[*PG243]RADIOACTIVE ROULETTE: SHOULD THE NUCLEAR REGULATORY COMMISSION BE REGULATING THE UNITED STATES ARMY CORPS OF ENGINEERS’ FUSRAP ACTIVITIES?

Matthew Hughey*

Abstract:  The Formerly Utilized Sites Remedial Action Program was created in 1974 to clean up radioactive waste at sites used in the nation’s early atomic energy and atomic weapons programs. For over two decades, this program was administered by the Department of Energy and its predecessor agencies. In 1997, responsibility for FUSRAP was shifted to the United States Army Corps of Engineers. The transfer did not occur without controversy. Congress transferred the program with little legislative direction. Almost immediately, questions arose about the Corps’ authority to administer to program without appropriate permits from the Nuclear Regulatory Commission. Since 1997, the NRC has repeatedly asserted that it does not have the authority to govern the remediation activities of another agency in the federal government. This Note explores the reasons why NRC regulation of the Corps’ FUSRAP activities is not only proper, but should be undertaken in the interests of public health and safety.

Introduction

On October 13, 1997, President Clinton signed the Energy and Water Development Appropriations Act for fiscal year 1998.1 This appropriations bill contained an important provision transferring a little known Department of Energy (DOE) environmental remediation program, the Formerly Utilized Sites Remedial Action Program (FUSRAP), to the United States Army Corps of Engineers (Corps).2 [*PG244]FUSRAP was created in 1974 to remediate contamination at sites creating fissionable material used by two of DOE’s predecessor agencies, the Manhattan Engineer District (MED) and the Atomic Energy Commission (AEC).3 Most of the radioactive material at FUSRAP sites was contaminated with low levels of uranium, thorium, and radium.4 By the time of the transfer, DOE identified forty-six sites in the program and had remediated twenty-four.5

Congress, however, had become dissatisfied with the manner and speed with which DOE administered FUSRAP.6 This dissatisfaction not only led to the transfer of the program from DOE to the Corps, but Congress also agreed to almost double the program’s budget.7 There was considerable belief that the transfer to the Corps would significantly hasten the remediation of the twenty-two remaining FUSRAP sites and reduce costs at the same time.8

Congress’ faith in the Corps to make “significant cost and schedule”9 efficiencies may have been incorrect.10 According to the Corps’ estimates the program would take between four and seven years longer and cost between $560 and $970 million more than under the DOE plan.11 Along with the increased costs comes the belief that the remediation criteria used by the Corps are more lenient than those used previously by DOE.12

[*PG245] The transfer has also raised several legal questions, the most important of which is whether the United States Nuclear Regulatory Commission (NRC) should regulate the Corps’ FUSRAP activities.13 In 1998, the Natural Resource Defense Council, Inc. (NRDC) petitioned the NRC to use its authority to ensure that the Corps handles FUSRAP waste in accordance with NRC procedures.14 Envirocare of Utah, Inc., a low-level waste management and disposal firm, and the Snake River Alliance, an environmental group, filed a similar petition in early 2000.15 Envirocare simultaneously pursued a civil action in the Court of Federal Claims to prevent the Corps from contracting for the removal of FUSRAP waste.16

The NRDC and Envirocare petitions both claimed that the legislation purportedly transferring authority over FUSRAP from DOE to the Corps was defective.17 Both challenges claimed the Corps could not administer the program because, unlike DOE, the Corps is not exempt from the licensing requirements of the Atomic Energy Act (AEA).18 The Corps responded by stating that Congress directed it to conduct its FUSRAP activities according to the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).19 The Corps claimed that its on-site remediation [*PG246]activities did not require an NRC license because of the federal permit waiver in section 121(e)(1) of CERCLA.20

In a 1999 decision, the NRC sided with the Corps, concluding that Congress did not give the NRC a “clear directive to oversee the [Corps’] on-going effort under CERCLA to complete the FUSRAP cleanup project.”21 Citing a reluctance to commit scarce NRC resources to oversee a “sister federal agency” and concerns about the ambiguity of DOE’s role in the program, the NRC accepted that the Corps’ activities were shielded by the CERCLA permit waiver provision.22 Going one step further, the NRC stated that it did not have jurisdiction to regulate some of the Corps’ disposal activities even if the waiver did not apply.23

This Note will explore the question of whether the NRC should be regulating the Corps’ FUSRAP remediation and disposal activities. Section I will provide a brief history of the origins of the FUSRAP program and the evolution of DOE. Section II will discuss the transfer of FUSRAP from DOE to the Corps. Section III will explore the NRDC and Envirocare challenges to the Corps’ administration of FUSRAP. Section IV will closely examine the question of whether the NRC’s failure to regulate the Corps’ FUSRAP activities represents a breach of the Commission’s statutory duties.

