Issuance of Directors Decision Under 10 CFR 2.206

NUCLEAR REGULATORY COMMISSION

Issuance of Directors Decision Under 10 CFR 2.206

Notice is hereby given that by petition dated October 15, 1998, the

Natural Resources Defense Council (NRDC) has requested that the U.S.

Nuclear Regulatory Commission (NRC) exert authority to ensure that the

U.S. Army Corps of Engineers' (the Corps) handling of radioactive

materials in connection with the Formerly Utilized Sites Remedial

Action Program (FUSRAP) is effected in accord with properly issued

license and all other applicable requirements. As NRDC notes in its

petition, FUSRAP began in 1974 as a program of the U.S. Department of

Energy (DOE), and that DOE had identified a total of 46 sites for

cleanup under FUSRAP. By 1997, cleanup of 25 of these sites had been

completed. There are currently 21 sites still in need of remediation.

In October 1997, Congress transferred funding for FUSRAP from DOE to

the Corps. NRDC believes that the Corps should obtain an NRC license to

conduct activities under FUSRAP. At this time, the NRC has not required

the Corps to obtain a license.

The request has been referred to the Director of the Office of

Nuclear Material Safety and Safeguards. A copy of the petition was sent

to DOE and the Corps, and DOE and the Corps were given the opportunity

to comment.

By letter dated November 30, 1998, NRC acknowledged receipt of the

October 15, 1998, Petition.

The Director, Office of Nuclear Materials Safety and Safeguards,

has determined that the request should be denied for the reasons stated

in the ``Director's Decision Under 10 CFR 2.206'' (DD-99-07), the

complete text of which follows this notice and which is available for

public inspection in the Commission's Public Document Room, the Gelman

Building, located at 2120 L Street, N.W, Washington D.C. 20555, and is

also available on the NRC Electronic Bulletin Board at (800) 952-9676.

A copy of this Decision has been filed with the Secretary of the

Commission for the Commission's review in accordance with 10 CFR

2.206(c) of the Commission's regulations. As provided by this

regulation, this Decision will constitute the final action of the

Commission 25 days after the date of issuance unless the Commission, on

its own motion, institutes review of the Decision within that time.

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

For the Nuclear Regulatory Commission.

Carl J. Paperiello,

Director, Office of Nuclear Material Safety and Safeguards.

Director's Decision Under 10 CFR Sec. 2.206

I. Introduction

On October 15, 1998, Thomas B. Cochran, Ph.D., Director, Nuclear

Program, Natural Resources Defense Council (NRDC) and James Sottile,

IV, Caplin & Drysdale, Chartered, filed a petition on behalf of NRDC

(the ``petitioner'') addressed to L. Joseph Callan, Executive Director

for Operations, U.S. Nuclear Regulatory Commission (NRC). The petition

requests that NRC exert authority to ensure that the Corps of

Engineers' handling of radioactive materials in connection with the

Formerly Utilized Sites Remedial Action Program (FUSRAP) is effected in

accord with a properly issued license and all other applicable

requirements.

II. Background

During the 1940s, 1950s, and 1960s, the Manhattan Engineer District

and the Atomic Energy Commission performed work at a number of sites

throughout the United States as part of the nation's early atomic

energy program. Although many of the sites were cleaned up under

guidelines in effect at the time, residual contamination remains at

many of the sites today. The contaminants at these sites involved

primarily low levels of uranium, thorium, and radium, with their

associated decay products. The U.S. Department of Energy (DOE) began

FUSRAP in 1974 to study these sites and take appropriate cleanup

action. By 1997, DOE had identified 46 sites in the program and had

completed remediation at 25 sites with some ongoing operation,

maintenance, and monitoring being undertaken by DOE. Remedial action

was planned, underway, or pending final closeout at the remaining 21

sites.

On October 13, 1997, Congress passed the 1998 Energy and Water

Development Appropriations Act,1 which transferred

administration of FUSRAP to the U.S. Army Corps of

[[Page 16505]]

Engineers (the Corps or USACE) and appropriated $140,000,000 to the

Corps for the completion of FUSRAP activities. The language in the law

reads as follows:

\1\ Energy and Water Development Appropriations Act, 1998, Pub.

