DRC-2018-003166 - 0901a068807df805

Dv of '
and RadiatIon Control
HOLLAN D HART_ PI
April 2, 2018
VIA EMAIL & U.S. MAIL
Scott T. Anderson, Director
Division of Waste Management and Radiation Control
Department of Environmental Quality
195 North 1950 West
P.O. Box 144880
Salt Lake City, UT 84114-4880
Dear Mr. Anderson:
APR 0 2 2018 Amanda Smith
Of Counsel
Phone [phone]
Fax [phone] [e-mail]
DRC-2618-oonoco
Thank you for your response letter dated August 9, 2017, to a question posed by Mr. Vern
Rogers regarding the legal basis for requiring the United States Department of Energy ("DOE") to
enter into a Tri-Party Agreement ("Agreement") with Energysolutions and the State of Utah
regarding land transfer and ownership at the Clive Facility. To clarify, EnergySolutions fully
supports and plans to continue to work towards an Agreement as previously discussed by the
parties. However, the Agreement is not properly part of the Safety Evaluation Report (SER) for
the Depleted Uranium Performance Assessment (DUPA) and should not be conflated with the
approval of the DUPA. To do so would require DOE to illegally take stewardship of an operating
facility. As you noted, Mr. Roger's question was framed in the following way:
The US Department of Energy has been and continues to be one of
the Clive Facility's highest volume customers. We have received and
disposed of significant volumes of US DOE waste in the Mixed
Waste Cell, closed LARW Cell, and in the currently licensed Class
A West Cell without need of a Tri-Party Agreement. Please provide
citation of the legal statute (federal or state) or regulatory rule on
which UDEQ is requiring a Tri-Party Agreement be executed prior
to authorizing disposal of Depleted Uranium (DU).
In response to this question, your letter states that the present draft of the Agreement fails
to meet requirements set forward in state and federal rules. Specifically, you cite Utah
Administrative Code R313-25-29 regarding land ownership requirements that are substantively
the same as the federal requirement in 10 C.F.R. §61.59(a), as well as R313-25-3(8), and conclude
that the present draft of the Agreement fails to meet the state and federal requirements because it
is not legally binding or enforceable. Your response letter also raises the question of whether the
exemption granted by the former Radiation Control Board would apply to disposal of depleted
uranium ("DU") in significant quantities. To address these concerns, this letter outlines the
Scott T. Anderson
April 2, 2018
Page 2
continued validity of the exemption and the basis for the Agreement, describes the applicable
background of the Clive Facility and analyzes the relevance of R313-25-9(5) to this issue.
I. Background on the Tri-Party Agreement
The genesis of the Agreement was the State of Utah's desire to have a written agreement
between the State of Utah, EnergySolutions and DOE clarifying DOE's long-term stewardship
responsibilities for continued disposal of DU at the Clive Facility. This request came about during
a series of discussions and correspondence from February to April of 2010 between Ines Triay,
Assistant Secretary for Environmental Management at DOE, Governor Gary Herbert and Val
Christianson from EnergySolutions regarding the shipments of DU to Utah from Savannah River
Site. See letter from Ines Triay, Assistant Sec'y for Envtl. Mgmt., Dep't of Energy, to Gary R.
Herbert, Governor, State of Utah (Apr. 22, 2010) (attached); and letter from Gary R. Herbert,
Governor, State of Utah, to Ines Triay, Assistant Sec' y for Envtl. Mgmt., Dep't of Energy (Mar.
19, 2010) (attached). As context for these discussions, consider that the Vitro Tailings are located
on land owned by DOE and the 1le(2) waste cells, which are located on land currently owned by
EnergySolutions, will be transferred to DOE upon closure. Because DOE has a vested interest in
the Clive Facility, the Agreement as discussed, would contemplate a transfer of ownership, post-
closure, of the Class A West cell as well as those already owned or slated for transfer to DOE upon
closure.