I.  A History of FUSRAP and the Changing Roles
(and Names) of DOE: From the Manhattan
Engineering District to 1997

The problem of ascertaining which federal agency should regulate the disposal of FUSRAP waste can be traced to the tortured history of DOE and its predecessor agencies.24 From 1946 through 1977, the federal agencies that regulate energy research, development, and [*PG247]licensing underwent at least three major reorganizations.25 For example, the federal agency that created FUSRAP does not even exist anymore.26 The various reorganizations led to jurisdictional problems that continue to plague FUSRAP today.27

A.  The Manhattan Engineering District and the Atomic Energy Commission

During World War II, the federal government created the Manhattan Engineering District (MED) to direct the development of the nuclear bomb.28 While most sites producing fissile and other materials needed to manufacture the bomb were federally owned, some of the material was produced under contract with the private sector on private land.29 During the war, the main goal of the MED and its subcontractors was to complete construction of the bomb.30 Safe disposal of the radioactive waste generated was not a priority.31 As a result, the universities, machine plants, and other private facilities used in the process became contaminated with “primarily low levels of uranium, thorium, and radium, with their associated decay products.”32 This contamination created a situation where radioactivity was above normal background levels.33

After World War II, control over the nation’s nuclear weapons program was shifted to the civilian Atomic Energy Commission (AEC).34 The AEC was authorized by the Atomic Energy Act (AEA) of 1946 to establish “instructions by rule, regulation, or order, governing the possession and use of nuclear material and the operation of facili[*PG248]ties used in conducting its activities.”35 As early as 1946, Congress recognized that the radioactive materials (fissionable, source, and by-product materials) created under the auspices of the AEC might represent a danger to human health.36

Under AEC administration, concerns about MED radioactive contamination became more acute.37 Despite the growing Soviet threat and accelerating nuclear weapons program, the AEC retained broad power to promulgate health and safety regulations at AEC sites.38 The power of AEC to regulate activities involving nuclear materials was not limited to federal facilities.39 The AEA of 1954 stated that title to all nuclear material in the country was vested in the federal government.40 Thus, the AEC could extend its jurisdiction to private off-site activities.41 Seizing on this broad power, AEC began to decontaminate sites contaminated under the MED and AEC from the 1940s through the 1960s.42 Sites decontaminated to the relatively primitive standards used by the AEC during this time were released for other uses under applicable regulations.43

B.  Bifurcation of the Atomic Energy Commission’s Administrative and Regulatory Programs: Creation of DOE and the NRC

In 1974, Congress set about reorganizing and consolidating the AEC.44 The energy shocks of the early 1970s required the creation of a broad based energy policy.45 Concerned that the AEC’s twenty-year focus on nuclear power would inhibit the Commission’s ability to [*PG249]make unbiased decisions about non-nuclear energy sources, Congress eliminated the AEC.46

Passage of the act abolishing the AEC, the Energy Reorganization Act of 1974, led to a dramatic reordering of the nation’s nuclear administrative and regulatory regimes.47 The Energy Research and Development Administration (ERDA) took over most of the research and development responsibilities previously vested in the AEC.48 The AEC’s commercial licensing and related regulatory functions were transferred to a newly created, independent regulatory agency, the NRC.49 The ERDA retained an exemption allowing them to conduct activities that would otherwise require a NRC license.50

Three years later, Congress again acted to reorganize energy responsibilities at the federal level.51 Citing “organizational problems resulting from the fragmentation of responsibilities” that “hampered the Government’s ability to formulate, implement, and enforce a coherent and consistent national energy policy,” Congress created a cabinet-level department in the executive branch, the Department of Energy (DOE).52 The ERDA was one of several independent agencies, and programs in other departments, whose responsibilities were transferred to DOE.53 By assuming the duties of the ERDA, DOE became responsible for remediation of sites used by the ERDA’s predecessor agencies, the MED and the AEC.54

[*PG250]C.  Creation and Administration of FUSRAP

FUSRAP was created under ERDA auspices in 1974.55 The ERDA determined that sites used to manufacture materials used in the early atomic weapons program “were not adequately decontaminated to 1970’s health and safety standards.”56 When ERDA functions were transferred to DOE in the Department of Energy Organization Act, DOE assumed control of the nascent FUSRAP program.57

After assuming control over FUSRAP, DOE began to undertake additional cleanup measures at sites where ERDA action had already been taken.58 The setting of remediation standards was somewhat inhibited by the fact that FUSRAP was not specifically defined by statute.59 Passage of CERCLA provided more clarity, but also imposed additional remediation requirements on federal facilities.60 DOE utilized FUSRAP clean-ups to meet the “newly applicable human health and environmental standards,” including the new environmental restoration standards imposed by CERCLA.61

From the creation of the Department in 1977 until 1997, FUSRAP was funded and administered by DOE through the annual appropriations process.62 In almost two decades, DOE identified forty-six sites to be remediated by the FUSRAP program in fourteen states.63 DOE identified sites suitable for inclusion in FUSRAP by “[i]dentifying and evaluating all sites used to support early MED/AEC nuclear work and determin[ing] whether the sites need decontamination and/or control.”64 By 1997, DOE had completed decontamination at twenty-four sites, restoring the sites to a condition in line with “appropriate federal laws and regulations” and local land use and environmental standards.65

As noted earlier, one of the primary difficulties faced by DOE during its administration of FUSRAP was determining the “appropri[*PG251]ate approach to establish general site cleanup criteria.”66 DOE, the NRC, and the Environmental Protection Agency (EPA) each had standards regulating the cleanup of radioactive materials.67 DOE, however, enjoyed a distinct advantage.68 DOE remediation activities did not require a NRC license, due to the exemption provided by the AEA.69 This exemption was limited to DOE activities, and most activities conducted by DOE contractors; it did not extend to other government parties.70 The narrowness of this exemption would create problems after the transfer of the program from DOE to the Corps.71

