability of draft Regulatory Issue Summary (RIS) 
for public comment.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is proposing to 
issue a RIS that clarifies those discrete sources of radium-226 under 
military control that are subject to NRC regulation pursuant to the 
Energy Policy Act of 2005 (EPAct), as interpreted in the policy 
statement issued by the NRC in the final rule, ``Requirements for 
Expanded Definition of Byproduct Material'' (72 FR 55864; October 1, 
2007), (hereinafter referred to as the NARM Rule). The clarification 
defines with greater specificity the term ``military operations'' as it 
is used to delineate that naturally-occurring and accelerator-produced 
radioactive material (NARM) subject to NRC jurisdiction. The RIS also 
describes acceptable regulatory approaches to adequately implement 
NRC's regulatory requirements for contamination and items and equipment 
containing NARM, and outlines a general plan of implementation for use 
with the military services. The NRC is seeking comment from interested 
parties on the clarity and utility of the proposed RIS.

DATES: Submit comments by September 6, 2011. Comments received after 
this date will be considered if it is practical to do so, but the NRC 
is able to assure consideration only for comments received on or before 
this date.

ADDRESSES: Please include Docket ID NRC-2011-0146 in the subject line 
of your comments. Comments submitted in writing or in electronic form 
will be posted on the NRC Web site and on the Federal rulemaking Web 
site, http://www.regulations.gov. Because your comments will not be 
edited to remove any identifying or contact information, the NRC 
cautions you against including any information in your submission that 
you do not want to be publicly disclosed.
    The NRC requests that any party soliciting or aggregating comments 
received from other persons for submission to the NRC inform those 
persons that the NRC will not edit their comments to remove any 
identifying or contact information, and therefore, they should not 
include any information in their comments that they do not want 
publicly disclosed. You may submit comments by any one of the following 
methods:
     Federal Rulemaking Web Site: Go to http://www.regulations.gov and search for documents filed under Docket ID NRC-
2011-0146. Address questions about NRC dockets to Carol Gallagher, 
telephone: 301-492-3668; e-mail: [email protected].
     Mail comments to: Cindy Bladey, Chief, Rules, 
Announcements, and Directives Branch (RADB), Office of Administration, 
Mail Stop: TWB-05-B01M, U.S. Nuclear Regulatory Commission, Washington, 
DC 20555-0001.
     Fax comments to: RADB at 301-492-3446.
    You can access publicly available documents related to this notice 
using the following methods:
     NRC's Public Document Room (PDR): The public may examine 
and have copied, for a fee, publicly available documents at the NRC's 
PDR, O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, 
Maryland 20852.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): Publicly available documents created or received at the NRC 
are available online in the NRC Library at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain entry into ADAMS, 
which provides text and image files of the NRC's public documents. If 
you do not have access to ADAMS or if there are problems in accessing 
the documents located in ADAMS, contact the NRC's PDR reference staff 
at 1-800-397-4209, 301-415-4737, or by e-mail to [email protected]. 
The draft RIS is available electronically under ADAMS Accession Number 
ML111510163.
     Federal Rulemaking Web Site: Public comments and 
supporting materials related to this notice can be found at http://www.regulations.gov by searching on Docket ID NRC-2011-0146.

FOR FURTHER INFORMATION CONTACT: Robert L. Johnson, Office of Federal 
and State Materials and Environmental Management Programs, Division of 
Waste Management and Environmental Protection, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, telephone: 301-415-3152, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Draft NRC Regulatory Issue Summary 2011-XXXX; NRC Regulation of 
Military Operational Radium-226

Addressees

    All U.S. Air Force and U.S. Navy Masters Materials License (MML) 
contacts; all U.S. Army contacts with specific NRC licenses; all 
Agreement State Radiation Control Program Directors and State Liaison 
Officers.