Utah was requesting, and DOE was offering, an agreement that was consistent with the
2010 Memorandum of Agreement ("MOA") between DOE and the State of Texas Commission on
Environmental Quality ("TCEQ") pertaining to the long-term stewardship of low-level radioactive
waste ("LLRW") at a proposed site in Andrews County, Texas. The Texas MOA "does not
represent any binding legal commitment from DOE." See letter from Ines Triay, Assistant Sec'y
for Envtl. Mgmt., Dep't of Energy, to Val Christensen, President, EnergySolutions (Feb. 16, 2010)
(attached). Again, as the attached letters make clear, DOE's communications with both Governor
Herbert and EnergySolutions contemplated entering into a "comparable" agreement to the
agreement entered into between DOE and TCEQ. DOE can only exercise its authority to accept
title to a LLRW disposal site under limited circumstances where the NRC has determined that
specific requirements have been met after site closure and decommissioning. See Nuclear Waste
Policy Act, 42 U.S.C. § 10171(b)(1). To effectively transfer ownership, 10 CFR §61.14(a) requires
that the license must also be transferred to the underlying owner and that transfer must follow
closure and the period of post-closure observation.
11. EnergySolutions' Land Ownership Exemption for Class A Waste Remains in Effect and
is Not Subiect to Limitations Based on the Quantity of DU.
DU was classified as a Class A waste by operation of federal regulation 10 C.F.R. §
61.55(a)(6), which designates waste as Class A if it does not contain any of the listed nuclides. In
its original DU classification, the Nuclear Regulatory Commission (the "NRC") declined to
establish limits on uranium-bearing wastes and found in 1982 that these wastes "do not present a
sufficient hazard to warrant limitation on the concentration," 47 Fed. Reg. 57446, 57456 (Dec. 27,
1982). More recently, the NRC has proposed a rulemaking that would require a site specific
Scott T. Anderson
April 2, 2018
Page 3
performance assessment (PA) prior to disposal of any long-lived waste. That rulemaking is still
not complete, however. SECY 08-0147 confirms that DU is Class A, and states that it is suitable
for shallow land burial under certain conditions. One of those conditions is to prepare a PA. Other
conditions are site specific, but include analyzing disposal in arid environments and adequate
burial depth. In 2009, the NRC affirmed that it would not, at that time, propose to reclassify DU
stating that "[e]ventual changes to waste classification designations in the regulations must be
analyzed in light of the total amount of depleted uranium being disposed of at any given site."
Annette L. Vietti-Cook, NRC, Staff Requirements-SECY-08-0147-Response to Commission order
CLI-05-20 Regarding Depleted Uranium (Mar. 18, 2009),
https://www.nrc.gov/docs/ML0907/ML090770988.pdf. To this day, the NRC has not undertaken
to reclassify DU based on quantity and, instead, has supported rulemaking to require site-specific
performance analyses for large quantities of DU to address whether sites, like the Clive Facility,
are capable of safely meeting federal and state requirements for disposal.
As early as 1998, EnergySolutions' Clive Facility was licensed to receive (and has disposed
of 49,000 tons) of DU as a Class A waste. Despite DU being Class A and EnergySolutions
possessing a license to dispose of DU, in 2009 the Utah Waste Management and Radiation Control
Board (the "Board") passed Utah's R313-25-9(5) prohibiting the disposal of significant quantities
of DU prior to approval of a site-specific performance assessment. Prior to promulgating R313-
25-9(5), the Board also voted to include Condition 35 to EnergySolutions' existing Radioactive
Material License UT 2300249 ("License). Condition 35 also requires a PA be prepared, reviewed,
and approved before the continued disposal of large quantities of DU. When these Board actions
were taken, EnergySolutions had (and continues to have) a valid exemption from the land
ownership requirement. Neither the Board nor the NRC raised concerns at any point in the license
amendment or rulemaking process about the basis for the land owner exemption that would lead
to a review of the EnergySolutions' (originally issued to Envirocare) land owner exemption for
Class A wastes.