II.  “Muck and Truck”:72 The Transfer of FUSRAP
from DOE to the Corps

While DOE continued its efforts to remediate the environmental hot spots created by the Cold War, trouble was brewing in Washington.73 Republicans in Congress were targeting the Department of Energy for elimination.74 Secretary Hazel O’Leary was under fire for various political and personal reasons.75

Against this background, Congressman Joseph McDade (R-Pa.), Chairman of the House Appropriations Energy and Water Develop[*PG252]ment Subcommittee, decided that FUSRAP was the perfect DOE program to target.76 McDade was furious that so little progress had been made in FUSRAP in over twenty years of DOE stewardship, as well as the fact that the primary contractor had not been changed since 1980.77 He asked the Corps if it was comfortable assuming control over the program.78 The Corps responded positively and in 1988, after overcoming opposition from the Clinton Administration and the Senate, the Corps assumed operational control after passage of the Energy and Water Development Appropriations Act, 1998.79

The transfer was accompanied with very little in the way of congressional guidance.80 The conference report accompanying the Energy and Water Development Appropriations Act provided almost nothing more in the way of direction other than the title to one of the legislation’s sections.81 With regards to the remediation standard to be employed, the report merely directed the Corps to “select an organization and process within the Corps which can execute this high priority program most effectively and efficiently.”82 Questions remained about DOE’s continuing role (if any) and operative regulations governing the Corps’ remediation activities.83

[*PG253] The result was confusion about the appropriate remediation standard.84 While the Corps recognized that the “DOE, the Nuclear Regulatory Commission (NRC), and EPA all have standards for the cleanup of . . . radioactive materials,” it concentrated primarily on the remediation standards and administrative procedures of CERCLA.85 The Corps reached this conclusion in spite of the fact that only six of the twenty-two FUSRAP sites that remained to be remediated were National Priority List (NPL), or Superfund, sites.86

Perhaps in response to the confusion caused by the abrupt transfer of a program that DOE had administered for over twenty years, Congress attempted to clarify their intentions.87 On November 6, 1997, Senator Pete Domenici (R-N.M.) and Congressman McDade sent a letter to Energy Secretary Federico Pena and Defense Secretary William Cohen to clarify the respective roles of DOE and the Corps.88 They made clear that the Corps would assume operational, day-to-day control over FUSRAP sites that had not yet been remediated.89 The letter emphasized, however, that “basic underlying authorities for the program remain unaltered and the responsibility of DOE.90

Seeking to smooth the transition of the program from DOE to the Corps, Congress next directed the agencies to enter into a Memorandum of Understanding (MOU).91 The purpose of the MOU was to “remedy any misunderstanding that may exist between the two agencies as to the roles and responsibilities related to the cleanup program.”92 The Corps and DOE executed this MOU in March 1999.93 DOE retained responsibility for, among other things, previously completed sites, long-term operation and maintenance, and “certain responsibilities regarding the designation of any potential additional [*PG254]sites.”94 The Corps was made responsible for “completing remediation at sites which were not completed as of October 13, 1997 . . . and for the evaluation of potential additional sites to determine whether cleanup is warranted.”95 In addition, the Corps retained budgetary authority over FUSRAP.96

Believing that the respective roles of DOE and the Corps had been addressed by the congressional clarification and the MOU, Congress next attempted to specify the legislative authority controlling Corps activity.97 The Energy and Water Development Appropriations Act for fiscal year 1999 stated “[t]hat response actions by the United States Army Corps of Engineers under this program shall be subject to the administrative, procedural, and regulatory provisions of the Comprehensive Environmental Response, Compensation and Liability Act, and the National Oil and Hazardous Substances Pollution Contingency Plan.”98 Congress reaffirmed this statement the following year before weighing in on the issue that had spurred administrative and legal challenges: Should the NRC regulate the Corps’ FUSRAP activities?99

III.  Things Get Complicated: Various Challenges to the Corps’ Authority and Its Remediation Procedures

While Congress attempted to clearly spell out its intent in transferring FUSRAP to the Corps, challenges to the Corps’ oversight of the program and legal authority sprouted.100 The NRDC was the first party to challenge the Corps’ supervision of the program, contending that it required an NRC license to conduct its remediation activities.101 Envirocare of Utah, Inc. followed the NRDC, filing administrative and legal challenges to the Corps’ authority to conduct its FUS[*PG255]RAP activities without a NRC license.102 Although these legal challenges helped frame the legal issues involved, the debate over NRC regulation continued, shifting back to the halls of Congress.103

A.  The NRDC’s Petition to the NRC and the NRC Decision

1.  The NRDC’s Petition and Their Argument for NRC licensing of Corps’ FUSRAP Activities

The NRDC filed their challenge at the NRC104 in October of 1998, contending that the NRC should “exert authority to ensure that the [Corps’] handling of radioactive materials in connection with the [FUSRAP] is effected in accord with [a] properly issued license and all other applicable requirements.”105 The NRC essentially stated that this was a matter of first impression and acknowledged that it did not require the Corps to obtain a license at the time of the NRDC challenge.106

