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                                 WASHINGTON, D.C. 20460
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                                                                              RESPONSE

                                                                 OSWER No. 9272.0-15P

  MEMORANDUM

  SUBJECT:   Interim Final Evaluation of Facilities Currently or Previously Licensed NRC Sites
               under CERCLA
  FROM:      Timothy Fields, Jr.
               Assistant Administrator

  TO:          Addressees

  PURPOSE

        This memorandum addresses the U. S. Environmental Protection Agency (EPA)
  evaluation of facilities previously or currently licensed by the Nuclear Regulatory Commission
  (NRC). EPA has increasingly received requests to either 1) conduct response actions under the
  Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) at
  previously or currently licensed facilities, or 2) make a determination if a past or proposed NRC
  decommissioning would meet CERCLA cleanup levels.  This memorandum does not address
  EPA's role under other statutory authorities at NRC facilities, such as corrective action
  authorities under the Resource Conservation and Recovery Act (RCRA) for hazardous waste
  practices. The Regional Superfund Office should coordinate with other EPA offices and
  governmental authorities, including states, as appropriate. EPA expects that the vast majority of
  facilities decommissioned under NRC authority will be protective of human health and the
  environment. This memorandum provides guidance to clarify EPA's role under CERCLA at
 previously or currently licensed NRC-facilities to avoid dual regulation.  The procedures in this
 guidance will facilitate the beneficial reuse  of NRC licensed facilities while ensuring the
 selection of cleanups that are protective of human health and the environment.

        This memorandum provides guidance to EPA staff. It also provides guidance to the
 public and the regulated community on how EPA intends that the National Oil and Hazardous
 Substances Pollution Contingency Plan (NCP) should be implemented. The guidance is
 designed to describe EPA's national policy on these issues. The guidance does  not, however,
                               Internet Address (URL) • http://www.spa.gov
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 substitute for EPA's statutes or regulations, nor is it a regulation itself.  Thus, it cannot impose
 legally-binding requirements on EPA, States, or the regulated community, and may not apply to a
 particular situation based upon the circumstances, EPA may change this guidance in the future,
 as appropriate.

 BACKGROUND

        Since September 8, 1983, EPA has generally deferred listing on the National Priorities
 List (NPL) sites that are subject to NRC's licensing authority because NRC's actions are
 generally believed to be consistent with the CERCLA requirement to protect human health and
 the environment.1 However, even with EPA's policy of deferral to NRC, EPA has taken action
 at formerly or currently licensed NRC sites that posed a threat to human health or the
 environment. As EPA indicated in the Federal Register notice announcing the policy of deferral
 to NRC,  if EPA "later 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
 10661).  This remains EPA's position.

        On July 21, 1997, the NRC promulgated a final rale on "Radiological Criteria for License
 Termination" (see 62 FR 39058). The NRC rale sets an allowable cleanup level of 25 millirem
 per year effective dose equivalent (EDE) (equivalent to approximately 5 x 10"4 lifetime cancer
 risk) as the primary standard with exemptions, allowing cleanup levels of up  to 100 millirem per
 year (mrem/yr) EDE (equivalent to approximately 2 x 10"3 lifetime cancer risk).  Also, the NRC
 rule does not include a separate requirement for protecting groundwater that is a current or
 potential  source of drinking water to the Maximum Contaminant Levels (MCLs) established
 under the Safe Drinking Water Act.
                     •"•&
        Prior to promulgation of the NRC rale, EPA's Administrator Carol M. Browner sent a
 letter on February 7,1997, to NRC Chairman Shirley Jackson expressing EPA's concern that the
 NRC rale would allow the cleanup of sites to levels that are not protective of human health and
 the environment.  In this letter, EPA raised the idea of reconsidering EPA's policy of generally
 deferring the listing of NRC sites on the NPL.