L. No. 105-62, 111 Stat. 1326 (1997)

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For the expenses necessary to administer and execute the

Formerly Utilized Sites Remedial Action Program to clean up

contaminated sites throughout the United States where work was

performed as part of the nation's early atomic energy program,

$140,000,000, to remain available until expended: Provided, that the

unexpended balances of prior appropriations provided for these

activities in this Act or any previous Energy and Water Development

Appropriations Act may be transferred to and merged with this

appropriation account, and thereafter, may be accounted for as one

fund for the same time period as originally enacted.2

\2\ Id.

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The legislative history behind this provision offers little

guidance regarding the details of the Corps' new involvement. The

Conference Committee report states that ``(t)he conferees have agreed

to transfer the Formerly Utilized Sites Remedial Action Program

(FUSRAP) to the Corps of Engineers, and funding for this program is

contained in Title I of the bill.'' 3 The House

Appropriations Committee report indicates that this change stems from

concerns over the cost of the FUSRAP program under DOE. The Committee

report concludes that ``(c)learly, the problem must be in the contract

management and contract administration function performed by the

Department of Energy and the management and operating contractors who

actually subcontract for most of the cleanup work.'' 4

Finally, citing the Corps' efforts under the Formerly Used Defense

Sites (FUDS) program, the report indicates that there are significant

cost and schedule efficiencies to be gained by ``. . . having the Corps

of Engineers manage the Department of Energy's FUSRAP program as

well.'' 5

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\3\ H.R. Conf. Rep. No. 271, 105th Cong., 1st Sess., 85 (1997).

\4\ H.R. Rep. No. 190, 105th Sess., 99 (1997).

\5\ Id.

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Given the lack of guidance in the legislative history, two members

of Congress sought to clarify the law's intent through subsequent

correspondence. In a November 6, 1997, letter to Energy Secretary

Federico Pena and Defense Secretary William Cohen, Senator Pete

Domenici and Representative Joseph McDade indicated, among other

things, that:

Transfer of the FUSRAP program to the U.S. Army Corps of

Engineers makes management, oversight, programming and budgeting,

technical investigations, designs, administration, and other such

activities directly associated with the execution of remediation

work at the currently eligible sites a responsibility of the Corps

of Engineers. It should be emphasized that basic underlying

authorities for the program remain unaltered and the responsibility

of DOE [emphasis added].

The Energy and Water Development Appropriations Act for fiscal year

1999 (FY99), P.L. 105-245, continued the Corps' involvement as the

implementing agency for the FUSRAP. In particular, the 1999 Act

provided that response actions by the United States Army Corps of

Engineers under FUSRAP shall be subject to the administrative,

procedural, and regulatory provisions of the Comprehensive

Environmental Response, Compensation and Liability Act (CERCLA) (42

U.S.C. 9601 et seq.), and the National Oil and Hazardous Substances

Pollution Contingency Plan, 40 CFR, Chapter 1, Part 300. In addition,

the 1999 Act provided that, ``* * * except as stated herein, these

provisions do not alter, curtail or limit the authorities, functions or

responsibilities of other agencies under the Atomic Energy Act (42

U.S.C. 2011 et seq.) * * *'' 6

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\6\ Pub. L. No. 105-245, Title I.

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To date, NRC has not regulated activities conducted under FUSRAP,

including those activities conducted by the Corps since the transfer of

the program. The petitioner, however, believes that NRC should regulate

the Corps' FUSRAP activities, arguing that the Appropriations Act did

not purport to transfer authority over FUSRAP to the Corps. As such,

according to the petitioner, the Corps may not legally administer the

program absent proper oversight because, unlike DOE and (in most cases)

DOE contractors, the Corps is not exempt from the licensing

requirements of the Atomic Energy Act (see 42 U.S.C. 2014(s)). The

petitioner further indicates that DOE has publicly stated that it

cannot extend its licensing exemption for private contractors to the

Corps and that DOE has no regulatory authority over the Corps for the

latter's FUSRAP activities. The petitioner concludes that ``* * * the

Corps does not have the legal authority to run FUSRAP without first

obtaining a license from the NRC.''

