Sequoyah Fuels Corporation; Issuance of Director's Decision Under 10 CFR Part 2.206

NUCLEAR REGULATORY COMMISSION

[Docket No. 40-8027]

Sequoyah Fuels Corporation; Issuance of Director's Decision Under

10 CFR Part 2.206

I. Introduction

Notice is hereby given that the Director, Office of Nuclear

Material Safety and Safeguards, U.S. Nuclear Regulatory Commission

(NRC) has issued a Director's Decision under 10 CFR 2.206 regarding the

Sequoyah Fuels Facility in response to a petition received from Ms.

Diane Curran (Petitioner), dated March 14, 1995, on behalf of the

Native Americans for a Clean Environment. (NACE) The petition also

considered a subsequent letter from Petitioner dated March 31, 1995.

The petition was referred to the staff for consideration pursuant

to 10 CFR 2.206 of the Commission's regulations. For the reasons stated

in the enclosed ``Director's Decision under 10 CFR 2.206,'' items 1, 3,

and 4 of the Petition have been denied, and item 2 is moot.

Native Americans for a Clean Environment (NACE) submitted to the

Nuclear Regulatory Commission (NRC), a ``Petition for an Order

Requiring Sequoyah Fuels Corporation to File a Final Site

Characterization Plan (SCP) and for an Order to Obtain a License

Amendment'' (Petition) dated March 11, 1995. NACE requested NRC to take

action with respect to the Sequoyah Fuels Corporation (SFC or Licensee)

pursuant to 10 CFR 2.206. The Petitioner requests that NRC:

(1) Reverse the NRC staff's decision to permit SFC to proceed with

site characterization without submitting a final Site Characterization

Plan (SCP), by issuing an Order or a Confirmatory Action Letter

obliging SFC to submit a final SCP by a date certain;

(2) Obtain a copy of the Environmental Protection Agency's (EPA)

title search or perform a title search of all property used in

connection with the SFC license, in order to clarify the identity and

ownership of all property subject to NRC License No. SUB-1010;

(3) Issue an order forbidding SFC, Sequoyah Fuels International

Corporation, Sequoyah Holding Corporation, or any other associated

corporation that holds title to property under NRC License No. SUB-1010

from transferring any interest in any of its property before SFC

applies for and receives a license amendment authorizing transfer; and

(4) Before issuing any such license amendment, find reasonable

assurance that any entity acquiring an interest in the SFC property

fully understands the nature of the liabilities and responsibilities it

is undertaking for cleanup and long-term care of the site and that it

has the financial capability to carry out those responsibilities.

The Petition alleges the following bases for its requests:

(1) The NRC staff illegally and improperly excused SFC from its

obligation to submit a final SCP;

(2) SFC is presenting a ``Trust Indenture'' to several towns and

the county of Sequoyah for the creation of an industrial park;

(3) Neither SFC's letter to Mr. Main (Secretary of Commerce,

Oklahoma Department of Commerce), the Fact Sheet, nor the Trust

Agreement, itself, refers to the fact that SFC has been ordered by NRC

and EPA to characterize the extent of the contamination in the 1,400

acres that surround the 85-acre processing area, the focus of site

characterization and remediation efforts; nor do those documents refer

to the other sources of potential contamination, consisting of

groundwater migration from the admittedly contaminated processing area,

effluent streams and ditches, and the Carlisle School (located on the

land proposed for an industrial park, and used by SFC as a laboratory);

(4) The Trust Indenture depicts the 1,400 acres of land subject to

NRC License No. SUB-1010 as the candidate area for the industrial park;

SFC has made conflicting representations regarding the size of the

``facility'' or ``site'' to NRC and in the Trust Indenture. SFC

responded to the Petition by a letter dated March 29, 1995, and

requests that the Petition be denied in all respects.

By letter dated March 31, 1995, NACE supplemented its Petition.

