ML15167A323 

UNITED STATES 

NUCLEAR REGULATORY COMMISSION 

OFFICE OF NUCLEAR MATERIAL SAFETY 

AND SAFEGUARDS 

WASHINGTON, DC 20555 

May 9, 2016 

NRC REGULATORY ISSUE SUMMARY 2016-06

NRC REGULATION OF RADIUM-226 UNDER MILITARY CONTROL AND FOR 

COORDINATION ON CERCLA RESPONSE ACTIONS AT DOD SITES WITH RADIOACTIVE 

MATERIALS 

ADDRESSEES

All Agreement State Radiation Control Program Directors and State Liaison Officers; all 

Radiation Control Program Directors and State Liaison Officers; U.S. Department of Defense’s 

(DoD’s) Director of Environment, Safety and Occupational Health; all U.S. Air Force and 

U.S. Navy master materials license (MML) contacts; all U.S. Army contacts with specific 

U.S. Nuclear Regulatory Commission (NRC) licenses. 

INTENT

The NRC is issuing this regulatory issue summary (RIS) for three purposes. First, this RIS 

clarifies which discrete sources of radium-226 under military control are subject to NRC 

regulation as byproduct material under the Atomic Energy Act of 1954, as amended (AEA). 

This RIS clarifies the discussion of the NRC’s jurisdiction over radium-226 under military control 

in the NRC final rule “Requirements for Expanded Definition of Byproduct Material” (published in 

the Federal Register (FR), 72 FR 55864 (October 1, 2007)) (NARM Rule). Additionally, this RIS 

describes regulatory approaches to implement the NRC’s authority over contamination and 

items and equipment containing naturally occurring and accelerator-produced radioactive 

material (e.g., radium-226) at military sites. Further, this RIS describes the NRC and DoD’s 

coordination and agreement on Comprehensive Environmental Response, Compensation and 

Liability Act (CERCLA) response actions at military sites with unlicensed AEA byproduct, 

source, or special nuclear materials under a Memorandum of Understanding (MOU) dated 

April 28, 2016. 

BACKGROUND INFORMATION

The Energy Policy Act of 2005 (EPAct) expanded the AEA’s definition of byproduct material to 

include discrete sources of radium-226, discrete sources of naturally occurring radioactive 

material, and accelerator-produced radioactive material for use for a commercial, medical, or 

research activity (collectively, these materials are referred to as NARM). The NRC has received 

inquiries from different branches of the military requesting clarification of the scope of the NRC’s 

jurisdiction over NARM. Section 651(e)(3)(A) of the EPAct (11e.(3)(A) of the AEA; 

42 U.S.C. 2014(e)(3)(A)) amended the definition of byproduct material to include “any discrete 
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source of radium-226 that is produced, extracted, or converted after extraction, before, on, or 

after [August 8, 2005,] for use for a commercial, medical, or research activity.” Neither the 

EPAct nor the AEA define the term “discrete source.” The NRC established by regulation a 

definition of the term “discrete source” to be used for the purposes of the new definition of 

byproduct material. Discrete source is defined at Title 10 of the Code of Federal Regulations

(10 CFR) sections 20.1003, 30.4, 110.2, and 150.3 as “a radionuclide that has been processed 

so that its concentration within a material has been purposely increased for use for commercial, 

medical, or research activities.” In addition, the statements of consideration (SOC) for the 

NARM Rule noted that “once a discrete source meets the definition of byproduct material, any 

contamination resulting from the use of such discrete sources of this byproduct material will also 

be considered byproduct material” (72 FR 55871). 

