Request for Interpretation of 10 CFR 39.47, "Radioactive Markers"
See the memorandum from J. E. Glenn to R. J. Pate dated January 9, 1992.
This NMSS memo responds to Baker Sand Control's October 29, 1991 request to terminate NRC License No. 50-21402-01. In its request, Baker Sand indicated that it would only use (and supposedly receive) 1-microcurie cobalt-60 markers, and pursuant to 10 CFR 30.18, it would not be required to be licensed. While 30.18 (a) states, in part, that individuals may transfer "exempt" quantities, this provision has been interpreted by NRC legal staff (Enclosure 1) as meaning an occasional or infrequent transfer on a noncommercial basis. For example, this provision allows laboratories to occasionally transfer radioactive tissue samples, tagged compounds, counting standards, etc. Often the radioactive properties of the items are only incidental to the transfer of the materials. HPPOS-131 and HPPOS-189 contain related topics.
10 CFR 30.18 (a) also states that a person is exempt from the requirements for a license, except as provided in paragraphs (c) and (d) of that section. Paragraph 30.18 (c) indicates that the section does not authorize transfer of byproduct material for commercial distribution, and paragraph 30.18 (d) indicates that no person may, for purposes of commercial distribution, transfer byproduct material except in accordance with a license pursuant to 10 CFR 32.18. It is NRC legal staff's opinion (Enclosure 1, last paragraph) that "commercial distribution" does not necessarily mean that money must change hands, instead it implies a transfer into the market or to the general public resulting in a benefit for the distributor. [Editor's Note: Enclosure 1 is included in this report as HPPOS-203.]
It is NMSS opinion that Baker Sand would clearly be transferring the markers for a commercial benefit. Therefore, transfer of collar markers by Baker Sand is not authorized under the exemption in 10 CFR 30.18. Baker Sand does have the option to obtain an NRC distribution license under 10 CFR Part 32. However, the products must meet the labelling, packaging, and product brochure requirements of 32.18, and Baker Sand must have a possession license for each place of storage.
Generally speaking, only under a specific license issued pursuant to 10 CFR Part 39 is a person authorized to use (attach to pipe collars) and leave unlabeled radioactive markers in wells. In developing Part 39, it was understood that radioactive markers are used and left is well by licensees. It was also understood that there is a possibility the well markers may later surface if the will casing is removed. Based on information for a technical expert in this field, NRC staff understood that the markers usually fall to the ground as the casing is disassembled, but sometimes the markers might be picked up by the workers conducting these operations. Of course this raised some health and safety concerns. In an effort to reconcile these concerns, it was decided to restrict the markers to the levels of activity listed in 10 CFR 30.71; thus, reducing any health and safety risks. This issue is further discussed in Enclosure 2 which is a page from the proposed rulemaking. This issue is further discussed in 50 FR 13797, the proposed rule for 10 CFR Part 39.
The staff also did not intend to require licensees to inventory or track the markers after the markers had been placed in a well. The physical inventory requirements of 10 CFR 39.37 only pertain to the licensee's receipt and storage of the markers. Nor was there any intent to place regulatory responsibility on the well owner or operator after the markers have been placed in a well.
Questions have also been raised concerning reciprocity with Agreement States. If Baker Sand's Texas or Louisiana licenses allow the company to use radioactive markers at temporary job sites, then the company is also allowed to use the markers under the 10 CFR 150.20 general license. NMSS does not consider this activity to be a transfer or disposal. However, Baker Sand would continue to need an NRC license if it intends to possess and store markers at its facilities in Alaska.
Regulatory references: 10 CFR 30.18, 10 CFR 30.71, 10 CFR 39.37, 10 CFR 150.20
Subject codes: 3.5, 11.2, 12.2