NACE states that SFC is conducting site characterization by utilizing

the EPA Facility Investigation Workplan (FIW), which was prepared for

the EPA pursuant to requirements of the Resource Conservation and

Recovery Act (RCRA). Petitioner asserts that by relying on the FIW to

conduct site characterization, SFC has neither understood nor

implemented NRC staff criticisms of the draft SCP. Petitioner asserts

that NRC should require SFC to submit a written final SCP because the

FIE does not:

(1) Resolve NRC comments related to site hydrogeology and vertical

and lateral contamination;

(2) Resolve NRC sample density concerns; or

(3) Provide for characterization of the DUF4 processing,

decorative pond, and parking lot areas.

By letter dated May 10, 1995, the Director, Office of Nuclear

Material Safety and Safeguards acknowledged receipt of the Petition,

and informed the Petitioner that the Petition would be evaluated under

10 CFR 2.206 of the Commission's regulations.

I have completed my evaluation of the matters raised by the

Petitioner and have determined that, for the reasons stated below, the

Petition is denied in part, was satisfied in part, and NRC regulations

address the Petitioner's concerns related to the requests for issuance

of orders related to transfer of property.

II. Background

From 1970 until July 6, 1993, SFC operated a uranium conversion

facility at a site located in Gore, Oklahoma, under the authority of

NRC License No. SUB-1010, issued pursuant to 10 CFR Part 40. The main

process was the conversion of uranium oxide (yellowcake) to uranium

hexafluoride. A second process, initiated in 1987, consisted of the

conversion of depleted uranium hexafluoride to uranium tetrafluoride,

the first step in producing depleted uranium metal.

After the discovery of contaminated soil surrounding structures

used by SFC for its licensed activities, NRC staff issued an order

suspending SFC's authorization to operate its conversion facilities.

See ``Order Modifying License (Effective Immediately) and Demand for

Information,'' EA 91-067 (October 3, 1991). After studies by SFC,

operational and organizational changes by SFC, extensive NRC

inspections, and several public meetings, NRC, on April 16, 1992,

lifted the order suspending the SFC license and authorized SFC to

resume operation of its conversion facility.

[[Page 55385]]

In November 1992, SFC (and subsequently in writing) informed NRC

that operation of its main process for the conversion of uranium oxide

(yellowcake) to uranium hexafluoride was permanently terminated and

that the second process, the conversion of depleted uranium

hexafluoride to uranium tetrafluoride, would be terminated by July

1993. SFC formally notified NRC of its intentions to terminate all

conversion processes and seek license termination in accordance with 10

CFR 40.42(e), in a letter dated February 16, 1993. In addition, a

proposed plan to address decommissioning issues related to the SFC

facility, entitled ``Preliminary Plan for Completion of Decommissioning

(PPCD),'' was enclosed in its letter of February 16, 1993.

By letter dated March 23, 1993, NRC staff notified SFC that its 10

CFR 40.42(e) notification had been accepted, and that activities at the

site should be limited to those related to decommissioning. By letter

dated July 7, 1993, SFC notified NRC staff that SFC had ceased all

operational licensed activities. Since that time, SFC has restricted

its activities to disposal of contaminated material and planning for

decommissioning.

On August 4, 1993, SFC and EPA Region VI signed an Administrative

Order on Consent (AOC), establishing a schedule for compliance with

Section 3008(h) of the Solid Waste Disposal Act, as amended by the

RCRA, as further amended by the Hazardous and Solid Waste Amendments of

1984, 42 USC 6928(h). The AOC required SFC to perform a number of tasks

aimed at monitoring site conditions, site characterization, corrective

measures, and financial assurance. A key element of the AOC is the RCRA

Facility Investigation (RFI) Workplan. The RFI Workplan data needs

closely parallel those of an NRC SCP. For SFC's site, both the RFI

Workplan and the SCP involve characterization of much of the same

property. The major difference between the RFI Workplan and the SCP

rests only on the constituents that are analyzed (nonradioactive

materials for EPA and radioactive materials for NRC).