In support of its position, the petitioner notes that the

institutional mission of the Corps is not focused on the safety and

security of the nation's nuclear activities. In addition, NRC's failure

to regulate the Corps' FUSRAP activities is claimed to be inconsistent

with the intent of the laws governing the utilization and cleanup of

nuclear materials. Finally, the petitioner adds that, with very few

exceptions, Congress intended that no person should be permitted to

handle nuclear materials except in accordance with a license issued by

NRC.

In a November 30, 1998, letter NRC informed the petitioner that the

petition had been received and was currently under review. On the same

date, NRC forwarded the petition to the DOE and the Corps for their

comment. In a January 12, 1999, letter, the Chief Counsel for the

Corps, Robert M. Andersen, responded to NRC's request. DOE responded to

NRC's request in a January 14, 1999, letter from William J. Dennison,

Assistant General Counsel for Environment.

The Corps' Response

In its response, the Corps states that it is not required to obtain

a license from NRC for its FUSRAP activities. The Corps' response

emphasizes that Congress directed the Corps to conduct its FUSRAP

activities pursuant to the CERCLA.7 The Corps' principal

argument is that no NRC license is required because of the federal

permit waiver for on-site removal or remedial actions in Sec. 121(e)(1)

of CERCLA. The Corps also believes that the AEA exempts FUSRAP activity

from NRC licensing. In its opinion, ``Congress intended for USACE to

fill the shoes of the AEC successor agency responsible for FUSRAP

cleanup, that is DOE, an agency not considered a ``person'' subject to

licensing under the AEA.'' The Corps further posits that, in

transferring the FUSRAP program, Congress expressed no intent that the

agency obtain an NRC license for that activity and, instead, sought a

seamless transition ``unimpeded by procedural requirements outside of

CERCLA.''

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\7\ 42 USC 9601 et seq.

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Nevertheless, the Corps commits to meeting the substantive

requirements of both the Atomic Energy Act (AEA) and CERCLA. It

acknowledges that NRC license requirements may apply to portions of

FUSRAP response actions conducted off-site, beyond the scope of the

permit waiver. The letter concludes by acknowledging that the

substantive provisions of NRC regulations are applicable or relevant

and appropriate requirements (ARARs) for many FUSRAP response actions

under CERCLA and, as such, the Corps will look ``... to NRC for

guidance in interpreting and implementing these requirements on the

sites.''

DOE's Response

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

On the

[[Page 16506]]

matter of DOE's continued involvement with FUSRAP and oversight of the

Corps, the Department ``respectfully disagrees'' with the Corps.

According to its submittal, DOE is not authorized to regulate the

Corps' FUSRAP activities and cannot transfer its AEA authorities to the

Corps. In the Department's view, ``(t)he transfer legislation did not

make the Corps a DOE contractor, or otherwise subject the Corps'

activities to the control or direction of DOE.'' The letter also

indicates that DOE and the Corps are currently developing a memorandum

of understanding (MOU) to clarify their respective roles and

responsibilities as a result of the legislative transfer. Nevertheless,

DOE believes that, with the exception of a few ``administrative

issues,'' there are no remaining issues between the two agencies that

should affect NRC's disposition of the NRDC petition. The letter

concludes that NRC should ``evaluate the licensability of the Corps'

activities in the same manner as it would evaluate the activities of

any other `person' within the meaning of the Atomic Energy Act.'' DOE

defers to NRC on this question. The letter does not contain a DOE

position concerning the viability of the Corps' CERCLA argument.

III. Discussion

The NRC staff has completed its evaluation of the petitioner's

requests and the responses from the Corps of Engineers and the

Department of Energy. For the reasons discussed below, the NRC denies

the petitioner's request insofar as it calls on NRC to require the

Corps to obtain a license for activities conducted at FUSRAP sites.