The NRDC’s basic contention was that the transfer legislation, ostensibly shifting control of FUSRAP to the Corps, did not transfer legal authority of the program to the Corps.107 In other words, the Energy and Water Development Appropriations Act of 1998 shifted day-to-day control over the program to the Corps, but DOE retained ulti[*PG256]mate legal authority.108 The NRDC claimed that nothing in the transfer legislation suggests a “contrary result; the text does not grant [the Corps] anything beyond budget authority over FUSRAP.”109

According to the NRDC, this interpretation created a regulatory and oversight problem.110 DOE, while it administered the program, enjoyed a license exemption provided by the AEA.111 Unlike DOE and its contractors, the Corps is “not exempt from the licensing requirements” of the AEA.112 Further, DOE acknowledged that it could not extend its licensing exemption for its private contractors to the Corps and that DOE had no regulatory authority over the Corps’ FUSRAP activities.113 Absent an exemption from NRC licensing or authorized DOE supervision, the NRDC claimed that the Corps did not have authority without first obtaining a license from the NRC.114

The NRDC paired its legal argument with a public policy discussion.115 It contended that the Corps was not suited to carry out FUSRAP remediation without the supervision of the NRC.116 It claimed that the primary mission of the NRC was to ensure the “safety and security of the nation’s nuclear activities.”117 The Corps’ primary mission, by contrast, was to focus on construction and other projects, not environmental remediation.118

Further, the NRDC was concerned that the Corps was relying solely on CERCLA for its guidelines regarding FUSRAP remediation projects.119 The NRDC contended that the cleanup of radioactive materials was highly technical.120 For this reason, Congress placed the administrative power for the cleanup and disposal of radioactive materials in the NRC and DOE.121 That is precisely why Congress “commanded that, with very few exceptions, no agencies other than DOE [*PG257]be permitted to handle nuclear materials except in accordance with a license issued by the NRC.”122 Thus, the Corps could only benefit from NRC supervision, especially when it comes to handing radioactive material that may remain hazardous for “thousands of years.”123

2.  The Corps’ Counterargument

By the time of the NRC decision, the Corps had a particularly good reason for its reliance on CERCLA.124 By March 1999, Congress had stated that Corps FUSRAP activities were to be governed by CERCLA.125 According to the Corps, this congressional mandate afforded it the protections of a federal permit waiver contained in CERCLA.126 Under section 121 of CERCLA, federal cleanup activities conducted entirely on site initiated under the authority of CERCLA do not require federal, state, or local permits.127 According to the Corps, this permit waiver stripped the authority of the NRC to regulate the Corps’ onsite remediation activities under FUSRAP.128

Further, the Corps contended that Congress intended that it act as the legal successor of DOE, as the party responsible for the supervision of FUSRAP.129 If the NRC accepted this contention, it would render the NRDC’s legal argument moot.130 Under the AEA, the actions taken by a legal successor of the AEC (ERDA and DOE) are shielded from the licensing provisions of the Act.131 If the Corps is a designated [*PG258]legal successor of the AEC, the NRC is without authority to license its activities.132

3.  The NRC Decision: A Victory for the Corps and a Jurisdictional Problem

In short, the NRC denied the NRDC’s request to require the Corps to obtain a NRC license to conduct FUSRAP activities.133 The rationales for the decision, however, were slightly more complicated.134 The NRC accepted that the Corps was entitled to the federal permit waiver protections of CERCLA.135 In addition, the NRC stated that it did not have jurisdiction to regulate Corps activity at several FUSRAP sites.136

The NRC explained why the Corps’ argument—that its activities were covered by the CERCLA federal permit waiver—was correct.137 The NRC accepted the Corps’ contention 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.”138 Since section 121(e)(1) applies to federal agencies, and the Corps can “take the role of ‘lead agency’ in a CERCLA cleanup action,” it is entitled to the protections of the waiver.139

Citing cases mentioned in the Corps’ response to the NRC inquiry, the NRC agreed with the federal court’s holding that the section 121(e) waiver allows government bodies, such as the Corps, to avoid NRC licensing, even though it would be necessary absent the waiver.140 For example, in McClellan Ecological Seepage Situation (MESS) v. Cheney, the plaintiff claimed that the Department of Defense was [*PG259]required to obtain a Resource Conservation and Recovery Act (RCRA)141 permit for hazardous wastes being stored at McClellan Air Force Base.142 McClellan Air Force had been listed on the National Priorities List pursuant to a CERCLA remedial action.143 The court in McClellan stated that when the RCRA permit would be required solely because of actions that are part of a CERCLA remedial action, “[s]ection 121(e) expressly provides that that [RCRA] activity does not have to be separately permitted.”144

Further, NRC claimed that Congress did not indicate that it wished to suspend the waiver provision in section 121(e)(1) with regards to the Corps’ FUSRAP activities.145 Accepting the premise that the transfer legislation did not “alter the extent of DOE and perhaps NRC authority under the AEA,” the NRC stated that Congress also did not direct the NRC to regulate the Corps’ activity.146 With this in mind, and in light of the fact that Congress explicitly mentioned that the Corps’ remedial actions should be governed by CERCLA, the NRC concluded that congressional silence indicated that they did not want the NRC to regulate the Corps’ FUSRAP activities.147