Common to both plans is the characterization of the soil, bedrock,

and groundwater underlying the site. SFC agreed to drill a series of

wells to the next lower water-bearing strata to better define the

geology underlying the site and to sample for contamination. These

wells are in addition to the 100 wells previously install by SFC at the

site. Whether or not the deeper wells planned by SFC to address EPA

concerns will also satisfy NRC concerns related to the vertical extent

of radiological contamination will have to await the evaluation of

sample analyses.

To avoid unnecessary duplicative regulatory actions, EPA and NRC

drafted a site-specific Memorandum of Understanding (MOU). Under the

terms of this MOU, EPA and NRC will exchange pertinent documents, keep

each other informed of planned actions, and, to the extent possible,

coordinate major characterization and remediation tasks on similar

schedules. The MOU was signed by EPA on September 21, 1995, and by NRC

on September 25, 1995.

SFC submitted to EPA a draft RFI Workplan in January 1994. EPA

reviewed the draft RFI Workplan and provided SFC comments in a letter

dated August 25, 1994. Based on the comments provided by EPA, SFC made

changes to the draft RFI Workplan and a final Workplan was approved by

EPA in December 1994. In accordance with the requirements of the AOC,

SFC must submit a final RFI Report to EPA by December 1995.

SFC submitted a draft SCP to NRC in January 1994. Interested

persons, including EPA, the United States Geological Survey (USGS), and

NACE reviewed the draft SCP and provided comments to NRC. Consistent

with the staff's commitment to NACE, in a letter from J.H. Austin (NRC)

to D. Curran (NACE), dated December 9, 1993, to keep NACE involved in

the review process, the NACE comments were discussed with

representatives of NACE, NRC and SFC in a May 31, 1994, meeting.

NRC staff performed an extensive review of the draft SCP and of all

the comments regarding the draft SCP. Where appropriate, NRC staff

factored those comments into NRC staff's comments, which were

transmitted to SFC by letter dated November 3, 1994. The essence of NRC

staff's comments was that SFC must do substantially more sampling than

proposed in the draft SCP. Additional sampling is necessary to reliably

identify the types and extent of contamination on and around the SFC

site. NRC staff requested that SFC address the staff's comments, or

provide the basis for not making changes to the SCP.

In its November 1994 quarterly report to EPA, required by the AOC,

SFC raised concerns related to possible duplication of SFC's

decontamination and decommissioning efforts that could result in

unnecessarily increased costs.

In January and February 1995, NRC staff engaged in technical

discussions with SFC regarding the November 3, 1994, comments of the

staff concerning the draft SCP. The discussions covered a broad range

of issues related to site characterization and scheduling.

By letter dated February 5, 1995, the Director, Division of Waste

Management, Office of Nuclear Material Safety and Safeguards, confirmed

NRC staff's understanding of SFC's verbal commitment, by telephone in

early February 1995, to use NRC staff's comments of November 3, 1994,

during site characterization and in SFC's preparation of its Site

Characterization Report (SCR). Furthermore, NRC agreed with SFC that

the schedule for the SCR should parallel that for the RFI Report, in

order to minimize possible redundancy and associated costs, and to

facilitate the effective utilization of SFC resources. Accordingly, NRC

gave SFC a due date of January 15, 1996, for submission of a draft SCR.

The staff also reminded SFC that NRC may establish legally binding

requirements, if necessary, to ensure timely and effective remediation

of Site Decommissioning Management Plan (SDMP) sites. The SFC facility

is an SDMP site. In its March 29, 1995, response to the Petition, SFC

again committed to address the NRC's comments on the SCP during conduct

of the site characterization effort. SFC confirmed its understanding of

the staff's November 3, 1994, comments by a letter dated June 2, 1995,

in which SFC again committed to incorporate those staff comments into

its SCR.

