STAFF EXHIBIT 29

MEMORANDUM OF UNDERSTANDING BETWEEN

THE ENVIRONMENTAL PROTECTION AGENCY AND

THE NUCLEAR REGULATORY COMMISSION

CONSULTATION AND FINALITY ON DECOMMISSIONING AND DECONTAMINATION OF

CONTAMINATED SITES

I. Introduction

The Environmental Protection Agency (EPA) and the Nuclear Regulatory Commission (NRC), in

recognition of their mutual commitment to protect the public health and safety and the

environment, are entering into this Memorandum of Understanding (MOU) in order to establish a

basic framework for the relationship of the agencies in the radiological decommissioning and

decontamination of NRC-licensed sites. Each Agency is entering into this MOU in order to

facilitate decision-making. It does not establish any new requirements or rights on parties not

subject to this agreement.

II. Purpose

The purpose of this MOU is to identify the interactions of the two agencies for the

decommissioning and decontamination of NRC-licensed sites and to indicate the way in which

those interactions will take place Except for Section VI, addressing corrective action under the

Resource Conservation and Recovery Act (RCRA), this MOU is limited to the coordination

between EPA, when acting under its Comprehensive Environmental Response, Compensation

and Liability Act (CERCLA

undergoing decommission

has terminated its license.

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the procedures to govern

decommissioning of sites:

I1l. Background

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October 25, 2007 (2:o0pm)

OFFICE OF SECRETARY

RULEMAKINGS AND

ADJUDICATIONS STAFF

Docket No. 40-8838-ML

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STAFF EXHIBIT 29

MEMORANDUM OF UNDERSTANDING BETWEEN

THE ENVIRONMENTAL PROTECTION AGENCY AND

THE NUCLEAR REGULATORY COMMISSION

CONSULTATION AND FINALITY ON DECOMMISSIONING AND DECONTAMINATION OF

CONTAMINATED SITES

I. Introduction

The Environmental Protection Agency (EPA) and the Nuclear Regulatory Commission (NRC), in

recognition of their mutual commitment to protect the public health and safety and the

environment, are entering into this Memorandum of Understanding (MOU) in order to establish a

basic framework for the relationship of the agencies in the radiological decommissioning and

decontamination of NRC-licensed sites. Each Agency is entering into this MOU in order to

facilitate decision-making. It does not establish any new requirements or rights on parties not

subject to this agreement.

II. Purpose

The purpose of this MOU is to identify the interactions of the two agencies for the

decommissioning and decontamination of NRC-licensed sites and to indicate the way in which

those interactions will take place Except for Section VI, addressing corrective action under the

Resource Conservation and Recovery Act (RCRA), this MOU is limited to the coordination

between EPA, when acting under its Comprehensive Environmental Response, Compensation

and Liability Act (CERCLA) authority, and NRC, when a facility licensed by the NRC is

undergoing decommissioning, or when a facility has completed decommissioning, and the NRC

has terminated its license. It continues a basic policy of EPA deferral to NRC decision-making in

the decommissioning of NRC-licensed sites except in certain circumstances, and establishes

the procedures to govern the relationship between the agencies in connection with the

decommissioning of sites at which those circumstances arise.

II1. Background

An August 3, 1999, report (106-286) from the House Committee on Appropriations to

accompany the bill covering EPA's FY1999 Appropriations/FY 2000 budget request states:

Once again the Committee notes that the Nuclear Regulatory Commission

(NRC) has and will continue to remediate sites under its jurisdiction to a level that

fully protects public health and safety, and believes that any reversal of the

long-standing policy of the Agency to defer to the NRC for cleanup of NRC's

licensed sites is not a good use of public or private funds. The intercaction of the

EPA with the NRC, NRC licensees, and others, with regard to sites being

remediated under NRC regulatory requirements-when not specifically requested

..... by the NRC-has created stakeholder concerns regarding the authority and finality

of NRC licensing decisions, the duration and costsofsits--o l-uf-dthe

potential future liability of parties associated with affected sites. However, the

Committee recognizes that there may be circumstances at specific NRC

licensed sites where the Agency's expertise may be of critical use to the NRC. In

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the interest of ensuring that sites do not face dual regulation, the Committee

strongly encourages both agencies to enter into an MOU which clarifies the

circumstances for EPA's involvement at NRC sites when requested by the NRC.

