ML23241A992

DPO-2022-001, Case File

ML23241A992
Person / Time
Issue date:	06/06/2022
From:	Figueroa G, Nadim Khan NRC/OE
To:
References
DPO-2022-001
Download: ML23241A992 (1)

Text

DPO Case File for DPO-2022-001 The following pdf represents a collection of documents associated with the submittal and disposition of a differing professional opinion (DPO) from an NRC employee involving Licensee's Non-compliance with 10 CFR 30.36(g)(1) as documented in the University of Missouri Inspection Report.

Management Directive (MD) 10.159, NRC Differing Professional Opinions Program, describes the DPO Program. https://www.nrc.gov/docs/ML2312/ML23123A099.pdf The DPO Program is a formal process that allows employees and NRC contractors to have their differing views on established, mission-related issues considered by the highest-level managers in their organizations, i.e., Office Directors and Regional Administrators. The process also provides managers with an independent, three-person review of the issue (one person chosen by the employee).

Because the disposition of a DPO represents a multi-step process, readers should view the records as a collection. In other words, reading a document in isolation will not provide the correct context for how this issue was reviewed and considered by the NRC.

It is important to note that the DPO submittal includes the personal opinions, views, and concerns of an NRC employee. The NRCs evaluation of the concerns and the NRCs final position are included in the DPO Decision.

The records in this collection have been reviewed and approved for public dissemination.

Document 1: DPO Submittal Document 2: Memo Establishing DPO Panel Document 3: DPO Panel Report Document 4: DPO Decision

Document 1: DPO Submittal

NRC FORM 680 (09-2019)

NRC MD 10.159 Name and Title of Submitter U.S. NUCLEAR REGULA TORY COMMISSION DPO Case Number DPO-2022-001 DIFFERING PROFESSIONAL OPINION Date Received 09/29/2022 Organization Telephone Number (10 numeric digits)

Michael LaFranzo, Acting Chief; Materials Licensing Branch Martha Poston-Brown, Health Physicist RIII/DNMS and NMSS/DB (630) 829-9865 Name and Title of Supervisor Jared Heck, Deputy Director Organization Telephone Number (10 numeric digits)

RIII/DNMS (630) 829-9801 When was the prevailing staff view, existing decision or stated position established and where can it be found?

Date 06/06/2022 Where (i.e., ADAMS ML#, if applicable): nrc sharepoint teams Non-Concurrence-Process NCP-2022-002 Subject of DPO Licensee's non-compliance with 10 CFR 30.36(g)(1)

Summary of prevailing staff view, existing decision, or stated position.

No violation of NRC requirements occurred as the procedures as implemented did not cause a significant radiological impact.

Reason for DPO, potential impact on mission, and proposed alternatives.

The decision by management to remove the violation for failure of an NRC licensee to obtain an NRC approved decommissioning plan/procedures based on an NRC approval for reciprocity of the contractor's agreement state license could result in a significant radiological impact. The reviewer did acknowledge that the reciprocity approval should be addressed, but allowed the approval of conduct decommissioning work under reciprocity rather than a decommissioning plan and procedures to stand because in this specific case the radiological impact was not considered "significant."

Title 10 CFR 30.36(g)( 1) requires licensees to submit procedures for activities that could potentially increase health and safety impacts to workers or members of the public or could result in a significant increase releases or airborne concentrations. In this particular case, the licensee has no historical operations and were potentially generating an airborne concentration. If this decision were to stand, it establishes a precedent that could significantly reduce the NRC's oversight of licensee (or licensee's contractors) decommissioning plans and procedures that could impact radiation workers and/or members of the public and would effectively make the decommissioning plan rule null and void since this decision establishes the use of the reciprocity approval as a valid pathway to approval to perform decommissioning work. This is especially concerning due to the current protocols associated with reciprocity approval. Based on NRC inspection staff discussions with NRC licensing staff who review and approve reciprocity requests, the protocols do not include review of any work plan documents, rather it is a review of the license to verify that the agreement state license allows the licensee to perform the work identified in the request. For example, a radiography license, would be reviewed to verify the license authorizes radiography but does not include a review of radiography procedures as part of the reciprocity approval. In this situation, the NRC license staff member would verify that the licensee's agreement state license authorizes them to perform decommissioning work but did not include a review and approval of the work to be performed or the safety measures taken to protect workers, the public or the environment. Under some circumstances the reciprocity approval is communicated by licensing staff to inspection staff, but that is usually only within the same region. In this case, the reciprocity approval was issued by Region I licensing staff and there was no communication with Region Ill inspection staff (where the work was going to be conducted) that could have allowed Region Ill to inspect the decommissioning work while it was being performed. Subsequently, Region Ill identified the work had been performed by the NRC licensee's contractor when performing an inspection later in the year.