III. Discussion

A. Petitioner Requests That NRC Staff Reverse Its Decision To Permit

SFC To Proceed With Site Characterization Without Submitting a Revised

SCP, by Issuing an Order or Confirmatory Action Letter Requiring SFC To

Submit a Written Final SCP

Petitioner contends that by not requiring SFC to submit a written

final SCP, NRC staff illegally and improperly excused SFC from its

obligations in violation of the:

(a) Timeliness in Decommissioning Rule;

(b) NRC's ``Action Plan to Ensure Timely Cleanup of Site

Decommissioning Management Plan Sites'' (Action Plan), 57 Fed. Reg.

13389 (April 16, 1992);

(c) NRC's December 29, 1992, Demand for Information to SFC;

(d) MOU between NRC and EPA; and

(e) NRC's commitments to Petitioner in a letter dated December 9,

1993, that SFC would be required to demonstrate how it would sample all

potentially contaminated areas as part of the SCP.

NRC staff weighed the potential benefits, and the increased costs

of and

[[Page 55386]]

delays in decommissioning, of requesting SFC to revise its draft SCP in

accordance with NRC staff comments, which SFC understood and had

already agreed to incorporate into the site characterization process

and SCR. NRC staff concluded that the objectives of site

characterization could be met, and data appropriate to support a

proposed decommissioning alternative could be produced, if NRC staff's

comments were implemented during site characterization. NRC staff's

action was intended to avoid potentially costly delays in

decommissioning and to prevent duplication of regulatory actions, based

on work already underway as a part of the EPA-approved RFI Workplan.

Additionally, the staff's action was consistent with agency efforts

to streamline the Site Decommissioning Management Plan (SDMP)

regulatory review process.1 The SFC site is an SDMP site. This

streamlining involves, among other things, discontinuance of NRC staff

review of SCPs and SCRs prior to the submittal of decommissioning

plans. Site characterization information will be considered by NRC

staff in its review of decommissioning plans. NRC regulations do not

require the submission of SCPs or SCRs, but do require site

characterization data to be submitted with the decommissioning plan.

See 10 CFR 40.42(f)(4)(i). Streamlining the SDMP process is consistent

with NRC regulations.

\1\ On May 19, 1995, the NRC staff briefed the Commission on

SDMP Policy and Program issues, including the staff's implementation

of streamlining. 10 CFR 40.42(f)(4)(i). Streamlining the SDMP

process is consistent with NRC regulations.

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Streamlining promotes a more coordinated and focused review of the

licensee's characterization information and place greater emphasis on

issues that affect the selection and implementation of a

decommissioning approach.

Contrary to Petitioner's assertion, NRC staff's action was

consistent with the Timeliness in Decommissioning rule. Those

amendments to NRC regulations establish specific time periods for

submission of a decommissioning plan and completion of decommissioning,

and were intended to reduce potential risk to public health and the

environment at facilities after licensed activities have ceased. See

``Timeliness in Decommissioning of Materials Facilities,'' 59 Fed. Reg.

36026 (July 15, 1994). The staff's February 5, 1995, letter allowed SFC

to proceed with site characterization on the condition that SFC include

in its SCR the staff's November 3, 1994, comments regarding the draft

SCP. The staff determined that inclusion of those comments would

produce adequate site characterization and would reduce delay. Although

site characterization and the data derived during site characterization

are necessary inputs to a decommissioning plan, 2 SCPs and SCRs

are not expressly required by NRC regulations. The staff did not

release SFC from the ``timeliness'' rule or from the requirement to

submit a decommissioning plan. See 10 CFR 40.42(f)(1). The staff's

action reduced potential delays in site characterization and

decommissioning, and cannot be considered to have contributed to any

delay in SFC's decommissioning the SFC site.

\2\ The licensee's decommissioning plan must include a

description of the site, buildings, and outside areas affected by

licensed activities. 10 CFR 40.42(f)(4)(i).

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Contrary to being in violation of the NRC's Action Plan, NRC

staff's February 5, 1995, letter to SFC was consistent with the plan.

