Radioactive roulette: Should the Nuclear Regulatory Commission be regulating the United States Army Corps of Engineers' FUSRAP activities?

Boston College Environmental Affairs Law Review, 2002 by Hughey, Matthew

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