8 July 2011
Regulation of Military Operational Radium-226
[Federal Register Volume 76, Number 131 (Friday, July 8, 2011)]
[Proposed Rules]
[Pages 40282-40285]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17165]
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Proposed Rules
Federal Register
________________________________________________________________________
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: Carol.Gallagher@nrc.gov.
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 pdr.resource@nrc.gov.
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:
Robert.Johnson2@nrc.gov.
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
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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
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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: robert.johnson2@nuc.gov.
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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