Both state and federal regulations provide for an exemption from the land ownership
requirement if it is determined that the exemption is "authorized by law and will not result in undue
hazard to public health and safety or the environment." R313-12-55(1); see 10 C.F.R. § 61.6. On
March 8, 1991, the Board granted Envirocare (now EnergySolutions) an exemption from the R313-
25-29(1) requirement that waste disposal occur only on land owned by the federal or state
government for Class A waste (including disposal of DU). The NRC commissioners unanimously
approved the Board's granting of an exemption, determining that the exemption "was acceptable
given the controls put in place by Utah and provided additional restrictive covenants were put in
place." COMSECY-01-0001; see SECY-93-136. An exemption had previously been granted by
the Utah Radiation Technical Advisory Committee (a predecessor to the Board) when it exercised
its authority and granted Envirocare (now EnergySolutions) an exemption for NORM and NARM
on November 18, 1987.
The basis for the Board's 1991 exemption was that the state and Envirocare had agreed to
put in place enforceable measures assuring long term institutional controls over the site, including
a restrictive covenant on future activities that was added to the land record. Additionally there was
a requirement that Envirocare establish a trust account under the control of the state. Such
Scott T. Anderson
April 2, 2018
Page 4
measures are equivalent to government ownership for periods longer than private ownership, are
authorized by law and, in fact, meet the institutional control requirements of R313-25-29(2). In
addition, the measures do not result in undue hazard or financial risk to public health and safety or
the environment.
The institutional control measures which are the basis for Envirocare's original exemption
include:
• A Trust Agreement which establishes a surety to assure sufficient funds for closure,
post-closure, and active institutional control period activities at the site.
• A LLRW license that contains the following conditions:
o A restriction on the amount of LLRW that can be received at the site to an
amount that can be managed using the funds under the Trust Agreement; and
o A requirement for "as built" drawings every six months that comprise detailed
contemporaneous records of construction, location and segregation of wastes.
• A mixed waste permit that requires an affidavit referring to and incorporating post
closure land use restrictions required by hazardous waste disposal rules to be recorded
in the public records of Tooele County.
• A Restrictive Covenant executed by Envirocare and the Utah Department of
Environmental Quality ("DEQ") on June 29, 1993, and recorded in the office of the
Tooele County Recorder on June 30, 1993, which runs with the land in perpetuity and
contains the following conditions:
o There will be no excavation or construction after closure except as necessary to
maintain the site;
o There will be no use of the site which would impair the integrity of the closed
disposal areas;
o There will be no change in the use of the site without the prior written consent
of DEQ;
o DOE-approved monuments and markers will be erected and continuously
maintained by Envirocare as long as it holds title to the property, warning of
the presence of radioactive material at the site;
o No portion of the site will be conveyed without the prior written consent of
DEQ;
o The Restrictive Covenant may be enforced by any state or federal agency in
state court; and
o Neither Envirocare, nor its successors or assigns, may institute legal
proceedings to remove or amend the Restrictive Covenant without the prior
written approval of DEQ.
• Zoning the Clive Site within the Hazardous Industries (MG-H) zoning district
established by Tooele County.
• Siting criteria in R313-25-3 that require an LLRW facility to be situated well away
from potable water, active seismic faults, human occupation, etc.
In an undated letter in response to DEQ's February 12, 1993 and March 17, 1993 letters,
the NRC stated that it considered "the State of Utah's rationale of exercising effective control of
Scott T. Anderson
April 2, 2018
Page 5
the waste disposal site without State or Federal land ownership to be acceptable and to provide
equivalent control to that which would be provided by implementing State or federal land
ownership" (see attached). Again, the Clive Facility was accepting DU from DOE for disposal at
the time.
The landowner exemption was further confirmed in 1992 when US Ecology, Inc. petitioned
the NRC for "Review and Suspension or Revocation of Utah's Agreement State Program for
Failure to Require State or Federal Site Ownership at the Envirocare of Utah, Inc. Low-Level
Radioactive Waste Facility." The NRC denied the petition in 1995 and stated the following:
[I]t cannot be said that the Utah regulatory program for the
Envirocare site, including the control periods, surety provision,
restrictive covenant, and Utah remedial action powers fails to
provide adequate protection of the public health and safety.