        Subsequent to the NRC rale, EPA issued guidance entitled "Establishment of Cleanup
 Levels for CERCLA Sites with Radioactive  Contamination" (OSWER No. 9200.4-18, August
 22,1997).  This 1997 radiation guidance provided clarification for establishing protective
 cleanup levels for radioactive contamination at CERCLA sites. In it, EPA recommended that the
 NRC decommissioning requirements (e.g., 25, 100 mrem/yr EDE dose limits) in the NRC rale
        EPA has the authority to choose not to respond to certain types of releases under CERCLA because
existing regulatory or other authority under other Federal statutes provides for an appropriate response. As a policy
matter, EPA has generally chosen not to list releases of source, byproduct, or special nuclear material that is
currently licensed by NRC, This general deferral policy never applied to facilities where NRC has terminated the
license, or the current license is issued by a State pursuant to a delegation of authority from the NRC pursuant to
section 274 of the Atomic Energy Act (42 U.S.C. 2021).
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 should generally not be used to establish cleanup levels under CERCLA, even when these
 regulations are ARARs. Concurrently, EPA issued guidance entitled "Clarification of the Role
 of Applicable, or Relevant and Appropriate Requirements in Establishing Preliminary
 Remediation Goals under CERCLA" (OSWER No. 9200,4-23, August 22,1997). This 1997
 ARARs policy guidance explained that CERCLA cleanups may be more stringent than an
 ARAR, where application of the ARAR would not be protective of human health or the
 environment.

       Previously, NRC and EPA have transmitted to each other draft Memorandums of
 Understanding (MOUs) concerning how the two agencies might coordinate when NRC planned
 to decommission facilities. A joint MOU has not been finalized. For this reason, this
 memorandum should be used by the Regions as the Agency's guidance for these situations
 instead of either EPA's or NRC's draft MOU. If EPA finalizes an MOU with NRC in the
 future, EPA will revise this memorandum as necessary to reflect the coordination
 procedures agreed  upon by NRC and EPA.

 OBJECTIVE

       This guidance provides general considerations for Regions when evaluating currently or
 previously NRC licensed facilities, either when Regions are considering conducting CERCLA
 response actions (removal, remedial, orNPL listing), or determining if proposed or previous
 NRC decommissionings will be/are protective under CERCLA. EPA expects to use CERCLA
 cleanup levels as the measure for protectiveness in either case. The discussion that follows
 outlines considerations to aid in these discussions.

 IMPLEMENTATION

       The following subsections will clarify the considerations when the Agency evaluates
 NRC facilities to determine either the attainment of CERCLA cleanup levels of NRC's
 decommissioning or the need for EPA response action, either removal or remedial if warranted,
 or listing on the NPL.

 Protectiveness Evaluation of NRC Pecommissionings

       EPA should consider the following factors when conducting a CERCLA protectiveness
 evaluation of an NRC licensed or decommissioned facility that has been requested by a
 stakeholder. The decision as to whether such an evaluation is appropriate will generally be
 determined by the Region in which the facility is located.

       When EPA is conducting an evaluation to determine if NRC's proposed/planned/previous
decommissioning was/is protective under CERCLA, EPA expects to use CERCLA cleanup
levels as the measure of protectiveness.  CERCLA cleanup levels include, but are not limited to,
the risk range (generally W4 to  10'6 cancer risk summed for all contaminants, both radiological'


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 and chemical), hazard index (HI) (generally a HI of less than 1 for noncarcinogens with the same
 toxic endpoint or mechanism of action), compliance with applicable or relevant and appropriate
 requirements (ARARs), and protection of the environment.  This includes attainment of MCLs
 for actual and potential drinking water aquifers throughout the plume.

        Protectiveness determinations include evaluation of responses for contaminants addressed
 under the NRC license and decommissioning as well as contamination not being addressed by
 NRC.  This may include: non-NRC licensed contaminants that NRC is not addressing (e.g.,
 chemicals, technologically enhanced naturally occurring radiological materials2, etc.) or areas
 where NRC is not addressing the contamination (e.g., contamination outside a facility's
 boundary).  In making a determination, the Regional Superfund program should coordinate with
 other EPA offices (e.g., the RCRA office) and government entities, including the states, as
 appropriate, regarding whether the NRC's facility will meet the CERCLA cleanup levels for all
 contaminants.