The Action Plan was intended to encourage compliance with NRC

timeliness in decommissioning regulations. The Action Plan is not

itself a rule and contains no enforceable standards. The Action Plan

refers to submittal of an SCP, but does not require NRC approval. The

Action Plan encourages licensees to enter into early consultation with

NRC staff regarding site characterization and decommissioning issues.

Such consultation is intended to address site-specific conditions to

ensure that site characterization is appropriately planned and

conducted, and of sufficient depth to support a selected

decommissioning option. Consistent with the Action Plan, NRC staff

engaged in site-specific technical discussions with SFC regarding not

only NRC's comments on the draft SCP, but also the comments of NACE,

the USGS and EPA. See Section II, supra. The NRC staff's February 5,

1995, letter to SFC was consistent with the Action Plan, and cannot be

considered to have contributed to any delay in compliance with

timeliness requirements for decommissioning, for the same reasons that

the staff's action was consistent with the Timeliness in

Decommissioning Rule.

Petitioner does not explain, nor is it apparent how, the NRC

staff's February 5, 1995, letter contravened the December 29, 1992,

Demand for Information (DFI) to SFC. As Petitioner notes, the February

13, 1993, Preliminary Plan for Decommissioning, submitted by SFC in

response to the DFI, commits SFC to submission of an SCP to NRC and to

implementation of the SCP by early 1994. The staff in its February 5,

1995, letter did not delay the submission or implementation of the SCP.

To the contrary, the staff permitted SFC to proceed expeditiously with

an SCP which NRC had reviewed and considers adequate, as long as the

staff's November 3, 1994, comments are incorporated, which SFC has

undertaken to do.

Contrary to Petitioner's assertion, NRC staff's action in its

letter of February 5, 1995, did not violate the (then draft) MOU

between NRC and EPA. The then draft MOU, as well as the final MOU,

state that NRC will ensure that SFC develops and implements an SCP,

which NRC staff has done. Moreover, in the spirit of the EPA and NRC

site-specific MOU, NRC and EPA have worked together to avoid

unnecessary duplicative regulatory actions and their attendant costs.

Specifically, after consultation with the EPA, NRC staff agreed in its

February 5, 1995, letter to SFC's request that the schedule for site

characterization and submission of the SCR should parallel that of the

EPA RFI Workplan. The development of the EPA MOU and NRC MOU was a

major consideration in NRC staff's action allowing SFC to proceed with

site characterization and to incorporate NRC staff's comments in the

SCR, rather than to require submission of yet another version of the

SCP.

Contrary to the Petitioner's assertions, NRC staff's action by its

letter of February 5, 1995, did not violate NRC's commitments to

Petitioner, made in a letter dated December 9, 1993, that SFC would be

required to demonstrate how it would sample all potentially

contaminated areas as part of the SCP. The December 9, 1993, letter

also stated that NACE's concerns would be addressed during NRC staff's

review of the SCP.

NRC staff met these commitments to NACE. NACE reviewed the SFC

draft SCP and provided comments to NRC staff. NACE's comments were

discussed in a meeting on May 31, 1994, with representatives from NACE,

NRC, and SFC. All applicable NACE comments were incorporated into NRC

staff's comments and transmitted to SFC by letter dated November 3,

1994. SFC verbally committed, by telephone in early February 1995, to

use NRC staff's comments of November 3, 1994, during site

characterization and in SFC's preparation of its SCR. SFC confirmed its

understanding of the staff's November 3, 1994, comments by a letter

dated June 2, 1995, in which SFC again committed to incorporate those

staff comments into its SCR. Accordingly,

[[Page 55387]]

contrary to Petitioner's assertion, there is no basis to conclude that

NACE's concerns will not in fact be addressed. Moreover, NRC remains

committed to ensuring that SFC conduct a complete and accurate

characterization of all radiological contamination on the SFC site and

on property affected by SFC's licensed activities, through reviews of

SFC's SCR and a subsequent decommissioning plan.

By letter dated March 31, 1995, NACE supplemented its Petition.