Moreover, the NRC's governmental site ownership provision is
directed at ensuring control over potential releases over very long
periods of time (in excess of 100 years), and the Utah program,
especially the restrictive covenant and remedial action powers,
should likewise achieve an adequate level of control. NRC Staff
recognizes that, under other circumstances, a state's ownership of a
site as contrasted with private land ownership of the site might, in
theory, carry with it some greater legal or "moral" obligation by the
State to take affirmative action to ensure safety. However, given the
nearby presence of the RCRA facility, the proximity of two other
radioactive waste disposal facilities under federal land ownership
requirements, and the remoteness of the site, the Commission does
not believe private site ownership poses a sufficient real safety issue
to warrant revocation or suspension of the Utah regulatory program.
41 NRC 43, 53 (1995) (emphasis added).
The landowner exemption granted by the Board, and confirmed by the NRC to Envirocare
(now EnergySolutions), is an administrative action that cannot be revoked or suspended without
adhering to appropriate rulemaking procedures. The Administrative Procedures Act ("APA")
defines a "license" as "an agency permit, certificate, approval, . . . statutory exemption or other
form of permission," and the grant or denial of a license is an "agency action." 5 U.S.0 § 551(8),
(13) (emphasis added). The APA provides that "no withdrawal, suspension, revocation, or
annulment of any license shall be lawful" without following the rulemaking procedures, providing
notice to the licensee, and affording the licensee the opportunity to demonstrate or achieve
compliance. Id. at §§ 553, 558(c). Energysolutions' landowner exemption, therefore, remains
effective for Class A wastes, and it cannot be revoked or altered to include limitations based on
the quantity of DU unless the Board partakes in the appropriate rulemaking.
Moreover, arbitrarily altering EnergySolutions' exemption will have the effect of limiting
its ability to compete in the Class A waste disposal market. EnergySolutions has properly received
Scott T. Anderson
April 2, 2018
Page 6
an exemption from the land ownership requirement from the State of Utah and the NRC, and has
been disposing of Class A waste, including DU, pursuant to these authorizations for decades. If
the Division takes the position that an enforceable written Agreement is a requirement under the
PA, it will deprive EnergySolutions of an economically viable use of its land without proper
administrative procedure and arguably will effect a taking of its property. See Lucas v. S.C.
Coastal Council, 505 U.S. 1003, 1029-30 (finding a regulatory taking when a regulation
"proscribe[d] a productive use that was previously permissible").
III. Utah Administrative Code R313-25-9(5) is More Stringent Than Corresponding Federal
Regulations and Does Not Require Revisiting the Landowner Exemption
The Agreement is not a legal requirement for the disposal of DU at the Clive Facility, as
DU remains Class A waste. Additionally, EnergySolutions continues to have a valid land
ownership exemption granted by the Board and confirmed by the NRC, and neither Condition 35
nor R313-25-9(5) revoke the existing exemption or place further requirements for analysis of land
ownership upon EnergySolutions.
In your letter, you argue that the same policy considerations that led to promulgation of
R313-25-9(5) also apply to the question of land ownership. First, EnergySolutions has questioned
the legality of R313-25-9(5) on several occasions, and second, the rulemaking history of R313-
25-9(5) does not support the premise that the same policy considerations inherent in R313-25-9(5)
also apply to land ownership. In development of the rule, the Board appointed a subcommittee
that met multiple times to discuss the scope of the rulemaking. These discussions did not include
any analysis or recommendation regarding whether the applicability of the land ownership
exemption should be revisited based on DU quantity. See Utah Radiation Control Bd., Statement
of Basis for Administrative Rulemaking Regarding Disposal of Significant Quantities of Depleted
Uranium (Dec. 1, 2009). Had the Board been concerned with the quantity of DU and considered
it to be an issue in regards to the land ownership exemption, it would have addressed and
articulated as much in the rulemaking or in Condition 35.
As it stands, R313-25-9(5) is already more stringent than the federal rule by establishing a
compliance timeframe for purposes of the performance assessment when no such timeframe exists
in the federal regulations. The NRC has proposed to revise 10 C.F.R. § 61.13, the corresponding
federal rule, however, upon issuance of the final rule, R313-25-9(5) will continue to be more
stringent than the federal regulations in violation of Utah Code. Utah Code prohibits any state rule
from being more stringent than the corresponding federal regulations, providing that "the board
may not adopt rules, for the purpose of the state assuming responsibilities from the United States
Nuclear Regulatory Commission with respect to regulation of sources of ionizing radiation, that
are more stringent than the corresponding federal regulations which address the same
circumstances." Utah Code § 19-3-104(7)(a).