Further, the NRC asserted that it did not have “regulatory jurisdiction” over Corps FUSRAP activity “regardless of whether response actions by the Corps are subject to CERCLA.”148 The NRC claimed that it did not even have jurisdiction over twelve of the twenty-one FUSRAP sites where remediation had not completed by the time of the program transfer.149 The NRC based this argument on the language of the Uranium Mill Tailings Radiation Control Act (UMTRCA) of 1978.150

Many of the sites in FUSRAP were used to process uranium ore.151 Since over 2000 pounds of ore were needed to create one to five pounds of useable uranium, this created a tremendous amount of [*PG260]waste.152 Much of this waste was under the control of the federal government, but about twenty-seven tons were left at inactive mill sites with little or no regard for their “unstabilized and unprotected condition.”153 Congress sought to regulate such waste through the NRC licensing process, requiring producers of “tailings or wastes produced by the extraction of or concentration of uranium or thorium from any ore processed primarily for its source material content” to comply with NRC guidelines regarding their disposal.154

The NRC stated that prior to the passage of the UMTRCA, neither the AEC nor the NRC had jurisdiction over uranium tailings or similar residual material.155 After passage of the UMTRCA, the NRC made cleanup of such materials a condition of the renewal of a NRC license.156 Further, the NRC alleged that the previous failure of the AEC and the NRC to regulate some of these materials was a product of conscious action.157 Therefore, the residual material regulated by the UMTRCA created prior to its passage in 1978 was not the subject of a subsequent license renewal.158 According to the NRC, waste from inactive sites was never subject to NRC regulation.159 As far as the NRC was concerned, it could not assert jurisdiction over waste that was never the subject of a NRC license.160 This was the situation of twelve of the twenty-one sites where remediation had not yet been completed.161

B.  Envirocare’s Various Legal Challenges to the Corps’ Authority

Envirocare, in a lawsuit that was filed in the United States Court of Federal Claims,162 made similar claims to those advanced by the [*PG261]NRDC.163 Envirocare claimed that the Corps could not issue contract solicitations for FUSRAP activities, because it did not have a NRC license and because potential “offerors require a[] NRC license in order to accept 11(e)(2) byproduct material for disposal.”164 Envirocare mounted a number of other challenges without success, including a collateral attack on the legislation transferring authority over FUSRAP from DOE to the Corps.165

The United States filed a motion to dismiss the case.166 In deciding on the motion, the court discussed the NRC’s decision on the NRDC petition.167 The court concluded that “[t]he issue addressed in the NRC’s decision is identical to that raised in Count IV of plaintiff’s complaint: whether the Corps’ FUSRAP activities are subject to NRC licensing.”168 Since this decision constituted an agency’s final action, the “federal courts of appeals have exclusive judicial review.”169 Envirocare subsequently appealed the decision to the United States Court of Appeals for the Federal Circuit.170 The suit was subsequently dismissed at the request of both parties.171

C.  The NRDC Continues the Debate: Challenging the
NRC’s Decision in Congress

In July 1999, the House Commerce Committee held hearings on legislation to reauthorize the NRC.172 The NRDC, fresh off of their legal defeat before the NRC, used the hearings as a forum to point out the problems with the NRC’s decision to not regulate FUSRAP [*PG262]waste.173 David Adelman, a project attorney for the NRDC, continued to press the public policy rationales for NRC regulation of FUSRAP waste.174 In addition, the NRDC took issue with the NRC’s assertion that it did not have jurisdiction over many of the FUSRAP sites because of disputed language in the UMTRCA.175

As noted earlier, the NRC stated that it did not have jurisdiction to regulate the disposal of waste at twelve of the twenty-one unremediated FUSRAP sites.176 This position was based on the NRC’s understanding that passage of the UMTRCA in 1978 did not extend its regulatory authority to the disposal of waste from mills that were inactive at the time of the Act’s passage.177 One of the most important features of the UMTRCA was a redefinition of by-product material under the AEA.178 It has been noted that this effort was made in part to close a “regulatory gap” and allow the NRC to regulate radioactive tailings, like those contaminating FUSRAP sites.179 Instead, the NRC claimed that because it was only required to attach licensing conditions regarding the remediation and disposal of mill tailings at sites licensed after passage of the UMTRCA, it did not have jurisdiction to deal with inactive sites.180 The NRDC countered that the NRC’s reading of the UMTRCA not only misconstrued Congress’ intent in passing the [*PG263]UMTRCA, but also was contrary to court decisions interpreting the Act.181

The NRDC first turned to the language of the UMTRCA.182 When the UMTRCA was passed, Congress concluded in its “Findings and Purpose” section “that there are ‘potential and significant radiation hazard[s] to the public’ from ‘mill tailings located at active and inactive mill operations.’”183 Further, the NRDC noted that Congress was careful to include programs that would remediate pollution created by mill tailings at both inactive and active mill sites.184 Taken together, the NRDC concluded that “Congress’ intent in enacting UMTRCA is clear from this language: UMTRCA applies to byproduct material generated at sites closed prior to passage of the Act in 1978.”185 The NRDC’s assertion that NRC regulatory authority extends to inactive sites is supported by language from the Congressional reports accompanying the UMTRCA.186

