1988-02-17 – NRC – General Counsel recommendations of legal resources available to properly dispose of West Lake Landfill wastes


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1 ” 1983
MEMORANDUM FOR: Richard E. Cunningham, Director
Division of Industrial and Medical Nuclear Safety
Office of Nuclear Material Safety & Safeguards
FROM: Stuart A. Treby, Assistant General Counsel for
Rulemaking £ Fuel Cycle,
Office of the General Counsel
In your memorandum of January 29, 1988 you requested advice as to the
legal resources avai.lable to the NRC to require a. former licensee, the Cotter
Corporation, to properly dispose of radioactive wastes dumped In the West
Lake landfill on the outskirts of St. Louis, Missouri.
The background information accompanying your memorandum shows that the
radioactive material, seven tons of uranium, was contained in some 8700 tons
of barium sulfate mixed with about 39,000 tons of soil. It was moved to the
landfill between July and October 1973 from the Latty Avenue site which had
been used by the licensee to dewater uranium processing residuals purchased
from the AEC prior to shipment to the licensee’s uranium processing mill at
Canon City, Colorado, for further processing. The operations at Latty
Avenue were carried out under a source material license, SUB-1022, which
was subsequently terminated. It is also abundantly clear that the AEC was
fully aware in 1974 of the admixture of the barium sulfate with soil and its
transfer to the landfill. See letter of November 1, 1974 from John G. Davis,
Deputy Director for Field Operations, Directorate of Regulatory Operations,
to Cotter Corporation.
Mr. Davis1 letter noted that, “The disposal does not appear to be within the
intent of the Commission’s regulations, 10 CFR Part 40, to allow alteration of
the physical nature of Source Material (i.e., dilution of solids with
nonradioactive source material) in order to obtain a physical mixture which
would no longer be subjected to licensing by the Commission.” An inspection
report, No. 040-8035/74-01, transmitted on May 17, 1974 identified the same
transfer of material to the landfill as a disposal contrary to the requirements
of 10 CFR 20.301. There does not appear to have been any follow up
enforcement action by either the AEC or the NRC to these two apparent
violations of regulations.
It is a foregone conclusion that the usual enforcement procedures of the
NRC, that is, a notice of violation or order to show cause leading eventually
to a civil penalty, would be of no avail in this case. In Secy-85-285 the
General Counsel and the Executive Director of Operations (for the Executive
Legal Director) provided a legal analysis of the application of 28 U. S. C.
2462, a federal statute of limitations, to enforcement action of the NRC. The
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conclusions of that legal analysis, when applied to the facts of this case,
clearly Indicate that any administrative enforcement action that could or
would result in a civil fine, penalty or forfeiture, is barred by the five year
limitation on actions In that statute. The five year period commences to run
from the time of the violation. In this case that is October 1973, at the
latest. Accordingly, normal enforcement action by the NRC leading to civil
penalty would have been barred after the end of October 1978.
The only effective resource available to NRC at this point in time would be
judicial action under Section 232 of the Atomic Energy Act of 1954, as
amended. Section 232 authorizes the NRC, through the Attorney General, to
seek injunctive relief with respect to violations of regulations or orders.
This would, of course, draw into question whether an order to clean up the
landfill (if that action were to be selected to establish a basis for injunctive
relief) was lawful, as well as if the other necessary bases for injunctive
relief were met, for example, that no other remedy was available, and that
the health and safety hazard warranted judicial intervention. The question
of the lawfulness of the order would likely turn upon the question of
whether there was indeed a violation of regulations in sending the material to
the landfill. Whether there was a violation of 10 CFR 20.301, as stated In
the inspection report, depends upon how 10 CFR 40.13(a) is construed. We
note that there is nothing in that section or elsewhere in 10 CFR Part 40
that expressly prohibits dilution of source material in a mixture to below .05
weight percent in order for it to be exempted from the regulations In Part
40. If exempt, the requirement for transfer to an authorized recipient
would not apply. (See attached memorandum from W. Olmstead to J.
Lieberman) Thus, the licensee could argue that the dilution with soil was
legal and that the transfer and subsequent disposal were legal.
Although the doctrine of laches (a doctrine of repose applied in equity
cases, such as injunction proceedings, analogous to a statute of limitations)
does not apply to the United States Government, the fact that 14 years has
elapsed since the AEC/NRC had evidence of the disposal, and had considered
it a possible violation, argues against the need for immediate vigorous
enforcement through a judicial injunction. Added to this is the fact that the
AEC/NRC terminated the license with full knowedge of the disposal. One
could argue that the responsible regulatory agency, in terminating the
license without further enforcement action, haa determined that the alleged
violations were without merit. Finally, the United States has an alternative
The interpretative problems associated with 10 CFR 40.13(a) are
severe. We have not been able to find anything in its rulemaking history to
support a conclusion that it prohibits dilution, or that it is strictly limited to
chemical mixtures, solutions, alloys, or compounds, under a restrictive
definition of chemical. For example, chemical solutions, compounds, mixtures
and alloys could arguably be limited to those produced by or used in a
chemical process. Thus, the barium sulfate plus uranium would be a
chemcial mixture, but separated uranium subsequently admixed with ordinary
soil would not.
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statutory remedy. Uranium is a hazardous substance under CERCLA
(Superfund) and the response authority under Section 104 of that Act could
be invoked.
If the staff determines upon proceeding judicially. Section 161c of the Atomic
Energy Act would authorize the NRC to conduct the necessary studies and
evaluations to support any order to be issued and any subsequent request
for enforcement of the order by judicial injunction. If EPA was to be
requested to proceed under Section 104 of CERCLA then EPA would initiate
the necessary studies and evaluations and supervise the remedial action. We
note that under CERCLA, EPA is not required to litigate responsibility
before proceeding. Under CERCLA, litigation comes after the fact and is
focused upon collection of agency remedial action costs and penalties
from responsible parties.
Stuart A. Treby, Assistant General
Counsel for Rulemaking 6 Fuel
Office of the General Counsel
As stated