R313-25-9(5) requires a facility to conduct a modeling analysis for a performance
assessment for a minimum of 10,000 years and to apply those results quantitatively. R313-25-
9(5)(a). The proposed NRC rule, however, requires a compliance period of only 1,000 years, 82
Fed. Reg. 48283, 48284 (Oct. 17, 2017), and does not require a quantitative defense-in-depth
Scott T. Anderson
April 2, 2018
Page 7
analysis. SECY-15-0106, at 6. Once the proposed NRC rule is finalized, R313-25-9(5) will
continue to be more stringent than the federal regulation in violation of Utah Code § 19-3-
104(7)(a).
As discussed, R313-25-9(5) is already—and will continue to be—more stringent than the
corresponding federal rule, and yet the Division is now attempting to inject additional
requirements into a rule where no such requirements exist. It is disconcerting that Safety
Evaluation Report for the Clive Facility DU Performance Assessment Model has incorporated the
"requirement" in Section 6.2.1 that EnergySolutions provide a written Agreement between DOE
and EnergySolutions. The DU Performance Assessment is authorized by R313-25-9(5), and there
is no requirement in this rule regarding landownership. It seems that the Division has
inappropriately boot-strapped the desire for an Agreement between the parties into a requirement
for the technical analysis. This is contrary to the spirit of the original discussions and is not
supported by regulation.
In conclusion, all parties have spent a considerable amount of time and energy working
towards an Agreement that would address the State's goal of having DOE take long-term
ownership of the disposal cells within the Clive Facility. The State should not now require the
Agreement be part of the approval of the DUPA. To do so would require DOE to take an action
that is not legally feasible. EnergySolutions completely supports and remains committed to
finalizing an Agreement, as originally discussed, to provide assurances to the State regarding long-
term stewardship of the Clive Facility.
Regards,
Amanda Smith
Of Counsel
AS :bwt
Enclosures
10812814_1
.
Departrnent of Energy
Washington, DC 20585
February 16, 2010
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FEB 2 2 2010
Div of Waste Management
and Radiation Control
APR 0 2 2018
Mr. Val Christensen
President, Energy Solutions
423 West 300 South, Suite 200
Salt Lake City, Utah 84101
Dear Mr. Christensen:
On January 26, 2010, the Department of Energy (DOE) sent a letter to Waste Control
Specialists (WSC), LLC, confirming a Memorandum of Agreement (M0A) between
DOE and the State of Texas Cominission on Enviromnental Quality (TCEQ) pertaining
to the potential disposal of low-level radioactive waste (LLW) at the proposed site in
Andrews County, Texas. This letter was intended to satisfy requirements of the Texas
Administrative Code (TAC) for possible disposal of LLW that is the responsibility of the
United States under section 3(b)(1)(A) of the Low-Level Radioactive Waste Policy
Amendments Act of 1985 (LLRWPAA), hereinafter referred to as federal facility LLW.
DOE understands that EnergySolutions is concerned about the perception of a
competitive advantage to WCS. The purpose of this letter is to assure you that the
Department is open to discussion of the matter with you.
In its letter to WCS, DOE has agreed that, should it subsequently decide to utilize the site
for disposal of federal facility waste, it will assume all rights, title, and interest in land
and buildings used for disposal of federal facility waste upon the decommissioning of the
site. This agreement is pursuant to Texas requirements, and is also a mandatory
condition of WCS's license by the Texas Commission on Environmental Quality for
disposal.
That contingent agreement is not a decision by the Department regarding the disposal of
federal facility waste at the WCS site in question, does not represent any binding legal
commitment from DOE, and does not preclude DOE from considering similar
arrangements with other commercial entities utilized by DOE as appropriate. It is an
agreement' necessary for compliance with Texas state law, the satisfaction of which is
itself a prerequisite for official consideration of the site for disposal by the Department.