Intent

    The NRC is issuing this RIS to clarify which discrete sources of 
radium-226 under military control are subject to NRC regulation as 
byproduct material under the Atomic Energy Act of 1954, as amended 
(AEA) and as discussed in the NARM Rule. See ``Requirements for 
Expanded Definition of Byproduct Material'' (72 FR 55864; October 1, 
2007). The RIS describes regulatory approaches to implement NRC's 
authority for military contamination and items and equipment containing 
NARM. The guidance also outlines a general plan of implementation for 
use with the military services.

Background

    The EPAct expanded the AEA's definition of byproduct material to 
include discrete sources of radium-226, discrete sources of naturally 
occurring radioactive material, and accelerator-produced radioactive 
material for use for a commercial, medical, or research activity 
(collectively, these materials are referred to as NARM). The NRC has 
received recent inquiries from the military services regarding the 
scope of the NRC's jurisdiction over discrete

[[Page 40283]]

sources of radium-226 used by the military for military operations. 
Because it is necessary to distinguish between commercial, medical, and 
research uses covered by the EPAct and military uses not included in 
the expanded jurisdiction of the EPAct, the focus of this RIS is on how 
to categorize discrete sources used by the military. Specifically, 
Section 651(e)(3)(A) of the EPAct (Sec.  11e.(3) of the AEA; 42 U.S.C. 
2014(e)) amended the definition of byproduct material to include ``any 
discrete source of radium-226 that is produced, extracted, or converted 
after extraction, before, on, or after [August 8, 2005,] for use for a 
commercial, medical, or research activity.'' On November 30, 2007, NRC 
implemented this provision of the EPAct by amending the definition of 
byproduct material in 10 CFR parts 20, 30, 50, 72, 150, 170, and 171. 
See NARM Rule (72 FR 55864; October 1, 2007). Additionally, NRC 
established a definition for the term ``discrete source'' to be used 
for the purposes of the new definition of byproduct material as this 
term was not specifically defined by the EPAct. Accordingly, NRC's 
regulations in 10 CFR Parts 20, 30, 110, and 150 define a discrete 
source as ``a radionuclide that has been processed so that its 
concentration within a material has been purposely increased for use 
for commercial, medical, or research activities.'' In addition, the 
Statement of Consideration (SOC) for the NARM Rule noted that ``once a 
discrete source meets the definition of Byproduct material, any 
contamination resulting from the use of such discrete sources of this 
byproduct material will also be considered byproduct material'' (72 FR 
55871).
    Under the EPAct the NRC has jurisdiction over discrete sources of 
radium-226 used by the military in medical or research activities, or 
in a manner similar to a commercial activity; however, the NRC does not 
have jurisdiction over radium-226 used by the military in military 
operations because, as the NRC noted in the NARM Rule, to do otherwise 
would ``vitiate any distinction that the EPAct intended to make for 
military use * * *'' (72 FR 55867). In the SOC, the NRC defined the 
term ``military operations'' to include that which is traditionally 
understood as the military's primary mission for national defense, 
i.e., warfare, combat, battlefield missions, and training for such 
missions, as well as ``material still under control of the military, 
i.e., in storage, or material that may be subject to decontamination 
and disposal.'' Id.
    In accordance with the Commission's directives contained in the May 
14, 2007, staff requirements memorandum for the NARM Rule (SRM-SECY-07-
0062; M070514; ADAMS Accession No. ML071340237), the SOC provided that 
NRC would interact with the U.S. Department of Defense to obtain a 
common understanding of the uses of discrete sources of radium-226 and 
resolve any potential conflicts on a case-by-case basis. See also 72 FR 
55867. Consequently, the staff has had numerous interactions with the 
military services on this matter discussing the historical uses, 
current military activities, and management of discrete sources of 
radium-226. Through these interactions it has become apparent to the 
staff that there is confusion over the precise meaning and scope of the 
phrase ``material still under control of the military, i.e., in 
storage, or material that may be subject to decontamination or 
disposal.'' This confusion and uncertainty has led staff to believe 
that a generic solution is required in order to assure that NRC 
regulations are appropriately implemented.
    On February 16, 2011, the NRC staff prepared a Commission paper 
that discussed uses of military radium-226; identified issues; and 
recommended approaches to clarify and implement NRC's regulatory 
jurisdiction over certain types of radium-226 used by the military 
(SECY-11-0023; ADAMS Accession No. ML110110345). On March 24, 2001, the 
Commission responded to the staffs' recommendations in SECY-11-0023 by 
giving the following direction in SRM-SECY-11-0023 (ADAMS Accession No. 
ML110830952):

