DOT Reply to NRC Request for Clarification on Ex Post Facto Declarations by Shippers of Radioactive Materials
See the memorandum from J. G. Partlow to T. T. Martin (and others) dated January 11, 1984. This memo provides DOT clarification on ex post facto declarations by shippers of radioactive materials. It is inappropriate for a shipper to declare, after the act of shipment, that alternative packaging or shipping requirements could have been applied in lieu of those actually applied.
A licensee had shipped "exclusive-use packaged" low specific activity (LSA) wastes in steel drums under the provisions of 49 CFR 173.392 (b) and (c). During an inspection of the incoming drums at a commercial burial site, twenty-one were found to be punctured. This was considered to be a violation of 173.392 (c) (1), and the licensee was subsequently cited.
In response to the citation, the licensee stated that the shipment could have been transported unpackaged because the content of the shipment was a LSA radioactive material, was transported in a closed sole-use transport vehicle, and otherwise met the criteria stipulated in 173.392 (d) (1) (iii). (This paragraph provides that materials of low radioactive concentration may be transported unpackaged.)
The licensee asked DOT for an interpretation of the provisions of 49 CFR 173.392 (d) as they applied to their shipment. DOT replied that any packaging of choice may be used provided there is compliance with all requirements of 173.392 (d). On the basis of DOT's interpretation, NRC withdrew the violation against the licensee.
NRC sent a letter to DOT concerning the above situation on February 23, 1983. Specifically, NRC asked whether a licensee was allowed to recategorize LSA material, even though there existed a pervasive weight of evidence that it had originally been considered to be and was described in the shipping papers as "packaged", rather than "unpackaged" bulk.
DOT responded on September 29, 1983, and stated that it is inappropriate for a shipper to declare after the act of shipment that alternative packaging or shipping requirements could have applied in lieu of those actually applied. While the shipper may "package" a bulk shipment for convenience, this option does not allow the shipper to improperly prepare a packaged shipment and declare it as bulk after shipment improprieties have been discovered.
Specific actions must be taken prior to making a bulk shipment to ensure "no leakage of radioactive material from the vehicle" [49 CFR 173.425 (c) (6)]. A shipment of packages that leak or release its contents onto a typical wooden trailer floor could not be construed as meeting requirements unless actions had been taken to ensure the leak-tightness of the floor. If such action had not been taken, then the "packages" themselves must remain leak-tight in order to meet 49 CFR 173.425 (c).
Regulatory references: 10 CFR 71, 49 CFR 173
Subject codes: 12.13, 12.17