As explained in the SOC for the NARM Rule, the Commission’s interpretation of the EPAct is 

that the NRC has jurisdiction only over those discrete sources of radium-226 used by the 

military in medical or research activities or in a manner similar to a commercial activity. The 

NRC does not have jurisdiction over radium-226 used by the military in military operations 

because, as the NRC noted in SOC for the NARM Rule, to do otherwise would “vitiate any 

distinction that the EPAct intended to make for military use...” (72 FR 55867). The SOC 

clarified that the military use exclusion in the EPAct only applies to a certain type of military use: 

military operations. Military operations includes that which is traditionally understood as the 

military’s primary mission for national defense, i.e., warfare, combat, battlefield missions, and 

training for such missions. The term military operations also includes “material still under 

control of the military, i.e., in storage, or material that may be subject to decontamination and 

disposal.” 

The SOC provided that the NRC would interact with DoD to obtain a common understanding of 

the uses of discrete sources of radium-226 and resolve any potential conflicts on a case-bycase basis (72 FR 55867). Consequently, the NRC staff had numerous interactions with DoD 

on this matter. The NRC and DoD discussed the historical uses, current military activities, and 

management of discrete sources of radium-226. Through these interactions, it became 

apparent to the staff that there is uncertainty over the precise meaning and scope of the phrase 

“material still under control of the military, i.e., material in storage, or material that may be 

subject to decontamination or disposal.” This uncertainty has led staff to believe that a generic 

communication is required to ensure that NRC regulations are appropriately implemented. 

On February 16, 2011, the NRC staff prepared a Commission paper that discussed the 

military’s uses of radium-226, identified issues, and recommended approaches to clarify and 

implement the NRC’s regulatory jurisdiction over certain types of military use of radium-226 

(SECY-11-0023, “Jurisdiction for Military Operational Radium-226,” ADAMS Accession 

No. ML110110345). On March 24, 2011, the Commission responded to the staff’s 

recommendations in SECY-11-0023 by approving publication of a draft guidance document that 

would clarify these issues (SRM-SECY-11-0023 (ADAMS Accession No. ML110830952)). On 

July 8, 2011, the staff’s published its draft guidance, in the form of a draft RIS, in the Federal 

Register (76 FR 40282) for public comment. Enclosure 1 provides summaries of the public 

comments received and the NRC staff’s responses.
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SUMMARY OF ISSUE

This RIS addresses the following issues: 1) clarification of radium-226 under military control 

that is subject to NRC’s jurisdiction and 2) acceptable regulatory approaches to and 

implementation of the NRC’s jurisdiction. Benefits resulting from this RIS and the MOU 

approach are also described. 

Issues Addressed in this RIS 

1) Clarification of NRC Jurisdiction Over Certain Types of Radium-226 under Military Control 

This RIS clarifies that if radium in the military’s possession is not used in or intended for use in 

military operations, then it is subject to the NRC regulations. The NRC very specifically 

discussed the scope of this expanded radium jurisdiction in the SOC, paying close attention to 

its effect on DoD. The NRC has authority under Section 651(e)(3) of the EPAct over certain 

military radium uses and not others. The exclusion from the coverage of the EPAct only applies 

to a certain type of military use, i.e., NARM used for military operations. As the NRC stated in 

the SOC to the NARM Rule, if “[radium-226] is intended for use in military operations, it is 

excluded from coverage of this rule...” (72 FR 55867) (emphasis added). If the military does 

not use or does not intend to use radium under its control in military operations, then this 

radium is subject to the NRC’s regulatory authority. 

With respect to material in storage or material that may be subject to decontamination and 

disposal, radium in the military’s control that the military intends to use in military operations is 

excluded from the NRC’s regulatory authority. Items and equipment in storage that the military 

does not intend to use for military operations are subject to the NRC’s regulatory authority. This 

clarification does not change the NRC’s previously adopted regulatory framework. 