CERCLA Permit Waiver

Pursuant to Sec. 121(e)(1) of CERCLA, ``(n)o Federal, State, or

local permit shall be required for the portion of any removal or

remedial action conducted entirely onsite, where such remedial action

is selected and carried out in compliance with this section.''

8 This provision waives any NRC license requirements that

would apply to the Corps' activities at FUSRAP sites conducted pursuant

to CERCLA.

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\8\ See also, 10 CFR 300.400(e).

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The Corps argues that, because Congress specifically subjected

FUSRAP sites to the provisions of CERCLA in the 1999 Act, section

121(e)(1) applies to Corps' response actions at FUSRAP sites. In

developing regulations for the implementation of CERCLA, the

Environmental Protection Agency (EPA) addressed the Sec. 121(e)(1)

waiver provision for federal agency CERCLA response actions in

Sec. 300.400(e) of the National Contingency Plan (NCP). That provision

states, in pertinent part:

``Permit requirements. (1) No federal, state, or local permits

are required for on-site response actions conducted pursuant to

CERCLA sections 104, 106, 120, 121, or 122. The term on-site means

the areal extent of contamination and all suitable areas in very

close proximity to the contamination necessary for implementation of

response actions.'' 9

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\9\ 40 CFR 300.400(e)(1).

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

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provided:

Proposed Sec. 300.400(e)(1) states that the permit waiver

applies to all on-site actions conducted pursuant to CERCLA sections

104, 106, or 122; in effect, this covers all CERCLA removal and

remedial actions (all ``response'' actions). However, a number of

other federal agencies have inquired as to whether this language

would reach response actions conducted pursuant to CERCLA sections

121 and 120. In response, EPA has made a non substantive

clarification of the applicability of the permit waiver in CERCLA

section 121(e)(1) to include on-site response actions conducted

pursuant to CERCLA sections 120 and 121. . . . The addition of

CERCLA section 120 simply recognizes that the permit waiver applies

to federal facility cleanups conducted pursuant to CERCLA section

120(e), which are also selected and carried out in compliance with

CERCLA section 121.10

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\10\ 55 FR 8666, 8689 (1990) (``National Oil and Hazardous

Substances Pollution Contingency Plan; Final Rule) (emphasis added).

This change echoed EPA's intentions stated in the proposed rule:

``EPA proposes to state that on-site permits are not required for

response actions taken by EPA, other federal agencies, States, or

private parties pursuant to CERCLA sections 104, 106, or 122.'' 53

Fed. Reg. 51394, 51406 (1988) (``National Oil and Hazardous

Substances Pollution Contingency Plan; Proposed Rule) (emphasis

added).

Section 121(e)(1) applies to federal agencies such as the Corps in

this case. The Corps may take the role of ``lead agency'' in a CERCLA

cleanup action. The NCP defines ``lead agency'' as ``the agency that

provides the OSC/RPM to plan and implement response actions under the

NCP. EPA, the USCG, another federal agency, or a state * * * may be the

lead agency for a response action.'' 11 The NCP also states

that ``Federal agencies listed in Sec. 300.175 have duties established

by statute, executive order, or Presidential directive which may apply

to federal response actions following, or in prevention of, the

discharge of oil or release of a hazardous substance, pollutant, or

contaminant.'' 12 The Corps, a branch of the U.S. Department

of Defense, is among the agencies listed.13 In the case of

the FUSRAP program, Congress specifically designated the Corps as the

``lead agency'' in passing the 1999 Appropriations Act.14

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\11\ 40 CFR 300.5 (emphasis added). The definition goes on to

state, ``The federal agency maintains its lead agency

responsibilities whether the remedy is selected by the federal

agency for non-NPL sites or by EPA and the federal agency or by EPA

alone under CERCLA section 120.''

\12\ 40 CFR 300.170.

\13\ See 40 CFR 300.175(b)(4)(i).

\14\ Pub. L. No. 105-245, Title I.

