U.S. Army Installation Management Command; Notice of Issuance of Director's Decision, 69293-69294 [2011-28889]

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• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 76, Number 216 (Tuesday, November 8, 2011)]
[Notices]
[Pages 69293-69294]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-28889]


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NUCLEAR REGULATORY COMMISSION

[NRC-2009-0352; Docket No. 40-09083]


U.S. Army Installation Management Command; Notice of Issuance of 
Director's Decision

    Notice is hereby given that the Director, Office of Federal and 
State Materials and Environmental Management Programs (FSME) has issued 
a Director's Decision with regard to a Petition, dated March 4, 2010, 
filed by Mr. Issac Harp, herein after referred to as the 
``Petitioner,'' pursuant to Title 10 of the Code of Federal Regulations 
(10 CFR) 2.206. The Petition was supplemented on April 14, 2010. The 
Petition concerns the possession, by the U.S. Army, of depleted uranium 
(DU), a source material, in spent spotting rounds from the Davy 
Crockett Weapon System without a valid U.S. Nuclear Regulatory 
Commission (NRC) license.
    The Petition requested that the NRC take enforcement action against 
the U.S. Army by initiating an investigation into the potential 
violation of NRC License SUB-459, and if it was determined that a 
violation occurred, to apply the full penalty permissible by law. The 
Petition

[[Page 69294]]

also requested that any monetary fines be used for remediation of the 
Schofield Barracks and Pohakuloa Training Areas in Hawaii. The basis 
for the request was that the U.S. Army's license, SUB-459, expired on 
October 31, 1964, and that any DU possessed by the U.S. Army or 
released into the environment after the expiration date was an unlawful 
act, subject to NRC enforcement policies.
    The Petition raised a concern about the possession of licensable 
quantities of DU by the U.S. Army without an NRC license to do so. 
Section 40.3 states, in part, that persons may not receive title to, 
own, receive, possess, use, transfer, or dispose of source material 
unless authorized in a specific or general license issued by the 
Commission. Contrary to 10 CFR 40.3, the U.S. Army is in possession of 
DU, a source material, in the form of spent spotting rounds (expended 
prior to 1968) at firing ranges located at Schofield Barracks and 
Pohakuloa Training Area, in Hawaii and on other U.S. Army 
installations, in excess of the exempt and general use limits, without 
authorization in a specific or general license issued by the NRC.
    The Petitioner met with the FSME Petition Review Board by 
teleconference on April 14, 2010, to discuss the Petition. The meeting 
gave the Petitioner an opportunity to provide additional information 
and to clarify issues raised in the Petition. The transcript of this 
meeting was treated as a supplement to the Petition and is available in 
the Agencywide Document Access and Management System (ADAMS) for 
inspection at the NRC's Public Document Room, O1-F21, One White Flint 
North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. 
Publicly available documents created or receive at the NRC are 
available online in the NRC Library at https://www.nrc.gov/reading-rm/adams.html.
    The NRC issued a proposed Director's Decision (DD-11-05) dated 
August 8, 2011, which granted the Petition, in part, and denied the 
Petition, in part. The NRC sent a copy of the proposed Director's 
Decision to the Petitioner and to the U.S. Army for comment on August 
8, 2011. The Petitioner responded on August 21, 2011. The U.S. Army did 
not provide comments on the proposed Director's Decision. The 
Petitioner's comments and the NRC staff's responses are included in the 
Director's Decision.
    The Director of the Office of Federal and State Materials and 
Environmental Management Programs has determined that the activities 
requested by the Petitioner have been granted in part and denied in 
part. The reasons for this decision are explained in the Director's 
Decision pursuant to 10 CFR 2.206 [DD-11-05], the complete text of 
which is available in ADAMS for inspection at the NRC's Public Document 
Room, O1-F21, One White Flint North, 11555 Rockville Pike (first 
floor), Rockville, Maryland 20852. Publicly available documents created 
or receive at the NRC are available online in the NRC Library at https://www.nrc.gov/reading-rm/adams.html.
    The Petition requested that the NRC investigate whether, contrary 
to applicable law and regulations, the U.S. Army possessed or released 
into the environment DU from spent spotting rounds after the expiration 
of NRC License SUB-459. NRC conducted an investigation of the U.S. 
Army's possession of licensable quantities of DU and issued a Severity 
Level III Notice of Violation to the U.S. Army (ML111680087). 
Consistent with NRC Enforcement Policy (www.nrc.gov/about-nrc/regulatory/enforcement/enfore-pol.html) the NRC chose not to impose any 
civil penalty because: (1) The U.S. Army installations in Hawaii have 
not been previously the subject of escalated enforcement action; (2) 
the U.S. Army identified and notified the NRC of the presence of 
radioactive material; and (3) the U.S. Army implemented corrective 
actions in response to the discovery of the presence of the depleted 
uranium. Therefore, insofar as the NRC has undertaken certain 
activities requested by the Petitioner, that being the initiation of an 
investigation to determine whether the U.S. Army possesses DU in 
licensable quantities without authorization from the NRC to do so and 
the issuance of an enforcement action based on that investigation, the 
NRC granted that portion of the Petition concerned with such 
activities.
    In addition, the Petition requested that, if the NRC determined 
that a violation occurred, to assess against the U.S. Army the maximum 
penalty permitted by law, and asked that any assessed monetary fines be 
applied to the environmental remediation of DU contamination at the 
Schofield Barracks and Pohakuloa Training Area installations in Hawaii, 
if the law provides for such action. Were the NRC to have chosen to 
impose a civil penalty, the law does not provide for the application of 
that assessed civil penalty to the environmental remediation of DU 
contamination as requested by the Petitioner. Fines assessed for 
violations of NRC requirements are sent to the U.S. Treasury. 
Therefore, this portion of the Petition was denied.
    As provided in 10 CFR 2.206(c), a copy of this Director's Decision 
will be filed with the Secretary of the Commission for the Commission 
to review. As provided for by this regulation, the Decision will 
constitute the final action of the Commission 25 days after the date of 
the Decision, unless the Commission, on its own motion, institutes a 
review of the Decision within that time.

    Dated at Rockville, Maryland, this 29th day of October 2011.

    For the Nuclear Regulatory Commission.
Cynthia A. Carpenter,
Deputy Director, Office of Federal and State Materialsand Environmental 
Management Programs.
[FR Doc. 2011-28889 Filed 11-7-11; 8:45 am]
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