Re: Browner vis-a-vis Jackson

["Mark A. Smith" <web25@charweb.org>]

CERCLA does not contain an exemption for source, byproduct, and special 
nuclear material.  Excluding sites with such contamination from the NPL 
has been a matter of policy, not statutory authority.  In fact, there are 
sites on the NPL that are NRC regulated facilities.  However, so far as I 
know, the contamination at the sites that led to their inclusion on the 
NPL was not radioactive, but other hazardous materials.  

One site in New Jersey with which I am familiar was a former jet fuel 
processing facility.  A later tenant of the site operated under an NRC 
license.  There is contamination on the site both from the fuel 
operations and the radioactive material operations.  The EPA has it on 
the NPL for the fuel and the NRC is directing cleanup of the radioactive 
contamination.

One possible source of confusion might be that site cleanup is done both 
under RCRA and under CERCLA.  Of those two, the former exempts source, 
byproduct, and special nuclear material, while the latter does not.  At 
any operating site, there can be a significant amount of confusion over 
which statute applies, even from within the EPA staff conversant with 
each set of regulations.  In Oak Ridge several years back, the discussion 
over which set of regulations applied to the reservation activity went on 
for quite some time.

We can discuss the various site restoration/cleanup regulations pretty 
much forever, but this should answer the direct question about a CERCLA 
exemption.  Note also that there are CERCLA sites with NARM contamination 
being pursued by EPA (i.e., those not licensed by the NRC).  Whether or 
not they are on the NPL, though, I cannot answer offhand.

(usual disclaimer - personal opinion only and not binding on current or 
former or future employers)

Mark A. Smith, CHP
web25@charweb.org