The EPA and NRC are directed to report to the Committee on Appropriations no

later than May 1, 2000, on the status of the development of such an MOU.

Since September 8. 1983, EPA has generally deferred listing on the CERCLA National Priorities

List (NPL) those sites that are subject to NRC's licensing authority, in recognition that NRC's

actions are believed to be consistent with the CERCLA requirement to protect human health and

the environment. However, as EPA indicated in the Federal Register notice announcing the

policy of CERCLA deferral to NRC, if EPA "determines that sites which it has not listed as a

matter of policy are not being properly responded to, the Agency will consider listing those sites

on the NPL" (see 48 FR 40658).

EPA reaffirms its previous 1983 deferral policy. EPA expects that any need for EPA CERCLA

involvement in the decommissioning of'NRC licensed sites should continue to occur very

infrequently because EPA expects that the vast majority of facilities decommissioned under

NRC authority will be decommissioned in a manner that is fully protective of human health and

the environment. By this MOU, EPA agrees to a deferral policy regarding NRC decision-making

without the need for consultation except in certain limited circumstances as specified in

paragraphs V.C.2 and V.C.3.

One set of circumstances in which continued consultation should occur, pursuant to the

procedures defined herein, relates to sites at which the NRC determines during the license

termination process that there is radioactive ground-water contamination above certain limits.

Pursuant to its License Termination rule, NRC applies a dose criterion that encompasses all

pathways, including ground water. In its cleanup of sites pursuant to CERCLA, by contrast, EPA

customarily establishes a separate ground-water cleanup standard in which it applies certain

Maximum Contaminant Levels (MCLs, found at 40 CFR 141) promulgated for radionuclides and

other substances pursuant to the Safe Drinking Water Act. NRC has agreed in this MOU to

consult with EPA on the appropriate approach in responding to the circumstances at particular

sites with ground-water contamination at the time of license termination in excess of EPA's

MCLs or those sites for which NRC contemplates either restricted release or the use of alternate

criteria for license termination, or radioactive contamination at the time of license termination

exceeds the corresponding levels in Table I as provided in Section V.C.2.

IV. Principles

In carrying out their respective responsibilities, the EPA and the NRC will strive to:

1. Establish a stable and predictable regulatory environment with respect to EPA's

CERCLA authority in and NRC's decommissioning of contaminated sites.

2. Ensure, to the extent practicable, that the responsibilities of the NRC under the AEA and

the responsibilities of EPA under CERCLA are implemented in a coordinated and

--consistent-manner.-. . . . . . .. . .

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V. Implementation

A. Scope

This MOU is intended to address issues related to the EPA involvement under CERCLA in the

cleanup of radiologically contaminated sites under the jurisdiction of the NRC. EPA will continue

its CERCLA policy of September 8, 1983, which explains how EPA implements deferral

decisions regarding listing on the NPL of any sites that are subject to NRC's licensing authority.

The NRC's review of sites under NRC jurisdiction indicates that few of these sites have

radioactive ground-water contamination in excess of the EPA's MCLs. At those sites at which

NRC determines during the license termination process that there is radioactive ground-water

contamination above the relevant EPA MCLs, NRC will consult with EPA and, if necessary.

discuss with EPA the use of flexibility under EPA's phased approach to addressing ground-water

contamination. NRC has agreed in this MOU to consult with EPA on the appropriate approach in

responding to the circumstances at particular sites where ground-water contamination will

exceed EPA's MCLs, NRC contemplates either restricted release or the use of alternate criteria

for license termination, or radioactive contamination at the time of license termination exceeds

the corresponding levels in Table 1 as provided in Section V.C.2.

B. General

Each agency will keep the other agency generally informed of its relevant plans and schedules,

will respond to the other agency's requests for information to the extent reasonable and

practicable, and will strive to recognize and ameliorate to the extent practicable any problems

arising from implementation of this MOU.

C. NRC Responsibilities

1. NRC will continue to ensure remediation of sites under its jurisdiction to a level that fully

protects public health and safety.