    The Commission has approved the staff's recommendation to 
prepare a guidance document and Federal Register notice that 
clarifies the radium-226 under military control that would be 
subject to NRC regulations, and describes the regulatory approaches 
to be used to implement NRC authority for radium-226 contamination 
and radium-226 in items and equipment.

Summary of Issue

    This RIS describes: (1) Jurisdictional issues; (2) clarification of 
military radium-226 that is subject to NRC regulation; (3) acceptable 
regulatory approaches to implement NRC's jurisdiction for contamination 
and items and equipment; and (4) a general plan for implementing NRC's 
jurisdiction.
Jurisdictional Issues
    As previously noted, the NRC expanded the category of radium-226 
excluded from NRC jurisdiction by defining the term ``military 
operational'' material to include ``material still under control of the 
military, i.e., in storage, or material that may be subject to 
decontamination or disposal'' (72 FR 55867). This expanded definition 
led to questions from the military and the State of California about 
NRC's jurisdiction over some of the military's ongoing and planned 
remediation activities. In particular, new issues emerged from the 
staff's discussions about the military's ongoing remediation activities 
at the Navy's Hunters Point Shipyard (HPS) site and the Air Force's 
McClellan site in California. After remediation, these sites or 
portions of these sites are planned to be released to the public for 
redevelopment, similar to other Base Realignment and Closure (BRAC) 
sites. The following key issues have been identified by the staff based 
on interactions with the military and the State of California.
     Potential for unnecessary dual regulation under the AEA 
and Comprehensive Environmental Response, Compensation, and Liability 
Act (CERCLA) and lack of finality of the military remediation if NRC is 
not involved during military remediation and before the transfer of 
remediated property to non-military owners;
     Potential for significant impacts to community 
redevelopment and reuse of remediated military property unless NRC is 
involved during remediation;
     Regulatory uncertainty and inconsistent understanding 
regarding NRC's jurisdiction unnecessarily complicates military 
remediation;
     Regulatory uncertainty regarding jurisdiction over storage 
and decontamination of equipment and items containing radium-226; and
     Potential implications for health and safety from the 
unregulated sites being remediated and the uncharacterized sites with 
suspected radium-226.
Clarification of Radium-226 Under Military Control That Should Be 
Subject to NRC Regulation
    Discrete sources of radium-226 under military control that would be 
subject to NRC regulation under the NARM Rule as byproduct material 
include:
     Contamination. Examples include contamination in 
structures; soil; groundwater; sewers or storm drains; targets and 
associated contamination on firing ranges; and degraded devices and 
residue from radium paint shops buried in landfills. NRC's jurisdiction 
applies to radium-226 contamination that has been confirmed based on 
survey data or records documenting the actual existence of the 
contamination. Contamination that is only suspected, based on 
historical activities conducted

[[Page 40284]]