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As the Corps acknowledges in its letter, the permit waiver in

Sec. 121(e)(1) has been rarely addressed in the courts. In support of

its position, the Corps does cite McClellan Ecological Seepage

Situation (MESS) v. Cheney, a case which held that a Resource

Conservation and Recovery Act (RCRA) permit was not required when

activities which might otherwise require a RCRA permit took place at a

site only as part of a CERCLA removal or remedial action.15

In McClellan, MESS, a citizens' group, filed suit against the Secretary

of Defense, with regard to cleanup actions being taken at McClellan Air

Force Base, under RCRA and certain state laws. MESS claimed, inter

alia, that McClellan was required to obtain a RCRA permit for the

management of certain hazardous wastes on the base. The court held that

an RCRA permit was not required, because the remedial activities were

taken pursuant to CERCLA. The court relied on Sec. 121(e)(1), stating,

``Section 121(e) expressly provides that the activity does not have to

be separately permitted.'' 16

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\15\ 763 F. Supp. 431 (E.D. Cal. 1989). This holding was later

vacated on the basis of subject matter jurisdiction. See McClellan

Ecological Seepage Situation (MESS) v. Perry, 47 F.3d 325 (9th Cir.

1995).

\16\ 763 F. Supp. 431, at 435. The court went on to note in

dicta that where there has been treatment that requires a RCRA

permit which is not associated with a remedial or removal action

under CERCLA, such a permit would be required. Id.

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The Corps also cites United States v. City of Denver to uphold this

interpretation of Sec. 121(e)(1).17 In that case, the court

held that CERCLA preempted a zoning ordinance which was in actual

conflict with EPA's remedial order. The court stated, ``[T]o hold that

Congress intended that non-uniform and potentially conflicting zoning

laws could override CERCLA remedies would fly in the face of Congress's

[sic] goal of effecting prompt cleanups of the literally thousands of

hazardous waste sites across the country.'' 18

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\17\ 100 F.3d 1509 (10th Cir. 1996).

\18\ Id. at 1513. The Corps cited Ohio v. USEPA, 997 F.2d 1520

(D.C. Cir. 1993) in support of its Sec. 121(e)(1) position. NRC

would note that the case upholds a number of provisions in EPA's

1990 revision of the NCP, including Sec. 121(e)(1). However, the

court's discussion centers on EPA's definition of the term

``onsite,'' and does not discuss the exemption provision, as a

whole, in detail.

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[[Page 16507]]

In passing the 1998 and 1999 Appropriations Acts, Congress gave no

indication that it intended to suspend the waiver provision in

Sec. 121(e)(1) of CERCLA in the context of the Corps' FUSRAP

activities. The 1999 Act does say: ``Provided further, That, except as

stated herein, these provisions do not alter, curtail or limit the

authorities, functions or responsibilities of other agencies under the

Atomic Energy Act (42 U.S.C. 2011 et seq.) * * * '' In its letter, DOE

points to this language to support its argument that the Appropriations

Act does not create any authority for it to regulate the Corps. In

doing so, DOE interprets the term ``provisions'' as referring to the

provisions of the Appropriations Act and not the provisions of CERCLA.

The NRC staff agrees with DOE on this point. While the language appears

to indicate that the transfer of the program to the Corps does not

alter the extent of DOE and perhaps NRC authority under the AEA, there

is no specific indication that the language is intended to direct NRC

to regulate the Corps' administration of the FUSRAP program. In

particular, there is no evidence that in including this phrase,

Congress intended to limit the application of the Sec. 121(e)(1) permit

waiver to the Corps' FUSRAP activities. In fact, nowhere in the reports

for either the 1998 or 1999 Acts or in the text of the laws themselves

did Congress give any hint that it intended NRC to regulate the Corps

in its administration of the FUSRAP program. Instead, the inclusion of

the specific reference to CERCLA suggests that Congress intended NRC to

continue to refrain from regulating activities under the FUSRAP program

even after DOE's role was reduced or discontinued.

As DOE states in its letter, the Corps has ``consistently expressed

the view that its authorities under the Comprehensive Environmental

Response, Compensation and Liability Act (CERCLA) * * * '' are

sufficient for the Corps' administration of the FUSRAP program. By the

time the 1999 Appropriations Act was passed, the Corps' administration

of the FUSRAP program under CERCLA was a matter of public record

19 and NRC had not taken any steps to require the Corps to

obtain a license from NRC. If Congress had intended NRC to regulate the

Corps' activities at FUSRAP sites, it is likely that it would have

specifically directed NRC to do so in passing the 1999 Appropriations

Act.