NACE states that SFC is conducting site characterization by utilizing

the RCRA Facility Investigation Workplan. Petitioner asserts that by

relying on the EPA Workplan to conduct site characterization, SFC has

neither understood nor implemented NRC staff criticisms of the draft

SCP. Petitioner asserts that NRC should require SFC to submit a written

final SCP because the EPA Workplan does not:

(1) Resolve NRC comments related to site hydrogeology and vertical

and lateral contamination;

(2) Resolve NRC sample density concerns; or

(3) Provide for characterization of the DUF4 processing,

decorative pond, and parking lot areas.

As explained above, NRC staff concluded after a series of

discussions with SFC, that SFC does understand the staff's November 3,

1994, comments regarding the draft SCP. Moreover, SFC has committed

itself to incorporating those staff comments during site

characterization and in the SCR. In addition, NRC staff concludes,

after review of the EPA-approved RFI Workplan, that:

(a) The approved RFI Workplan adequately addresses NRC comments

regarding questions of hydrogeology and the vertical and lateral extent

of contamination;

(b) The RFI Workplan, draft SCP, and the SFC commitment to

incorporate NRC staff's comments on the draft SCP into site

characterization activities will together ensure adequate sampling for

site characterization; and

(c) The SCP, provides for adequate characterization of the

DUF4 processing area (Unit 29), the decorative pond (Unit 26), and

parking lot (Unit 31) (see Figure 2 of the SCP).

NRC staff has neither violated, nor excused SFC from complying

with, any NRC regulatory requirements, the MOU between NRC and EPA, any

NRC staff commitments to Petitioners, or the December 29, 1992, DFI to

SFC. Petitioner has raised no health and safety concern arising from

NRC staff's action by letter of February 5, 1995, permitting SFC to

address and implement the staff's November 3, 1994, comments during

site characterization and in the SCR. Additionally, the staff's action

was consistent with agency efforts to streamline the SDMP review

process. Furthermore, to require submission of a written final SCP

would unnecessarily delay decommissioning of the SFC site and unduly

raise the costs of decommissioning.

In view of the above, there is no basis to require SFC to submit a

written final SCP.

B. Petitioner Requests That NRC Obtain From EPA a Copy of Its Title

Search or Perform a Title Search of all Property Used in Connection

With the SFC License

By letter dated April 20, 1995, Mark W. Potts (EPA Region VI),

provided to Lance Hughes, on behalf of NACE, a copy of a document

entitled ``Preliminary Property Search Document; Sequoyah Fuels

Corporation; Gore, Oklahoma.'' The document is dated July 26, 1994, and

was prepared by PRC Environmental Management, Inc. for EPA. The

document identifies SFC as the sole owner of the 85-acre process area

of the Sequoyah Fuels facility and the approximately 2,100 acres of

land surrounding the facility. A copy of this report has been placed in

the SFC licensing docket and is available through either NRC's Public

Document Room (PDR) at 2120 L St. NW., Washington, DC 20037, or the

local PDR (LPDR) at the Stanley Tubbs Memorial Library, 101 E.

Cherokee, Sallisaw, OK 21801.

Petitioner has identified no inconsistencies between the Trust

Indenture and any representations to NRC regarding the size of the

``facility'' or ``site''. The land subject NRC license SUB-1010 is

principally the 85-acre site along with any adjacent lands that have

been affected by licensed activities.\3\ The copy of a ``Trust

Indenture'' submitted by Petitioners neither describes the SFC facility

or site, nor does it describe any lands subject to the Trust

Indenture.\4\ Article V merely identifies the Trust Estate as all

property coming into the possession of the trustees pursuant to the

Trust Indenture. The enclosure to a letter dated August 18, 1994, from

John Ellis, President, SFC, to the Oklahoma Department of Commerce,

both of which were attached to the Petition, describes the proposed

industrial park as a site of 1,430 acres on the east bank of the Kerr-

McClelland Waterway. Clearly the proposed industrial park surrounds or

includes, in part, the SFC site, but is not identified by the Trust

Indenture as all or part of the property subject to NRC License No.