on a military base, should be tracked and appropriately controlled by 
the military. These suspected sites should come under NRC's 
jurisdiction when confirmed. Contamination can be on active military 
installations where remediation has either not started or where parcels 
are being remediated. The military's remediation activities associated 
with contamination can also be on BRAC sites that are planned for 
transfer to the public and redeveloped by local governments or others 
after remediation (e.g., HPS and McClellan sites).
     Items or equipment not currently used in traditional 
military operations and no longer intended for future use in 
traditional military operations. Examples include vehicles, aircraft, 
or other equipment in storage that the military is no longer using and 
that is not intended to be used in the future and which could be 
decontaminated by removing radium-226 instruments, dials and/or 
components in preparation for release of the equipment or vehicles to 
the public. This could also be items such as dials or gauges that the 
military decides are no longer intended for future use in traditional 
military operations.
    This RIS resolves an existing ambiguity by clarifying that military 
radium-226 that originated from a commercial supplier is byproduct 
material, except during its use by the military in traditional military 
operations. When the commercially-produced radium-226 is no longer 
being used for traditional military operations and is not intended for 
future traditional military operational use, it would revert to its 
initial classification as byproduct material. Under this clarification, 
the SOC discussion that contamination resulting from degradation of 
byproduct material would also be considered byproduct material would 
therefore apply to military radium-226 contamination. For example, 
degradation of buried markers can result in contamination of the 
surrounding soil or groundwater. In addition, the storage of material 
or equipment not intended for future military operations, removal of 
dials and gauges after their usable life, and remediation of radium-226 
are similar to commercial activities and are consistent with the SOC 
statement ``that other military possession and uses of radium-226 in a 
manner similar to commercial use, e.g., military museums, are subject 
to NRC's regulatory authority.'' For the above reasons, the 
clarification is consistent with the definition of byproduct material 
in the EPAct and the NRC's regulations. Finally, as noted previously, 
the above clarifications are consistent with NRC's practice of 
regulating military radioactive material except when the material is 
used or useful in traditional military operations.
Regulatory Approaches for Contamination
    The NRC staff would use the graded approach outlined below for 
implementing NRC regulation of confirmed radium-226 contamination. This 
approach provides levels of regulatory involvement taking into account 
the broad range of site-specific conditions expected, such as: the 
radionuclides present; the type and extent of contamination; the 
remediation status and types of remedies; and other Federal agency or 
State oversight. This approach provides a flexible yet consistent 
framework for the military services. The NRC staff also considered 
other implementation issues as noted below.
    (1) No ongoing or planned remediation. Confirmed contamination on 
sites that are currently not being remediated or where remediation 
would be done in the future would be included as a possession-only 
permit under the existing Air Force or Navy MMLs or an Army possession-
only license under the appropriate regulations for the radionuclides 
present.
    (2) Remediation of National Priorities List (NPL) sites. For 
military remediation of sites listed on the NPL, NRC staff would use an 
approach similar to that approved by the Commission for the HPS site 
where NRC determined that it could rely on the CERCLA process and the 
Federal regulatory oversight by the U.S. Environmental Protection 
Agency (EPA) (SECY-08-0077; ADAMS Accession Nos. ML080800110 and 
ML081780111). These sites would not be actively regulated, although the 
Air Force and Navy sites would be permitted under the Air Force and 
Navy MMLs and the Army sites would be licensed. NRC would take a 
limited involvement approach to stay informed as it now does for the 
HPS site and the McClellan site. The Navy and Air Force would continue 
their existing role under CERCLA for these sites. However, NRC would 
reserve the option of providing comments to EPA on the military 
remediation, if necessary, to justify continued reliance on the CERCLA 
process and EPA oversight. If the NRC staff determines that the CERCLA 
process and EPA oversight is no longer sufficient, the NRC staff would 
more actively regulate the site as appropriate. The NRC staff 
considered the option of immediately regulating these sites, but 
prefers the approved approach for the HPS site because it would avoid 
or minimize dual regulation.
    (3) Remediation of non-NPL sites. NRC would actively regulate sites 
not listed on the NPL that are remediated by the military. Because EPA 
generally does not provide regulatory oversight for these sites, there 
would be no other independent Federal oversight of the remediation 
activities occurring on the non-NPL sites. Regulation would be 
conducted under the existing Navy and Air Force MMLs and under existing 
Army licenses or another appropriate licensing approach that would be 
established. The Navy and Air Force would permit these sites under the 
MML. NRC would continue its existing oversight of the Navy and Air 
Force MML programs, but would also review and approve key remediation/
decommissioning documents for more complex sites, such as sites with 
groundwater contamination or restricted use sites that use 
institutional controls and engineered barriers. Existing NRC oversight 
would continue for military contractors who have NRC service provider 
licenses and who conduct remediation activities. Furthermore, for those 
non-NPL sites where the military is required to remediate using the 
CERCLA process, NRC would coordinate its decommissioning process with 
the CERCLA process to minimize duplicative remedial activity. For those 
sites where remediation under the CERCLA process has already started, 
NRC would work with the military on a site-specific approach to ensure 
safety and minimize the impact on military schedules. Sites where 
remediation has been completed by the military would not be regulated 
unless newly acquired information indicates that additional remediation 
is needed to protect public health and safety and the environment.
    (4) Regulatory approaches for items and equipment. NRC would 
regulate military equipment decontamination activities and items in 
storage where the military has determined that there is no future 
traditional military operational use for this material. Regulation 
would be under the Navy and Air Force MMLs and either existing Army 
commodity licenses or another appropriate licensing approach.
    (5) General plan for implementing NRC's jurisdiction. The NRC staff 
intends to develop a Radium Implementation Plan to identify the 
specific actions and detailed guidance needed by NRC and the military 
to implement the jurisdiction and regulatory approach described above. 
The NRC staff is considering the