That decision, if made, would be made through the Department's procurement process,
and thus subject to various federal requirements.
Although there are significant differences between the WCS facility in Texas and the
EnergySolutions facility in Clive, Utah, DOE is nevertheless prepared to discuss entering
into a comparable arrangement with Energysolutions.
Printed with soy Ink on recycled paper
lf you wish to pursue such discussions or have any questions, please contact me or Mr. Frank Marcinowski, Deputy Assistant Secretary for Technical and Regulatory
Support, at [phone].
Sincerely,
2
Tria
Assistant Secretary for Environmental Management
STATE OF UTAH
GARY R. HERBERT OFFICE OF THE GOVERNOR GREG BELL
GOVERNOR SALT LAKE CITY, UTAH EUTENANT GOVERNOR
134114-Z220
March 19, 2010
fnes Triay
Assistant Secretary for Environmental Management
United States Department of Energy
1000 Independence Ave., SW
Washington, D.C. 20585
Dear Dr. Triay,
I appreciate the opportunity I had to meet with you to discuss the disposition of
depleted uranium in the State of Utah. I want to thank you for your professionalism and
that of your staff during that very productive conversation.
Before I describe the terms of the agreement we reached, I thought it might be
helpful to briefly review the history leading to our meeting. Our discussion was
prompted by the DOE's decision to ship depleted uranium from the Savannah River
clean-up site by train to Clive, Utah. DOE sent the first trainload of depleted uranium on
or about December 14, 2009.
When I learned of that shipment, you and I spoke on the telephone and I voiced a
number of concems centered around the fact that the Utah Radiation Control Board (the
"Board") was in the midst of two separate processes to address the health and safety
concerns surrounding the disposal of' depleted uranium.
First, the Board, at that time, was considering a license amendment for the Clive
facility to address the potential need to remove and remediate any stored depleted
uranium. That amendment also addressed the provision of a surety to fund the costs
associated with removal and remediation.
Second, the Board was in the process of a rulernaking that would, if adopted,
require a performance assessment before the facility could accept any additional depleted
uranium. The Board's rulemaking was prompted, in part, by questions and issues raised
by the public and by the U.S. Nuclear Regulatory Commission ("NRC"). In light of these
concerns, the Board felt it imperative to fully investigate whether and how depleted
uranium might be stored safely at the Clive facility prior to accepting such material.
It is against this backdrop that we met in Washington D,C, Again, I sincerely
appreciate our candid conversation and the opportunity to mutually agree on a pathway
forward. The following is intended to commemorate the terms of the agreement we
reached at that February 22, 2010, meeting as per notes written down by my Chief of
Staff, Jason Perry regarding the storage and disposal of depleted uranium at the Clive,
Utah, facility. For ease of reference, the three planned shipments from the Savannah
River site will be referred to as trains one, two, and three, respectively:
1. Train one will remain temporarily stored at the Clive facility. The long-
term disposition of train one will be addressed in a site specific
performance assessment that is currently underway in Utah, If it is
determined that the material cannot be safely stored in Utah, the DOE will
remove it immediately at its own expense. Both parties understand that
this assessment may take up to two years or longer to complete based on
the complexity of the issues.
2. The State of Utah will increase its testing of the contents of train one while
it is being held in temporary storage. If this shipment is found to exceed
class A radiation levels, the DOE will immediately remove the entire
contents of train one from Utah at its own expense.
3. Trains two and three of depleted uranium will not be sent to Utah for
storage or disposal but will be redirected to Texas.
4. The DOE will not make subsequent shipments of any other depleted
uranium to Utah until the State concludes its rulemaking process and the
site-specific performance assessment is completed.
5. If either the NRC or the Board rulemaking reveals that depleted uranium
cannot be safely stored and/or disposed of at the Clive facility, the DOE
will not ship any depleted uranium to that site.
6, Dr. Triay or a DOE representative will come to Utah to speak to the Utah
Radiation Control Board. I would like to officially invite you to attend the
meeting scheduled for May 11, 2010,
Thank you again for your careful attention to this matter. We look forward to
working with the DOE to assess whether depleted uranium can be stored safely at the
Clive facility, and, if so, what conditions will ensure the long-term protection for our
citizens and the environment. Given the importance of this matter to the citizens of Utah,
I ask that you countersign and return this letter to me to memorialize our ageement.