        While a protectiveness determination can best be made at the completion of the NRC
 decommissioning, EPA should be able to make a preliminary judgement at any time in the
 process where sufficient information is available. In discussions with the public, NRC and NRC
 licensees, EPA should provide a general overview of CERCLA cleanup levels (including the
 need for public involvement) to aid groups in their dialogue.  EPA should then evaluate the site-
 specific information available including the proposed or actual cleanup concentrations and
 consider whether the level being proposed/planned or has been achieved, for all contaminants,
 will meet CERCLA cleanup levels.  During its evaluation, the following information should be
 considered by EPA:

        EPA should evaluate NRC decommissionings based on the NRC licensee's proposed,
        planned, or actual cleanup levels, not the dose limits (25, 100 mrem/yr EDE) in the NRC
        decommissioning rule.  As noted below, the evaluation of NRC's cleanup level needs to
        consider available site-specific information such as land and ground water use, and the
        levels of contaminants not being addressed by NRC,  EPA's evaluation should be
        conducted using the EPA's CERCLA policies [e.g., NCP, Office of Solid Waste and
        Emergency Response (OSWER) directives] regarding what cleanup level is acceptable,
       rather than NRC's policies.

       EPA should not evaluate NRC decommissionings using all of the procedures that EPA
       would use if it were conducting a CERCLA response action.  The NRC decommissioning
       should not be judged using EPA's CERCLA process [e.g., establishing preliminary
       remediation goals (PRGs) at either 1 x 10'6 cancer risk or ARAR levels, then modifying
        Until recently, technologically enhanced naturally occurring radioactive material (TENORM) was
previously referred to in EPA documents simply as naturally occurring radioactive material (NORM)
"Technologically enhanced" was added to distinguish clearly between radionuelides as they occur naturally and
radionuclides that human activity has concentrated or exposed.
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 those PRGs based on the balancing of the nine criteria used for remedy selection (see 55
 FR 8717-8718)]. An NRC decommissioning should be evaluated in terms of whether it
 meets the risk range and attains ARARs.

 EPA should evaluate whether the cleanup will achieve the CERCLA risk level (generally
 no greater than the 10~4 to 10"6 cancer risk range) for reasonably anticipated land uses,
 ARARs, and whether ground waters will be returned to beneficial reuse (as identified by
 the State designation or Federal Criteria for determining groundwater use) throughout the
 plume. For non-carcinogens, a Hazard  Index of less than one should generally be the
 measure of protectiveness.

        For an overview of EPA CERCLA policy regarding the risk range, see guidance
        entitled "Role of the Baseline Risk Assessment in Superfund Remedy Selection
        Decisions" (OSWERNo. 9355.0-30, April 22, 1999).

 Risk assessments, both for radiological  and nonradiological (chemical) carcinogens,
 conducted by EPA to determine if the NRC decommissioning is/will attain CERCLA
 cleanup levels, should be conducted using slope factors, and expressed as a risk number,
 such as # x 10"* for purposes of determining whether the cleanup is within the CERCLA
 risk range. Risk assessments should also be performed on a site-specific basis using EPA
 guidance to the extent possible.

       For an overview of EPA CERCLA risk assessment policy at radioactively
       contaminated sites, see guidance entitled "Radiation Risk Assessment At
       CERCLA Sites: Q & A" (OSWER No. 9200.4-3 IP, December 1999).

       The Region should use CERCLA cleanup levels (generally 10"4 to 10~6 estimated
       with slope factors, and ARARs)  for determining cleanup levels at CERCLA sites.
       Under certain circumstances for  other radiation control programs developed by
       EPA, a level of 15 mrem/yr per year is generally considered protective.  However,
       under CERCLA dose assessments are generally conducted only where necessary
       to demonstrate ARAR compliance (see memorandum from Stephen D. Luftig
       titled "Distribution of OSWER Radiation Risk Assessment Q & A!s Final
       Guidance" December 17,1999, pp. 2-3).