[[Page 40285]]

following general approaches for implementation:
     Work with each military service to customize actions and 
needs for guidance;
     Take a phased approach to implement NRC's jurisdiction, 
including an initial prelicensing/permitting phase to prepare for the 
licensing/permitting phase;
     Develop phased licensing/permitting jointly with the 
military services to minimize impact on the schedules for ongoing work;
     Select high priority sites identified by the military to 
serve as pilot sites to help develop detailed guidance. Also, identify 
high priority sites where NRC's attention is needed;
     Develop guidance to address questions and cases 
representative of each military service;
     Include guidance in the Air Force and Navy MML letters of 
understanding and guidance and similar documents developed for the 
Army;
     Interact with the Army to establish an appropriate 
licensing approach and guidance.
    Topics where additional guidance could be developed include:
     Application of NRC's decommissioning timeliness 
requirements;
     Coordination of the military's use of the CERCLA process 
and NRC's decommissioning process in order to protect the public and 
the environment and minimize dual regulation; and
     Identification of responsibilities of NRC, Air Force, and 
Navy under each MML.

Backfit Discussion

    This RIS requires no action or written response. Any action that 
addressees take to implement changes or procedures in accordance with 
the information contained in this RIS ensures compliance with current 
regulations, is strictly voluntary, and, therefore, is not a backfit 
under any of the backfitting provisions contained in 10 CFR 50.109, 
70.76, 72.62, 76.76, or the issue finality provision of 10 CFR part 52. 
Consequently, the staff did not perform a backfit analysis.

Federal Register Notification

    To be done after the public comment period.

Voluntary Response

    All addresses and the public may voluntarily submit comments 
regarding the military radium policy presented in this RIS. To be of 
use to the NRC, responses should be submitted by September 6, 2011.

Congressional Review Act

    This RIS is a rule as designated in the Congressional Review Act (5 
U.S.C. 801-886) and, therefore, is subject to the Act.

Paperwork Reduction Act Statement

    This RIS does not contain any information collection requirements 
and, therefore, is not subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a request for information or an information collection 
requirement unless the requesting document displays a currently valid 
OMB control number.

Contact

    This RIS requires no specific action or written response. If you 
have any questions about this summary, please contact the technical 
contact.
    Technical Contact: Robert L. Johnson, DWMEP/SPB, (301) 415-5143, e-
mail: [email protected].

    Note:  The NRC's generic communications may be found on the NRC 
public Web site, http://www.nrc.gov, under Electonic Reading Room/
Document Collections.

End of Draft Regulatory Issue Summary

    Dated at Rockville, Maryland this 24th day of June 2011.

    For the Nuclear Regulatory Commission.
Keith I. McConnell,
Deputy Director, Decommissioning and Uranium Recovery Licensing 
Directorate, Division of Waste Management and Environmental Protection, 
Office of Federal and State Materials and Environmental Management 
Programs.
[FR Doc. 2011-17165 Filed 7-7-11; 8:45 am]
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