Military radium-226 that originated from a commercial supplier is byproduct material, except 

during its use by the military in traditional military operations. When the military is no longer 

using commercially produced radium-226 for traditional military operations and does not intend 

to use the radium for traditional military operational use in the future, then the radium-226 is 

subject to NRC’s regulatory authority. The SOC statement that contamination resulting from 

degradation of byproduct material will also be considered byproduct material (72 FR 55871) will, 

therefore, apply to military radium-226 contamination because this radium-226 is no longer 

being used or intended for use in military operations. For example, degradation of buried 

markers can result in contamination of the surrounding soil or ground water. This contamination 

is not considered military operational use. In addition, the storage of material or equipment not 

intended for future military operations, removal of dials and gauges after their usable life, and 

remediation of radium-226 contamination are similar to commercial activities and thus are 

subject to NRC’s regulatory authority. This clarification is consistent with the NARM Rule SOC 

statement that material that “has been used...in a manner similar to a commercial activity, 

e.g., military museums, is covered by the EPAct and [the NARM] rule” (72 FR 55867). 

This clarification is consistent with the definition of byproduct material in the EPAct and the 

NRC’s regulations. The above clarification is also consistent with the NRC’s practice of 

regulating other military radioactive material, except when the material is used in traditional 

military operations. 
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To further clarify, the following specific categories of discrete sources of radium-226 under 

military control are subject to the NRC’s regulatory authority: 

• Contamination 

Examples include contamination in structures; soil; ground water; sewers or storm 

drains; and degraded devices and residue from radium paint shops buried in landfills. 

For the purposes of determining NRC’s jurisdiction over radium-226 contamination on 

DoD sites, the NRC distinguishes “confirmed” and “suspected” contamination. The term 

“confirmed” is used for “known” contamination and the term “suspected” is used for 

“potential for” contamination. Contamination can be confirmed based on a wide range of 

data, including: 

1) very limited data that provides the basis for further investigation 

2) limited data that can be reasonably extrapolated to a larger area such as a burial 

site or landfill or sewer lines with limited access for sampling 

3) extensive survey or sampling data considered representative of an entire area 

Contamination can also be confirmed based on documented descriptions of known 

radioactive material that was placed in certain specific areas in the past, such as records 

of disposal in a base landfill. Contamination can be on active military installations or 

base realignment and closure (BRAC) sites that are planned for transfer to the public 

and redeveloped by local governments or others after remediation using the CERCLA 

process. 

The NRC’s jurisdiction applies to radium-226 contamination that has been confirmed. 

Sites where contamination is only suspected, based on historical activities conducted on 

a military base, should be tracked and appropriately controlled by the military. If 

suspected contamination is later confirmed, then this contamination is subject to NRC 

jurisdiction. 

With respect to firing ranges, the NRC has jurisdiction over confirmed radium 

contamination on closed firing ranges. If DoD is using the CERCLA process for 

remediation, then the NRC would exercise its jurisdiction and be involved in the 

remediation process pursuant to the terms of the MOU. The radium contamination on 

operational firing ranges is not subject to the NRC regulation because this radium is 

used in traditional military operations on these firing ranges (e.g., the use of targets that 

contain radium). This clarification is consistent with the SOC in the NARM Rule, which 

explains that the EPAct excludes from NRC’s jurisdiction military use of radium in 

“...training for battlefield missions” (72 FR 55901). Further, the risk for exposure at 

these active firing ranges is low because of the DoD range controls that limit access due 

to range activities and unexploded ordnance. The NRC conducted independent dose 

estimates for targets on firing ranges. The results for typical radium items on targets 

(approximately in the range of ~0.01 to 10 millirem) are consistent with the DoD’s 

comment that the dose consequence will be low if there were an exposure. These 

results are well below NRC’s public dose limit in 10 CFR 20.1301, of 100 millirem per 

year. 
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Specifically, NRC staff calculated doses to both workers and members of the public 

using calculations provided in the International Atomic Energy Agency Code of Conduct 

on the Safety and Security of Radioactive Sources (Jan. 2004). These calculations, 

discussed further in ADAMS at Accession No. ML16111B303, assumed a range of 

typical radium items on targets and that DoD controls would fail and allow access to the 

firing range. 