Compliance with standards that EPA would likely consider potential ARARs (especially
MCLs, but also including others such as State laws) should be used in evaluating the
attainment of CERCLA cleanup levels, to the extent those potential ARARs can be
readily identified.  It should be noted that compliance with the dose limits in the NRC
rule should generally not be used to determine if an NRC cleanup attains, or will attain
CERCLA cleanup levels.
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        Information regarding some Federal standards that are likely ARARs for
        radioactively contaminated sites is included in Attachment A of "Establishment of
        Cleanup Levels for CERCLA Sites with Radioactive Contamination" (OSWER
        Directive 9200.4-18 August 22, 1997).

        Guidance regarding the use of  subsurface soil cleanup standards in 40 CFR Part
        192 as ARARs to establish cleanup levels for radium-and thorium-contaminated
        sites is contained in guidance entitled "Use of Soil Cleanup Criteria for 40 CFR
        Part 192 as Remediation Goals for CERCLA Sites" (OSWER Directive 9200.4-25
        February 12, 1998).

        Guidance on making decisions  concerning ground water protection is contained in
        "Presumptive Response Strategy and Ex-Situ Treatment Technologies for
        Contaminated Ground Water at CERCLA Sites" (OSWER Directive 9355.7-04
        October 1996).

 Risk assessment numbers should be provided for both: (1) the land use for which NRC
 released the site, and; (2) the current and reasonably anticipated land use. NRC will
 usually release facilities for unrestricted land use after license termination, although the
 reasonably anticipated land use may be industrial.

 Potential time frame for surface and ground water use and the use of alternative water
 supplies should be used to provide an assessment as to whether the remedy will be
 protective in the near term and whether the ground water resource will be protected for
 future generations.

 When presenting results of EPA's analysis of NRC's proposed/planned decommissioning
 cleanup level, the Region may want to caveat the results by noting that it is likely that the
 cleanup level the NRC licensee achieves may be significantly lower than the
 proposed/planned cleanup level (e.g., the planned level of residual concentrations after
 cleanup versus the actual level of residual concentrations achieved by the cleanup.)

 When presenting results of EPA's analysis of a previous NRC decommissioning, the
 Region may want to also include some discussion of NRC's proposed/planned cleanup
 level.

 When presenting results of EPA's analysis, the Region may want to caveat the results to
the extent the analysis is based on the data provided by NRC, and was conducted using
current EPA guidance and ARARs. The Region may also want to provide some
discussion of NRC's sampling  and site characterization methodology if it raises
significant uncertainty in EPA's assessment.
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 Generally, for sites at which a CERCLA response action is not being conducted, EPA's
 Superfund program generally does not expect to be involved with the specifics of how a cleanup
 action will proceed. However, the NRC licensee, the community, or the State, may find it useful
 to consult EPA policies and practices relating to CERCLA response actions. In this regard, EPA
 may provide suggestions or Agency guidance to help in the cleanup effort.  If the Region is
 suggesting some practice that the NRC licensee should follow that is not either an NCP
 requirement or a Superfund policy, this should be made clear as well as the rationale for making
 this suggestion. For example, the Region may offer suggestions regarding Regional practices
 [e.g., public participation procedures beyond those required in the NCP, or the use of non-
 Superfund guidance such as the Multi-Agency Radiation Survey and Site Investigation Manual
 (MARSSIM)].

 Evaluating Need for CERCLA Response Action

       EPA receives requests to  review a planned or completed cleanup conducted under other
 authorities, including NRC authority, to determine whether it warrants a response action under
 CERCLA removal or remediation authority.  EPA may and does take removal and remediation
 actions at sites where there is an active NRC license. This is appropriate in situations where the
 NRC license does not apply, and may include actions involving contaminants not addressed by
 NRC (e.g., chemicals, technologically enhanced naturally occurring radiological materials,
 contamination outside the facility's boundary, or cases where the licensee is in violation of the
 license).  Response actions under  other EPA authorities (e.g., RCRA) may also be appropriate
 and should be coordinated at the Regional and State level.