The NRDC also noted that attempts similar to the NRC’s efforts to distinguish waste created prior to 1978 from waste generated after 1978 have been rejected by the courts.187 In support of this position, the NRDC cited Kerr-McGee Chemical Corp. v. NRC.188 In Kerr-McGee, the court confronted a challenge to a NRC decision to treat two waste piles on the same site in West Chicago, Illinois differently “because of [their] history.”189 The NRC had attempted to distinguish waste materials on the basis of the objective for which the ore is first processed rather than their physical characteristics.190 The court was critical of the NRC’s reading of the UMTRCA, stating that the NRC’s interpretation of the UMTRCA would “frustrate the policy that Congress sought to implement.”191 It appeared as though the court found the NRC’s [*PG264]narrow interpretation of the section 11(e)(2) language to be wholly inconsistent with the UMTRCA’s purposes.192

As the court noted in Kerr-McGee, the UMTRCA was meant to augment “the existing regulatory regime to bring mill tailings within the NRC’s explicit authority and to establish a comprehensive program to provide for their safe disposal.”193 The court criticized the NRC’s interpretation of the UMTRCA, because “[it] recreate[d] the regulatory gap that the UMTRCA was designed to eliminate and excludes from regulation for the public health some of the radioactive tailings that Congress intended to bring within the [NRC’s] authority.”194 Other court rulings also support the NRDC’s contention that there is no reason to differentiate between pre-1978 and post-1978 waste.195

Mr. Adleman, speaking for the NRDC, also engaged in a discussion with the House Subcommittee on Energy and Power about the importance of sending radioactive FUSRAP material to NRC licensed disposal sites.196 Before FUSRAP was transferred from DOE to the Corps, FUSRAP waste was disposed of at NRC regulated sites197 or at “DOE-operated sites.”198 In his prepared statement submitted to the Subcommittee, Adelman attacked a decision made by the NRC that allowed the Corps to dispose of FUSRAP waste at RCRA disposal sites.199 He noted that there were very different “monitoring and containment” requirements between RCRA and NRC licensed landfills.200 In addition, Adelman stated that RCRA licensed landfills were designed to deal with hazardous waste, but had not incorporated specific standards needed to deal with radiological contaminants.201 [*PG265]He contended that disposal of FUSRAP waste at unlicensed facilities would pose various health and environmental risks.202

IV.  Making the Case For NRC Regulation of FUSRAP Waste: Is the NRDC Right?

In July 2001, the NRC and the Corps executed a Memorandum of Understanding (MOU) that sought to solidify the NRC’s decision on the NRDC’s petition.203 While the MOU recognized that the NRC had statutory authority over waste at least at some FUSRAP sites, the NRC essentially abdicated control over such waste by allowing for the suspension of its licensing authority.204 The MOU failed to critically examine the findings made in the NRDC case.205 In particular, the MOU simply accepted that the Corps did not need to obtain an NRC permit for its remediation activity at FUSRAP sites because of the permit waiver contained in CERCLA.206 Further, there was no discussion of the NRC’s finding that it had no authority to regulate section 11(e)(2) by-product waste created before, and not subject to an NRC license at the time of the passage of UMTRCA.207 While the NRC relies on both of these conclusions to avoid oversight of the Corps’ FUSRAP activity, both are vulnerable to attack and may not be correct as a matter of law.208

A.  Is the Corps Entitled to the CERCLA Permit Waiver?

Section 121(e) of CERCLA exempts most cleanup activities from federal, state, and local licensing requirements.209 The Corps claimed, and the NRC accepted, that this permit waiver shields Corps FUSRAP [*PG266]remediation actions from NRC licensing requirements.210 This contention is vulnerable for several reasons.211 First, the AEA has made clear that only DOE remedial actions are exempt from NRC licensing requirements.212 Second, the cases relied upon by the NRC and the Corps to justify extending the section 121(e) permit waiver to Corps FUSRAP activities do not necessarily support the NRC’s decision.213

1.  First Things First: Conflict Between the AEA and CERCLA

The NRC relied almost exclusively on the section 121(e) permit waiver in deciding that it did not have the authority to regulate the Corps’ FUSRAP activities.214 In its discussion of the applicability of the section 121(e) waiver, however, the NRC ignored the far more narrow AEA exemption.215 Under the AEA, only the Atomic Energy Commission (AEC) and its successor agencies (including DOE) are exempt from the NRC licensing requirements.216

In fact, DOE explicitly rejected the Corps’ contention that it could rely upon the AEA exemption to relieve itself of the burden of obtaining a NRC license.217 The AEA made it clear that it was the exclusive province of the AEC (and its successor agencies, ERDA and DOE) to dispose of radioactive materials.218 In describing the general authority of the AEC, Congress granted the AEC the power to “[d]ispose of radioactive materials and make other special dispositions for reasons of national security without regard to the provision of other laws.219 Therefore, it would appear that the NRC’s decision to allow the Corps to dispose of FUSRAP waste without an NRC license would contradict congressional intent.220

[*PG267]2.  A Dubious Proposition: The Corps’ Reliance on Section 121(e) Case Law

In response to the NRDC’s contention that the NRC should regulate its activities, the Corps claimed that its assertion that the section 121(e) permit waiver shielded its FUSRAP activities was supported by two decisions interpreting that waiver.221 The Corps acknowledged that the permit waiver provision “has been rarely addressed by the courts.”222 Nevertheless, the Corps cited two cases that purportedly supported its contention that the section 121(e) permit waiver covered its FUSRAP remediation activities.223