2. For NRC-licensed sites at which NRC determines during the license termination process

that there is radioactive ground-water contamination in excess of EPA's MCLs, or for which

NRC contemplates either restricted release (10 CFR 20.1403) or the use of alternate

criteria for license termination (10 CFR 20.1404), NRC will seek EPA's expertise to assist

in NRC's review of a decommissioning or license termination plan. In addition, NRC will

consult with EPA if either the planned level of residual radioactive soil concentrations in the

proposed action or the actual residual level of radioactive soil concentrations found in the

final site survey exceed the radioactive soil concentration in Table 1. With respect to all

such sites, the NRC will consult with EPA on the application of the NRC decommissioning

requirements and will take such action as the NRC determines to be appropriate based on

its consultation with EPA. For example, if NRC determines during the license termination

pi~ocess that there will be radioactive ground-water contamination in excess of EPA's

MCLs at the time of license termination, then NRC will discuss with EPA the use of

flexibility under EPA's phased approach for addressing ground-water contamination. If

NRC does not adopt recommendations provided by the EPA, NRC will inform EPA of the

basis for its decision not to do so.

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3. NRC will defer to EPA regarding matters involving hazardous materials not under NRC's

jurisdiction.

D. EPA Responsibilities

1. If the NRC requests EPA's consultation on a decommissioning plan or license termination

plan, EPA will provide, within 90 days of NRC's notice to EPA, written notification of its

views on the matter.

2. Consistent with this MOU, EPA agrees to a policy of deferral to NRC decision making on

decommissioning without the need for consultation on sites other than those presenting

the circumstances described in Sections V.C.2 and V.C.3. The agencies will consult with

each other pursuant to the provisions of this MOU with respect to those sites presenting

the circumstances described in Sections V.C.2 and V.C.3. EPA does not expect to

undertake CERCLA actions related to radioactive contamination at a site that has been

decommissioned in compliance with the NRC's standards, including a site addressed

under Section V.C.2, despite the agencies decision to engage in consultation on such

sites. EPA's deferral policy, and its expectation of not taking CERCLA action, continues to

apply to sites that are covered under Section V.C.2.

3. For NRC-licensed sites presenting the circumstances described in Section V.C.2 and for

which NRC has not adopted the EPA recommendation, EPA will consult with NRC on any

CERCLA actions EPA expects to take if EPA does not agree with the NRC's decision.

4. EPA will resolve any CERCLA concerns involving hazardous substances outside of NRC's

jurisdiction at NRC licensed sites, including concerns involving hazardous constituents that

are not under the authority of NRC. As provided in Section V.D.2, EPA under CERCLA will

defer or consult with NRC as appropriate regarding matters involving AEA materials under

NRC's jurisdiction.

E. Other Provisions

1. Nothing in this MOU shall be deemed to establish any right nor provide a basis for any

action, either legal or equitable by any person, or class of persons challenging a

government action or failure to act.

2. Each agency will appoint a designated contact for implementation of this MOU. The

designated individuals will meet at least annually or at the request of either agency to

review NRC-licensed sites that meet the criteria for consultation pursuant to Section V.C.2.

The NRC designated contact is the Director, Office of Nuclear Materials Safety and

Safeguards, and the EPA designated contact is the Director Office of Emergency and

Remedial Response, or as each designee delegates.

3. This MOU will remain in effect until terminated by the written notice of either party

- - -submitted-six months in-advance of-termination.

4. Within six months of the execution of this MOU, each party will revise its guidance to its

Headquarters and Regional Offices to reflect the terms of this MOU.

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5. If differences arise that cannot be resolved by senior EPA and NRC management within 90

days, then either senior EPA or NRC management may raise the issue to their respective

agency head.