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\19\ See, e.g., Letter from Albert J. Genetti, Jr., U.S. Army

Deputy Commander, U.S. Army Corps of Engineers, to Mr. Thomas B.

Cochran and Ms. Barbara A. Finamore, Natural Resources Defense

Council, May 20, 1998.

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We note, however, that the waiver in Sec. 121(e)(1) does not apply

to off-site activities. To the extent that NRC and U.S. Department of

Transportation (DOT) requirements apply to the transportation, transfer

and disposal of Atomic Energy Act material taken off of FUSRAP sites,

the Corps has committed to following applicable requirements, including

those for transfer under the AEA, shipment under the Hazardous

Materials Transportation Act, 49 U.S.C. 5101, and NRC manifest

requirements (e.g., 10 CFR Sec. 20.2006).20

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\20\ While the Corps will be following NRC's requirements in

this area, it is unlikely that any specific NRC license requirements

would apply to shipments from FUSRAP sites. However, the staff will

request that the Corps contact NRC if it plans to ship material that

does not meet one of the exemptions for a specific license in NRC

regulations. See, e.g., 10 C.F.R. Sec. 71.10.

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NRC Authority Under UMTRCA

Many FUSRAP sites contain material over which NRC would have no

regulatory jurisdiction regardless of whether the Corps is the lead

agency in implementing the program and regardless of whether response

actions by the Corps under the program are subject to CERCLA. In

particular, of the 21 sites at which remediation has not yet been

completed, 12 sites contain residual material resulting from activities

that were not licensed by NRC at the time the Uranium Mill Tailings Act

of 1978 (UMTRCA) became effective or at any time thereafter. As defined

by the UMTRCA, NRC does not have authority to regulate cleanup of

covered residual material resulting from an activity that was not so

licensed.

The language of section 83 of the Atomic Energy Act (42 U.S.C.

2113(a)), was added to that Act by UMTRCA. Section 83 a. requires NRC

to impose certain terms and conditions relating to cleanup with respect

to any ``license issued or renewed after the effective date'' of

section 83 for covered activities, and also imposes such terms or

conditions on any such ``license in effect on the date of enactment''

of the section. No such responsibility was imposed upon NRC with

respect to activities that were not under NRC license before the date

of the enactment of section 83, if they were not licensed thereafter.

Prior to the enactment of UMTRCA, neither the AEC nor the NRC had

statutory jurisdiction over residual material resulting from the

processing of ore for source material. This position was taken by the

AEC after careful legal analysis, and was subsequently adopted by the

NRC when it succeeded to the AEC's regulatory functions. Though NRC

exercised some control over such material in connection with licensed

processing of ore for source material, it did not exercise jurisdiction

at inactive sites where no license was in effect. UMTRCA was enacted

because the Congress recognized that NRC did not have jurisdiction over

radioactive residuals resulting from the extraction of uranium or

thorium from ore processed for its source material content at inactive

sites. This is evidenced by the floor remarks regarding the amended

version of H.R. 13650, the bill that was enacted as UMTRCA. Senator

Hart explained:

Although the NRC licenses active uranium mining and milling

activities, existing law does not permit the Commission to regulate

the disposal of mill tailings once milling and mining operations

cease and the operating license expires. It is that authority to

regulate tailings after milling operations cease, that we propose be

given to the NRC.21

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\21\ 124 Cong. Rec. S18,748 (October 13, 1978).

Because the residual material at many FUSRAP sites was generated in

activities that were not licensed when UMTRCA was enacted, or

thereafter, NRC today has no basis to assert any regulatory authority

over handling of the residuals at those sites.

