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
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
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
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
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 Distict 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
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
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
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
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
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 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
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
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
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
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
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
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
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"
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 plaintiffs 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
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
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 hazards] 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
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
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?
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
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
between two federal agencies with concurrent authority to regulate radioactive waste.231