Section VI. Corrective Action under RCRA

Some NRC sites undergoing decommissioning may be subject to cleanup under RCRA

corrective action authority. This authority, administered either by EPA or authorized states,

requires cleanup of releases of hazardous waste or constituents at hazardous waste treatment,

storage or disposal facilities. NRC sites subject to RCRA corrective action will be expected to

meet RCRA cleanup standards for chemical contamination within EPA's jurisdiction. EPA

Office of Solid Waste's policy is to encourage regional and State program implementers to

coordinate RCRA cleanups with decommissioning, as appropriate, at those NRC sites subject

to EPA's corrective action authority.1

EPA will continue to support coordination of cleanups under the RCRA corrective action

program with decommissioning at NRC sites consistent with its March 5, 1997 policy. In

addition, under RCRA the majority of States are authorized to implement the corrective action

requirements. States are not signatories to this MOU; however, EPA will encourage States to

act in accordance with this policy where they have responsibility for RCRA corrective action at

NRC sites undergoing decommissioning.

Items I and 3 of the "Other Provisions" of Section V. apply to this section.

SEP 30 2x_______ L)

Christine T. Whitman Date Ricard A. MeserveD

Administrator Chairman

US Environmental Protection Agency US Nuclear Regulatory Commission

ate

'See letter from Elizabeth Cotsworth, Acting Director, Office of Solid Waste to James R.

Roewer, USWAG, dated March 5, 1997.

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MOU Table 1: Consultation Triggers for Residential

and Commercial/Industrial Soil Contamination

Except for radium-226, thorium-232, or total uranium, concentrations should be

aggregated using a sum of the fraction approach to determine site specific consultation

trigger concentrations. This table is based on single contaminant concentrations for

residential and commercial/industrial land use when using generally accepted exposure

parameters. Table users should select the appropriate column based on the site's

reasonably anticipated land use.

Residential Industrial/Commercial

Radionuclide Soil Concentration Soil Concentration

H-3 228 pCi/g 423 pCi/g

C- 14 46 pCi/g 123,000 pCi/g

Na-22 9 pCig 14 pCi/g

S-35 19,600 pCi/g 32,200,000 pCi/g

CI-36 6 pCi/g 10,700 pCi/g

Ca-45 13,500 pCi/g 3,740,000 pCi/g

Sc-46 105 pCi/g 169 pCi/g

Mn-54 69 pCi/g 112 pCi/g

Fe-55 269,000 pCi/g 2,210,000 pCi/g

Co-57 873 pCi/g 1,420 pCi/g

Co-60 4 pCi/g 6 pCi/g

Ni-59 20,800 pCi/g 1,230,000 pCi/g

Ni-63 9,480 pCi/g 555,000 pCi/g

Sr-90+D 23 pCi/g 1,070 pCi/g

Nb-94 2 pCi/g 3 pCi/g

Tc-99 25 pCi/g 89,400 pCi/g

1-129 60 pCi/g 1,080 pCi/g

Cs-134 16 pCi/g 26 pCi/g

Cs-137+D 6 pCi/g 11 pCi/g

Eu-152 4pCi/g8 7pCig

Eu-.154 5 pCi/g B pCi/g

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MOU Table 1: Consultation Triggers for Residential

and Commercial/Industrial Soil Contamination

Except for radium-226, thorium-232, or total uranium, concentrations should be

aggregated using a sum of the fraction approach to determine site specific consultation

trigger concentrations. This table is based on single contaminant concentrations for

residential and commercial/industrial land use when using generally accepted exposure

parameters. Table users should select -the appropriate column based on the site's

reasonably anticipated land use.

Residential Industrial/Commercial

Radionuclide Soil Concentration Soil Concentration

Ir-192 336 pCi/g 544 pCi/g

Pb-210+D 15 pCi/g 123 pCi/g

Ra-226 5 pCi/g 5 pCi/g

Ac-227+D lOpCi/g 21 pCi/g

Th-228+D 15 pCi/g 25 pCi/g

Th-232 5 pCi/g 5 pCi/g

U-234 401 pCi/g 3,310 pCi/g

U-235+D 20 pCi/g 39 pCi/g

U-238+D 74 pCi/g 179 pCi/g

total uranium 47 mg/kg 1230 mg/kg

Pu-238 297 pCi/g 1,640 pCi/g

Pu-239 259 pCi/g 1,430 pCilg

Pu-241 40,600 pCi/g 172,000 pCi/g

Am-241 187 pCi/g 568 pCi/g

Cm-242 32,200 pCi/g 344,000 pCi/g

Cm-243 35 pCi/g 67 pCi/g

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