The applicability of these cases to the Corps’ FUSRAP responsibilities is dubious at best.224 For example, in City of Denver, the issue was whether or not Denver could use its zoning ordinance to stop remedial activity required by an EPA order.225 The EPA issued an order requiring a landowner to perform a remedial action on one of his parcels contaminated with radium.226 The City countered with an “Order to Cease and Desist” that stated that the land was not permitted to maintain a “radioactive disposal or dump site,” which it ostensibly would become if the landowner complied with the EPA order.227 The trial court found that the “Cease and Desist Order [was] void and unenforceable pursuant to the Supremacy Clause because it is in direct conflict with the [record of decision] and the EPA order . . . .”228 The trial court did not even reach the issue of whether the city’s action was barred by section 121(e).229 While the Court of Appeals did note that section 121(e)(1) could indeed override the city’s zoning ordinances, the Supremacy Clause framed the issue.230 In the case of the controversy surrounding the Corps’ activities, there is a conflict [*PG268]between two federal agencies with concurrent authority to regulate radioactive waste.231

The other case cited by the Corps provides more support for NRC’s decision not to regulate FUSRAP waste.232 In McClellan Ecological Seepage Situation (MESS) v. Cheney, an environmental group challenged the government’s contention that a waste pit at McClellan Air Force Base did not require a RCRA permit because the pit was the subject of a CERCLA remedial action.233 Absent the CERCLA remedial action, the court accepted that “a RCRA permit [would be] required for that activity.”234 The court, however, noted that “[s]ection 121(e) expressly provides that that activity does not have to be separately permitted.”235 The problem with relying on this decision to justify the NRC’s decision to allow the Corps to conduct its FUSRAP remedial actions without an NRC license is noted in the NRC decision.236 As the NRC discussed, the holding in McClellan “was later vacated on the basis of subject matter jurisdiction.”237

B.  Illiteracy: The NRC’s Reading of the UMTRCA and the
Folly of Differentiating Between By-Product Waste
Created Before and After 1978

Accepting for the sake of argument that the Corps is entitled to the section 121(e) permit waiver for its remedial work conducted at FUSRAP sites, it does not necessarily follow that this exemption extends to activities conducted wholly offsite.238 Even the NRC noted that the “waiver in section 121(e)(1) does not apply to offsite activities.”239 Nevertheless, the Corps has read the CERCLA waiver to cover offsite activities, such as disposal.240 The Corps has taken advantage of the [*PG269]NRC’s curious reading of the UMTRCA to dispose of FUSRAP waste at facilities not licensed by the NRC.241

The NRC decided that the language of the UMTRCA did not give it the authority to regulate FUSRAP waste at sites not licensed by the NRC at the time of the passage of UMTRCA.242 Certainly, the NRC is correct when it states that it “did not exercise jurisdiction at inactive sites where no license was in effect” prior to the passage of the UMTRCA.243 Prior to passage of the UMTRCA, uranium mill tailings were not included in the definition of “by-product material” in the Atomic Energy Act, and therefore not subject to NRC licensing.244 Even the court in Kerr-McGee noted that “[a]s early as 1960 . . . the AEC had concluded that because these mill tailings generally could not be classified as source material,” and, therefore, could not be regulated by the AEC.245

The fault with NRC’s interpretation of the UMTRCA, however, lies with its determination that it has no authority whatsoever to regulate the disposal of by-product waste created before 1978.246 In Kerr-McGee Chemical Corp. v. NRC, the NRC tried, and failed, to create a distinction between waste materials that essentially had the same physical characteristics.247 The NRC attempted in Kerr-McGee to draw a regulatory line based on the objective for which the “feedstock ore is first processed.”248 The court rejected that distinction because the definition of “‘by-product material’. . . adopted by Congress was designed to extend the NRC’s regulatory authority over all wastes resulted from the extraction and concentration of source materials in the course of the nuclear fuel cycle.”249

In the case of In re United States Army Corps of Engineers, the NRC is essentially attempting to draw a similar, illogical distinction to avoid the trouble of ensuring that the Corps dispose of all FUSRAP waste at [*PG270]NRC licensed facilities.250 This time, however, the NRC is trying to avoid its responsibility to ensure the safe disposal of radioactive waste by differentiating between waste materials created before and after passage of the UMTRCA.251 The NRDC has been quick to point out that it “make[s] no sense from a technical perspective to base regulation of radioactive waste on when the material was generated.”252 When dealing with radioactive materials that remain hazardous for thousands of years, time is “not a relevant factor . . . .”253 Even the Corps has noted that FUSRAP waste will remain radioactive for a long period.254

This loophole created by the NRC’s reading of the UMTRCA leads to absurd results.255 Of the twenty-one remaining FUSRAP sites, nine were subject to NRC licensing since passage of the UMTRCA.256 As a result, waste materials at these sites must be disposed of at NRC-licensed facilities.257 At the same time, the remaining twelve FUSRAP sites, containing similar by-product waste, were inactive mills at the passage of the UMTRCA.258 These sites were never subject to NRC licensing and therefore, according to the NRC and the Corps, the waste at these sites is not by-product waste under the AEA.259 Since the NRC does not consider waste at the inactive sites to be covered by the AEA, it can be disposed of at facilities that are not licensed by the NRC.260 This creates a situation almost identical to that in Kerr-McGee: two piles of almost identical waste can be disposed of in different ways, one at a site regulated by the NRC and another at a facility not equipped to handle radioactive waste.261