Please do not hesitate to contact my office to further discuss this letter.
Sincerely,
Gary R. erhert
Governor
Ines Triay
Assistant Secretary for Environmental Management
United States Department of Energy
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Department of Energy
Washington, DC 20585
April 22, 2010
The Honorable Gary Herbert
Governor of 'Utah
Utah State Capitol
Salt Lake City, Utah 84114
Dear Governor Herbert:
Thank you for your letter dated March 19, 2010, in regards to our February 22, 2010,
meeting concerning the Department of Energy's (DOE's) shipments of depleted uranium
oxide (DUO) from the Savannah River Site (SRS). The opportunity for us to discuss this
matter and find common ground on the path forward is appreciated. This letter is being
written to confirm or clarify our views on the items you listed in your letter as follows:
DUO Shipments Already Sent (Items 1 and 2)
We were very pleased to learn on April 5, 2010, that the independent sampling of the
Decembei 15, 2009, shipment confirmed that the drums were appropriately classified and
manifested by DOE as Class A low level waste, and that the shipment was fully
compliant with EnergySolutions' disposal license. Therefore, at this time, DOE does not
need to take action to remove the drums from the Clive facility. As we discussed, the
drums from the first shipment will not be permanently disposed at the Clive facility
unless and until the on-going performance assessment is completed and demonstrates that
DUO may safely be disposed at the Clive facility. Although DOE is confident the
ongoing review will confirm the safety of DUO disposal in near surface facilities, DOE
agrees that it will remove the drums from the Clive facility, if the performance
assessment reaches a different conclusion.
Subsequent Shipments of DUO (Items 3 and 4)
DOE will not ship the remaining DUO drums currently stored at SRS to the Clive facility
unless the on-going performance assessment is completed and demonstrates that DUO
may safely be disposed at the Clive facility. As there are no alternative disposal sites
currently available, DOE is evaluating alternatives for interim storage of the remaining
DUO inventory, but has not yet made a decision in this regard.
Printed with soy ink on recycled paper
2
Nuclear Regulatory Commission (NRC) or Utah Radiation Control Board Determination
(Item 5)
The Clive facility plays an important role in DOE's continued and cost-effective progress
to clean up the nation's Cold War legacy. We truly value the role the State of Utah
continues to play in these efforts. Any waste shipments that DOE makes to the Clive
facility will be fully compliant with all applicable regulatory requirements and
determinations of the NRC or the Utah Radiation Control Board. Accordingly, DOE will
comply with the recently approved Utah rule, R-313-25-8, that prohibits disposal of
significant quantities of depleted uranium prior to approval of a site-specific performance
assessment indicating such wastes can safely be disposed.
Meeting with Utah Radiation Control Board (Item 6)
We are also happy to accept your invitation to peak with the Utah Radiation Control
Board. Mr. Frank Marcinowski, Environmental Management's (EM's) Acting Chief
Technical Officer, has been asked to represent our program and to discuss DOE's plans
relative to,the ongoing regulatory reviews.
Finally, as we discussed in our February meeting, DOE formally offered to begin
discussions with EnergySolutions regarding development of a written agreement that
would clarify DOE's long-term stewardship responsibilities for some portion of the Clive
facility. EnergySolutions has accepted this offer to begin discussions, although detailed
discussions have not yet commenced. We are committed to keep your office and the
Utah Department of Environmental Quality fully informed as these discussions proceed.
We appreciate the opportunity to exchange these letters, which we believe should be
sufficient to document our mutual understandings on the path forward. Thank you for
your continued interest and support of the EM program. We look forward to continuing
to work cooperatively with you on these matters.
If you need additional information, please contact me, or Mr. Frank Marcinowski at (202)
586-0370, or Ms. Sky Gallegos, Deputy Assistant Secretary for Intergovernmental and
External Affairs, at [phone].
Sincerely,
lnés R. Triay
Assistant Secretary for
Environmental Management