• Items and equipment not currently used in traditional military operations and no longer 

intended for future use in traditional military operations 

Examples of these items and equipment include vehicles, aircraft, or other equipment in 

storage that the military is no longer using and that is not intended to be used in the 

future and could be decontaminated by removing radium-226 instruments, dials, or 

components in preparation for release of the equipment or vehicles to the public. These 

items could also include dials or gauges that the military decides are no longer intended 

for future use in traditional military operations. These items fall under NRC jurisdiction. 

DoD informed the NRC that the Air Force and Navy currently regulate radium items and 

equipment in storage or used for calibration or research and development under the Air 

Force and Navy MMLs. The Army found that most of its items were already disposed of, 

and those remaining are scheduled for disposal. The Army controls the number of 

museum items to remain below the 100 items limit allowed under the NRC general 

license for museums. The NRC will request that DoD confirm in a letter to the NRC that 

all radium items and equipment are regulated under an appropriate NRC license, i.e., 

MML or specific license. 

 

2) Acceptable Regulatory Approaches and Implementation of the NRC’s Jurisdiction: MOU for 

Remediation of Contamination 

For confirmed byproduct, source, or special nuclear material contamination for which DoD is 

taking CERCLA response actions, the Commission approved the use of an MOU approach 

instead of licensing. The Commission also directed the staff to periodically evaluate the 

effectiveness of the MOU. The final MOU is available in ADAMS at Accession 

No. ML16092A294. 

The purpose of the MOU is to minimize dual CERCLA and AEA regulation at DoD 

environmental remediation sites while ensuring protection of public health, safety, and the 

environment. The MOU documents the NRC and DoD’s roles, responsibilities, and relationship 

concerning DoD’s remediation of AEA material under the CERCLA process. The specifics of an 

implementation plan for NRC’s involvement at DoD sites are given in the MOU provisions but 

will be jointly refined based on future experience, if necessary. 

The two levels of NRC involvement under the MOU are “stay informed” and “monitoring.” These 

approaches do not involve licensing and, accordingly, the staff does not conduct licensing 

reviews. Under a stay-informed approach, for sites where the U.S. Environmental Protection 

Agency (EPA) has regulatory authority (e.g., sites listed on the NPL), the staff stays informed of 

the radiological aspects of remediation activities but will rely on the CERCLA process and EPA’s 

regulatory oversight. Under a monitoring approach, the NRC will monitor sites where the EPA 

has no regulatory authority or oversight (e.g., sites not listed on the NPL) but DoD is 

remediating the site under the Defense Environmental Restoration Program, 10 U.S.C. 2700 et 
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seq., as amended (DERP), which uses the CERCLA remediation process. Further details about 

NRC’s “stay informed” and “monitoring” approaches are provided within the MOU. 

As part of NRC’s activities under an MOU, the NRC will inquire about the appropriate 

Agreement or non-Agreement State's involvement with DoD’s radiological remediation. On a 

case-by-case basis, the NRC may consider the results of ongoing State reviews that support the 

CERCLA remediation process. Agreement States do not have authority to regulate AEA 

material possessed by Federal entities under their Section 274 agreements. However, 

Agreement States can assist and provide input as part of the CERCLA remediation process. 

Benefits resulting from the RIS and MOU Approach 

The following are considered by the NRC staff to be benefits from the work that has gone into 

this RIS and the MOU. These are described in greater detail in Enclosure 7 of SECY-14-0082. 

• Avoids confusion by clarifying which radium in military possession is subject to NRC 

jurisdiction. 

• Avoids dual regulation from the overlap of the AEA and CERCLA for DoD remediation of 

AEA radioactive material subject to the NRC’s jurisdiction. 

 

• Clarifies the regulatory approach for unlicensed AEA material, including radium-226, 

subject to NRC jurisdiction. 

• Avoids the potential for reopening of completed military remediation and associated 

impacts on redevelopment if NRC comments are appropriately addressed. 

• Provides independent Federal oversight to ensure protection of public health and safety. 