When Congress passed the UMTRCA, the NRC noted that “long-term release from tailings piles may pose a radiation health hazard if the piles are not effectively stabilized . . . .”262 In reaching its conclusion in Corps of Engineers, the NRC has reversed course by interpreting the UMTRCA to allow the Corps to dispose of radioactive waste mate[*PG271]rials at sites that are not equipped to handle them.263 In so doing, the NRC has undermined the rationale for passage of the UMTRCA, eliminating the public health threat created by uranium mill tailings.264

As noted by David Adelman during his testimony before Congress, allowing the Corps to dispose of FUSRAP waste at RCRA landfills is potentially hazardous.265 When Congress passed RCRA, it specifically excluded “source, special nuclear, or byproduct material as defined by the Atomic Energy Act” from the RCRA definition of solid waste.266 The logical import of this decision is clear: Congress did not intend to have waste regulated under the AEA further regulated by RCRA.267 Therefore, RCRA disposal facilities were not required to be designed to receive AEA waste.268 On the other hand, NRC licensed facilities are required to comply with tight restrictions on site design that are specifically tailored to reduce the chances of the release of radioactive waste.269 There are also specific guidelines to protect the general population,270 individuals who inadvertently venture onto the site,271 and on-site workers from releases.272 In other words, NRC licensed disposal facilities are specially designed to deal with radioactive waste in ways that RCRA sites are not.

Therefore, the NRC’s failure to act could have serious long-term consequences on both human health and the environment.273 The Corps has noted that long-term exposure to these materials can create “health risks from chronic exposure and ingestion/inhalation . . . .”274 FUSRAP waste generates large amounts of radon, which can cause cancer and genetic mutations.275 Further, “individuals may be directly [*PG272]exposed to gamma radiation from radioactivity in the tailings; and . . . radioactive and toxic substances from tailings may leach into water and then be ingested with food or water, or inhaled following aeration.”276 These potential dangers demonstrate the real risk that the NRC is taking by failing to ensure that the Corps dispose of its radioactive FUSRAP waste properly.277

Perhaps the strangest facet of the NRC’s decision is that after all of the FUSRAP remediation of mill tailings is completed, the NRC will have to license the disposal sites.278 While DOE is responsible for creating guidelines for the disposal of Title I UMTRCA waste, the NRC must license the site where FUSRAP mill tailings will ultimately reside.279 If nothing else, this makes the NRC’s contention that it does not have authority to regulate FUSRAP waste a bit specious.280 Rather than do it once and do it right, the NRC is allowing the Corps, an agency with little institutional knowledge of remediating nuclear waste, to dispose of radioactive waste at ill-suited sites.281 In the end, the NRC and DOE will both have to deal with the NRC’s failure to exercise its authority in its field of expertise.282

Conclusion

The NRC can surely be forgiven for its failure to assert its regulatory authority and attempting to avoid the FUSRAP abyss. FUSRAP was created at a time when the federal agencies responsible for energy research, development, and regulation were in a state of relative chaos.283 In fact, when the ERDA created FUSRAP, the NRC did not even exist.284 For twenty years after the regulatory functions of the ERDA were vested in the NRC, the NRC did not have to concern itself with FUSRAP.285 As long as DOE administered FUSRAP, its remedia[*PG273]tion activities were shielded from NRC regulation by an AEA exemption.286

Of course, Congress changed all of this when it shifted day-to-day responsibility for FUSRAP from DOE to the Corps.287 This change dropped the problem of FUSRAP squarely in the lap of the NRC.288 By removing FUSRAP from DOE control, the remediation and disposal of FUSRAP waste was no longer protected by the AEA exemption.289 While Congress ordered the Corps to remediate pursuant to CERCLA standards, DOE, the NRC, and EPA all have standards for the cleanup of radioactive materials.290 It is not surprising that the NRC had a difficult time determining the appropriate standards for the remediation and disposal of FUSRAP waste.

The strange birth and reckless transfer of FUSRAP from DOE to the Corps, however, does not excuse the NRC’s failure to regulate the manner in which the Corps administrates FUSRAP.291 By allowing the Corps to take advantage of the CERCLA permit waiver, the NRC has failed to acknowledge the fact that radioactive waste has consistently been subject to a different regulatory regime than other types of hazardous waste.292 Until the NRC’s decision in the case of In re United States Army Corps of Engineers, it was the exclusive province of the AEC and its successor agencies to handle and dispose of radioactive waste.293 The NRC has now allowed the Corps, an organization with almost no experience in handling radioactive materials, to administer a program created to remove radioactive waste without any NRC oversight.294

Further, the failure of NRC to adequately oversee the disposal of dangerous radioactive waste has allowed the Corps to dispose of this waste at sites that are not equipped to handle them.295 The NRC should recognize that Congress was concerned about the health threats posed by all radioactive mill tailings when it passed the UMTRCA.296 Waste materials located at inactive sites when the UMTRCA [*PG274]was passed are just as dangerous as those at active sites.297 Previous attempts by the NRC to distinguish between waste materials that have substantially similar physical characteristics have failed.298 This effort to distinguish between waste materials that remain dangerous for thousands of years should also be rejected.

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