SUB-1010.

\3\ Licensed activities do not include raffinate spreading

because the treated raffinate is released for unrestricted use prior

to spreading. However, if NRC determined that treated raffinate

spreading significantly affected adjacent lands, then NRC would

consider the need for additional characterization and remediation.

\4\ SFC denies having contributed any corporate resources to

drafting or developing the proposed Trust Indenture or in

circulating it to local communities, but states that it has openly

pursued development of an industrial park with local and state

officials to replace jobs lost as a result of closing the SFC plant.

SFC states that a local community group, SAFEST, has been working on

the Trust Indenture with the Sequoyah County Commission. See Letter

of John H. Ellis, President, SFC, dated March 29, 1995, to James M.

Taylor, Executive Director for Operations, NRC.

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Petitioners have not raised a safety concern regarding the identity

and ownership of lands subject to NRC License No. SUB-1010. Moreover,

because EPA provided a copy of its title search the Petitioner's

request has been satisfied.

C. Petitioner Requests That, Before Permitting Transfer of Land Subject

to License No. SUB-1010, NRC Find Reasonable Assurance That Any Entity

Acquiring an Interest in the SFC Property Fully Understands the Nature

of the Liabilities and Responsibilities It Is Undertaking for Cleanup

and Long-term Care of the Site and That It Has the Financial Capability

to Carry Out Those Responsibilities

NRC regulations at 10 CFR 40.42(c)(2) and 40.42(d), and License

Condition No. 14 of NRC License No. SUB-1010, require that any real

property subject to the License or affected by licensed activities must

be remediated by SFC in accordance with an approved decommissioning

plan, such that the property is suitable for release in accordance with

NRC requirements. This means that SFC may not transfer nor release, by

sale or any other means, property subject to NRC License No. SUB-1010,

or property affected by SFC's licensed activities, until SFC remediates

such property and SFC demonstrates that the property meets NRC criteria

for release.

It is not apparent from the NACE Petition, and no information has

come to the attention of NRC staff to indicate, that there has been a

transfer of any real property subject to or affected by activities

conducted pursuant to NRC License No. SUB-1010. It does appear that

several local governmental authorities, including Sequoyah County and

the cities of Gore, Vian and Webbers Falls, have entered into an

agreement to participate in the proposed Trust Indenture.

[[Page 55388]]

In its response to the Petition, SFC committed to inform NRC of any

proposal SFC receives for transfer of property adjacent to the

industrial area, before SFC acts on any such proposal. SFC also states

that at some future time, SFC may dispose of real property unaffected

by licensed operations at the SFC facility, and would do so only after

notifying NRC. In the case of affected areas, SFC states that it will

dispose of such property that has been released by NRC, after SFC

demonstrates that appropriate criteria have been met.

Before real property used in connection with or affected by

activities conducted pursuant to NRC License No. SUB-1010 could be

transferred to a person without authority to engage in NRC-licensed

activities, that property must be decommissioned to meet the criteria

for release for unrestricted use. See 10 CFR 40.4 and 40.42, and

License SUB-1010, Condition 14. Since the proposed Trust Indenture

would involve the transfer of land for the purposes of an industrial

park, it appears that the potential transferees have no plan to engage

in NRC-licensed activities. Thus, the decommissioning criteria for

release of such property would be for unrestricted use.\5\ If SFC were

to decommission property used in connection with its licensed

activities to meet NRC criteria for release for unrestricted use, the

transferee would assume no obligation to remediate or to engage in

long-term care of such property, and NRC would have no regulatory

authority over the transfer of or the transferees of such property.

\5\ The Commission is currently evaluating proposed changes to

the rules governing release criteria. See ``Radiological Criteria

for Decommissioning,'' 59 Fed. Reg. 43200 (August 22, 2994). SFC

will have to comply with all NRC requirements for release to

unlicensed individuals under any revised rules.