BACKFITTING AND ISSUE FINALITY DISCUSSION

This RIS requires no action or written response. Any action that licensees take to implement 

changes or procedures in accordance with the information contained in this RIS ensures 

compliance with current regulations, is strictly voluntary, and, therefore, is not a backfit under 

any of the backfitting provisions contained in 10 CFR 50.109, 70.76, 72.62, 76.76, or the issue 

finality provision of 10 CFR Part 52, “Licenses, Certifications, and Approvals for Nuclear Power 

Plants.” Consequently, the staff did not perform a backfit analysis. 

FEDERAL REGISTER NOTIFICATION

A notice of opportunity for public comment on this RIS was published in the Federal Register

(76 FR 40282) on July 8, 2011. Comments were received from States, other Federal agencies, 

and members of the public. The staff considered all comments received. The staff’s evaluation 

of the comments is publicly available through Enclosure 1 of this RIS and through the NRC’s 

ADAMS under Accession No. ML15167A324. 
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CONGRESSIONAL REVIEW ACT 

The NRC has determined this RIS is a rule as designated by the Congressional Review Act 

(5 U.S.C. §§ 801-808). However, the Office of Management and Budget (OMB) has determined 

this RIS is not a major rule as designated by the Congressional Review Act.

 

PAPERWORK REDUCTION ACT STATEMENT

This RIS does not contain any information collection requirements, and, therefore, is not subject 

to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). 

CONTACT 

This regulatory issue summary requires no specific action nor any written response. If you have 

any questions about this summary, please contact the technical contact listed below or the 

appropriate regional office. 

 /RA/ 

 Daniel Collins, Director 

 Division of Material Safety, State. Tribal, 

 and Rulemaking Programs 

 Office of Nuclear Material Safety 

 and Safeguards 

Contact: Richard Chang, NMSS 

 301-415-5563 

 E-mail: Richard.Chang@nrc.gov

Enclosure: 

1. NRC Response to Public Comments 
RIS 2016-06 

Page 7 of 7 

CONGRESSIONAL REVIEW ACT 

The NRC has determined this RIS is a rule as designated by the Congressional Review Act 

(5 U.S.C. §§ 801-808). However, the Office of Management and Budget (OMB) has determined 

this RIS is not a major rule as designated by the Congressional Review Act. 

PAPERWORK REDUCTION ACT STATEMENT

This RIS does not contain any information collection requirements, and, therefore, is not subject 

to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). 

CONTACT 

This regulatory issue summary requires no specific action nor any written response. If you have 

any questions about this summary, please contact the technical contact listed below or the 

appropriate regional office. /RA/ 

 Daniel Collins, Director 

 Division of Material Safety, State. Tribal, 

 and Rulemaking Programs 

 Office of Nuclear Material Safety 

 and Safeguards 

Contact: Richard Chang, NMSS 

 301-415-5563 

 E-mail: Richard.Chang@nrc.gov

Enclosure: 

1. NRC Response to Public Comments 

ADAMS Accession No.: ML15167A323 Package: ML15167A324 *via email

OFFICE NMSS/DUWP/MDB NMSS/DUWP/MDB NMSS/DUWP/MDB NMSS/DUWP/MDB 

NAME RChang RJohnson CHolston MNorato 

DATE 6/ 18 /15 6/18 /15 7/ 7 /15 7/ 28/15 

OFFICE NMSS/MSTR/MSEB OIS/CSD/FPIB OCG (CRA) OGC (NLO) 

NAME AMcIntosh DCullison* JSuttenberg* EHouseman* 

DATE 8/ 4 /15 3/3/16 4/14/16 4/14/16 

OFFICE QTE* NMSS/DUWP NMSS/DUWP NMSS/MSTR 

NAME Jay Dougherty AKock JTappert DCollins 

DATE 2/8/16 4/27/16 4/27/16 5/9/16 

OFFICIAL RECORD COPY