       As a matter of general course, we expect that most NRC decommissioning will result in
protective cleanups and that a response under CERCLA authority will not be required.  In those
limited situations where this is not the case, we expect to consider listing on the NPL those sites
potentially warranting remedial response under CERCLA after the completion of the NRC
decommissioning and termination of the license. Evaluations of sites for potential listing on the
NPL should be based on factors identified in the NCP, 40 CFR § 300.425(c), and should
generally consider:

      NRC sites should be considered for listing on the NPL consistent with other sites, since
      the Hazard Ranking System (HRS) clearly states that radioactive substances are
      hazardous substances under CERCLA and should be considered for HRS scoring (see
      final rule for the  HRS final rule, 55 FR 51663 December 14,1990).

             States conduct Preliminary Assessment/Site  Investigation (PA/SI) for listing.

            Listing determination would be subject to prior notice and comment. As is always
            the case, the public may petition EPA to list a site on the NPL, and EPA will
            evaluate those requests.
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 •      Both radiological and chemical contaminants should be analyzed. NRC generally does
       not include chemical contaminants in their assessments and response activities, HRS
       scoring considers both radioactive and chemical contamination.

       EPA may also take removal action at an NRC decommissioned or decommissioning site
 as appropriate. Decisions to take such action should be made in a manner consistent with other
 removal actions. In particular, the site-specific nature of the situation, and the ability of the
 existing authorities to address the situation in a protective and timely manner, should be
 considered.

 Summary

       EPA is committed to ensuring that sites are cleaned up in a manner that protects the
 public and the environment. EPA believes that working together with all the involved
 stakeholders can ensure that this happens. In a limited number of cases EPA may need to address
 contamination at a former or currently NRC licensed facility using CERCLA authority. In the
 vast majority of cases, EPA expects that these sites will be cleaned up adequately using other
 authorities and CERCLA guidance may be useful for those stakeholders involved in decisions to
 help judge the protectiveness of the remedies. While we expect our resources are most
 appropriately directed towards CERCLA response actions (removal or remedial) to  ensure that
 those sites within EPA's jurisdiction are cleaned up to protective levels to facilitate  their return to
 beneficial use, EPA will provide information with regard to CERCLA requirements and guidance
 as needed. EPA believes that this may further limit the need for additional response actions
 under CERCLA authority.

 Coordination Policy

       When considering requests for listing a former or current NRC licensed facility, Regions
 should contact Robert Myers of the Office of Emergency and Remedial Response (OERR).
 When considering requests to evaluate the protectiveness of a previous or proposed NRC
decommissioning, Regions should contact Stuart Walker of OERR. When considering a removal
action at a former or currently NRC licensed facility, Regions should contact Craig Beasley  of
OERR.
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FURTHER INFORMATION

       The subject matter specialists for this directive are Stuart Walker and Robin M. Anderson
of OERR. General questions about this directive should be directed to 1-800-424-9346.
Addressees:
      National Superfund Policy Managers
      Superfund Branch Chiefs (Regions I-X)
      Office of Regional Counsel, Superfund (Regions I-X)
      Radiation Program Managers (Regions I, IV, V, VI, VII, X)
      Radiation Branch Chief (Region II)
      Residential Domain Section Chief (Region III)
      Radiation and Indoor Air Program Branch Chief (Region VIII)
      Radiation and Indoor Office Director (Region IX)
      Federal Facilities Leadership Council
      OERR Center Directors

cc:
      Steve Luftig, OERR
      Steve Page, ORIA
      Jim Woolford, FFRRO
      Elizabeth Cotsworth, OSW
      Craig Hooks, FFEO
      Barry Breen, OSRE
      Joanna Gibson, HOSC/OERR
      Earl Salo, OGC
      Bob Cianciarulo, Region I
      OERR Records Manager, IMC, 5202G, OERR
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