The NRC staff notes that many of the remaining sites (i.e., sites

containing materials other than mill tailings) also raise some

significant jurisdictional questions in their own right. For instance,

a few of the sites may still be in legal possession of DOE even though

the Corps is conducting clean up at the site under FUSRAP. While the

issue of possession appears to be a matter of continuing discussion

between the Corps and DOE, it is highly unlikely that NRC would have

authority to require a license for cleanup activities conducted at a

site which continues to be a DOE-owned or controlled site. In addition,

the concentration of radioactive material at some of the remaining

sites may not be sufficient to trigger NRC license requirements. While

NRC does not have information sufficient to reach a final conclusion

for specific sites, it is the NRC staff's understanding that some of

these sites may contain only ``unimportant quantities'' of source

material as defined under 10 CFR Sec. 40.13(a). If this is the case,

the amount of material at these sites would not be sufficient to

implicate NRC license requirements. Given the limitations of NRC

jurisdiction under UMTRCA, the potential DOE ownership issues, and the

possibility that several sites may

[[Page 16508]]

contain ``unimportant quantities'' of source material, it is likely

that the number of FUSRAP sites over which NRC may have jurisdiction

would be very small even absent the CERCLA permit waiver.

The Corps' Authority Under the Appropriations Act

In its response, the Corps states that the AEA also exempts FUSRAP

activity from NRC licensing because Congress intended the Corps to fill

the shoes of DOE, an agency exempt from NRC regulatory requirements

under most circumstances. DOE disagrees with this characterization,

claiming that, for the most part, it has no role in the FUSRAP program

at this time (regulatory, contractual, or otherwise). As such, in DOE's

view, the Corps cannot rely on any exemption in the AEA to avoid

regulation by NRC. Nevertheless, DOE acknowledges that the transfer to

the Corps did not completely eliminate the Department's involvement

with FUSRAP. While the issues have yet to be resolved, DOE may have

responsibility for inventory reporting of government-owned FUSRAP sites

to the General Services Administration and may be required to conduct

post-cleanup monitoring at some sites after the Corps' clean up

activities cease.

DOE and the Corps are working on an MOU to address their

disagreements regarding the nature of the transfer of the FUSRAP

program and their respective responsibilities under the program. Until

the disagreement has been resolved, either by the agencies or by

further direction from Congress, the NRC staff need not reach a

conclusion on the matter. Nevertheless, in view of the clear

applicability of CERCLA Sec. 121(e)(1) to the Corps' activity at FUSRAP

sites, the staff does not believe that it would be appropriate to

require the Corps to obtain an NRC license for its activity at FUSRAP

sites.

IV. Conclusion

In sum, Congress has given NRC no clear directive to oversee

USACE's ongoing effort under CERCLA to complete the FUSRAP cleanup

project. Indeed, Congress has provided NRC no money and no personnel to

undertake an oversight role. In addition, Congress has made it clear

that the Corps is to undertake FUSRAP cleanup pursuant to CERCLA which

waives permit requirements for onsite activities. In these

circumstances, we are disinclined to read our statutory authority

expansively, and to commit scarce NRC resources, to establish and

maintain a regulatory program in an area where, under Congressional

direction, a sister federal agency already is at work and has committed

itself to following appropriate safety and environmental standards.

Accordingly, I deny the petition insofar as it requests NRC to

impose licensing and other regulatory requirements on the Corps for

that agency's handling of radioactive material at FUSRAP sites. Both

the permit waiver provision of CERCLA and the ambiguity regarding DOE's

role in the program lead me to the conclusion that NRC should not

inject itself into the FUSRAP program at this time. Absent specific

direction from Congress to the contrary, NRC will continue to refrain

from regulating the Corps in its clean up activities at FUSRAP sites.

As provided by 10 C.F.R. Sec. 2.206, a copy of this Decision will

be filed with the Secretary of the Commission for the Commission's

review. The Decision will become the final action of the Commission 25

days after issuance, unless the Commission, on its own motion,

institutes review of the Decision within that time.

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

For the Nuclear Regulatory Commission.

Carl J. Paperiello,

Director, Office of Nuclear Material Safety and Safeguards.

[FR Doc. 99-8315 Filed 4-2-99; 8:45 am]

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