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If property used in connection with activities conducted pursuant

to NRC License No. SUB-1010 were transferred to a person who seeks

authority to engage in NRC-licensed activities, including

decommissioning activities such as remediation or long-term care, SFC

would be required to obtain written permission from NRC prior to the

transfer. See 10 CFR 40.46. At that time, it would be appropriate for

NRC to ensure that the transferee is capable of meeting NRC

requirements for decommissioning and all other applicable licensing

requirements and the transferee must obtain an NRC license. In view of

the above, Petitioners concerns about the potential transfer of

property to the Trust and state, and potential transferees of such

property, are adequately addressed by applicable regulations.

D. Petitioner Requests That NRC Staff Issue an Order Forbidding SFC,

Sequoyah Fuels International Corporation, Sequoyah Holding Corporation,

or Any Other Associated Corporation That Holds Title to Property

Subject to NRC License No. SUB-1010, From Transferring Any Interest in

Such Property Before SFC Applies for and Receives a License Amendment

Authorizing Such a Transfer

As explained above, SFC owns the land subject to NRC License No.

SUB-1010. Before SFC may transfer or release any property used in

connection with, or affected by, its licensed activity to a person not

authorized to engage in NRC-licensed activity, that property must be

remediated in accordance with an approved decommissioning plan to meet

NRC criteria for release for unrestricted use. See Section III.C,

supra. There is no NRC requirement that a licensee obtain NRC

permission to transfer property which has been remediated to meet NRC's

criteria for release for unrestricted use.

If SFC were to transfer property subject to the license or affected

by licensed activity to persons for the purpose of engaging in licensed

activity, 10 CFR 40.46 requires that SFC obtain written permission from

NRC before transferring such property and the transferees must obtain

an NRC license. Petitioners, however, have provided no evidence that

such a transfer is contemplated or imminent.

Petitioners have raised no safety concern regarding a potential

transfer of property used in connection with or affected by activities

pursuant to NRC License No. SUB-1010, or potential transferees of such

property. See Section III.C., supra. Moreover, since protection of the

public health and safety, in the event of a transfer of such property

to the proposed Trust Indenture, is already accomplished by NRC

regulations, there is no justification to issue the requested order.

IV. Conclusion

The institution of proceedings pursuant to 10 CFR 2.202 is

appropriate only where substantial health and safety issues have been

raised. See Consolidated Edison Company of New York (Indian Point,

Units 1, 2, and 3), CLI-75-8, 2 NRC 173, 175-176 (1975); Washington

Public Power Supply Systems (WPPSS Nuclear Project No. 2), DD-84-7, 19

NRC 899 (1984). This is the standard I have applied to determine

whether the action requested by Petitioner is warranted. For the

reasons given above, Petitioner's request that SFC ordered to submit a

written final SCP by a date certain is denied. Petitioner's request

that NRC perform a title search of property subject to NRC License No.

SUB-1010 was satisfied. Action on Petitioner's request for an order

forbidding the transfer of any interest in land subject to NRC License

No. SUB-1010 before SFC applies for and receives a license amendment

permitting such transfers is unnecessary because applicable regulations

address Petitioners concerns. Likewise, Petitioner's request that,

before granting such a license amendment application, NRC ensure that

potential purchasers of property be subject to NRC License No. SUB-1010

to fully be apprised of their obligations for site remediation and

long-term care and that NRC ensure such potential purchasers are

financially qualified to do so, is unnecessary because applicable

regulations address Petitioner's concerns.

As provided by 10 CFR 2.206(c), a copy of this Decision will be

filed with the Secretary of the Commission for the Commission's review.

The Decision will become 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 23 day of October, 1995.

For the Nuclear Regulatory Commission.

Carl J. Paperiello,

Director, Office of Nuclear Material Safety and Safeguards.

[FR Doc. 95-26937 Filed 10-30-95; 8:45 am]

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