Disposal of Exempt Quantities of Byproduct Material
See the memorandum from L. J. Cunningham to M. M. Shanbaky (and others) dated February 12, 1987, and the memorandum from R. L. Fonner to J. C. Partlow dated January 30, 1987.
Sections 20.301, 30.14, 30.18, and 40.13 (a) of CFR Title 10 do not authorize waste disposal by transfer of exempt quantities of byproduct and/or source materials to persons who do not hold a specific NRC license authorizing them to receive it. The health physics position was written in the context of 10 CFR 20.301, but it also applies to "new" 10 CFR 20.2001.
In your memorandum of January 7, 1987, you ask if OGC had any legal objection to OIE continuing to view 10 CFR 30.18 as not authorizing disposal of exempt quantities of byproduct materials. Your question was prompted by an internal OELD memorandum that noted an ambiguity in 10 CFR 30.18 that should be corrected in order to present a rock solid basis on which to take issue with a licensee's reliance on that provision to justify disposal of small amounts of radioactive wastes.
The issue in this office was precipitated by a memorandum from the Region II for a legal reading of the regulation in question. Material submitted with your memorandum of January 7, also demonstrates the confusion surrounding the citation of 10 CFR 30.18 and the need to clarify the application of the regulation to disposal of exempt quantities of materials. You agree with the need for clarification but propose in essence that the agency proceed with enforcement prior to such clarification on the view that 10 CFR 30.18 does not authorize disposal or transfer for disposal of the exempt quantities.
There is no objection to adhering to that view. A case can be made for it based upon a long term agency understanding that 10 CFR 30.18 does not authorize disposal or transfer for disposal (see, for example, the note from Eric Jakel to Leo Wade dated June 10, 1975). Because there is some confusion in the record, however, it is not risk free.
Therefore, we continue to urge prompt initiation of a clarifying rule.
Regulatory references: 10 CFR 20.301, 10 CFR 20.2001, 10 CFR 30.14, 10 CFR 30.18, 10 CFR 40.13
Subject codes: 3.5, 9.7, 12.10