In the Non-Concurrence response, the decision maker stated that "... due to the low contamination levels encountered during this work evolution, the procedural controls the licensee's contractor used for this work, the expertise and knowledge of the licensee's contractor, and the intent of the regulation to allow limited decommissioning activities to occur prior to decommission plan approval, these specific activities conducted by the licensee did not rise to the level of significant potential health and safety impacts described in 10 CFR 30.36(g)(3)." However, it was shown in the Non-Concurrence response that 1) the contamination levels present during operation (prior to decommissioning) were nonexistent and 2) a sufficient quantity of radioactive material was removed in an aggressive decommissioning operation (scabbling of concrete to remove surface contamination) such that a radiation worker could have exceeded NRC dose limits. There is no basis within the regulation or guidance that allows the "procedural controls the licensee's contractor used" or "the expertise and knowledge of the licensee's contractor" to bypass the requirement of 10 CFR 30.36(g)(1).

Also, the Non-Concurrence decision maker stated: " I do not believe there is a violation of 10 CFR 30.36(g)(1) since the licensee submitted a decommissioning plan (currently in the review process and not yet approved)." However, 10 CFR 30.36(g)(3) states that "Procedures such as NRC FORM 680 (09-2019)

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Michael M. LaFranzo Digitally signed by Michael M. LaFranzo Date: 2022.09.12 12:49:28 -05'00' Orysia M. Masnyk Bailey Digitally signed by Orysia M. Masnyk Bailey Date: 2022.09.14 11:12:48 -04'00' Gladys J. Figueroa Toledo Digitally signed by Gladys J. Figueroa Toledo Date: 2022.10.07 15:39:49 -04'00' Martha Poston-Brown

Document 2: Memo Establishing DPO Panel

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 November 7, 2022 MEMORANDUM TO:

Geoffrey Miller, Panel Chair Region IV Bruce Watson, Panel Member Office of Nuclear Material Safety and Safeguards Stephanie Anderson, Panel Member Region IV THRU:

Mark D. Lombard, Director Office of Enforcement FROM:

Gladys Figueroa-Toledo, Differing Views Program Manager Office of Enforcement

SUBJECT:

AD HOC REVIEW PANEL - DIFFERING PROFESSIONAL OPINION ASSOCIATED WITH THE LICENSEE'S NON-COMPLIANCE WITH 10 CFR 30.36(G)(1) AS DOCUMENTED IN THE UNIVERSITY OF MISSOURI INSPECTION REPORT (DPO-2022-001)

In accordance with Management Directive (MD) 10.159, The NRC Differing Professional Opinion Program; and in my capacity as the Differing Views Program Manager (DVP PM); and in coordination with Mark D. Lombard, Director, Office of Enforcement, John (Jack) Giessner, RIII Regional Administrator, and the Differing Professional Opinion (DPO) submitter; you are appointed as members of a DPO Ad Hoc Review Panel (DPO Panel) to review a DPO submitted by a group of U.S. Nuclear Regulatory Commission (NRC) employees.

The DPO (Enclosure 1) involves the Licensee's Non-compliance with 10 CFR 30.36(g)(1) as documented in the University of Missouri Inspection Report. The DPO has been forwarded to Mr. Giessner for consideration and issuance of a DPO Decision.

The DPO Panel plays a critical role in the success of the DPO Program. Your responsibilities for conducting the independent review and documenting your conclusions in a report are addressed in the handbook for MD 10.159 in Section II.F and Section II.G, respectively. The DPO Web site also includes helpful information, such as a Differing Views Best Practices Guide, tables with status information and timeliness goals for open DPO cases, and closed DPO case files (which include previous DPO panel reports). We will also send you additional information that should help you implement the DPO process.

CONTACT:

Gladys Figueroa-Toledo, OE (301) 287-9497

G. Miller, et al.

2 Timeliness is an important DPO Program objective. Thus, the disposition of this DPO should be considered an important and time sensitive activity. Although MD 10.159 identifies a timeliness goal of 75 calendar days for the DPO panel review and report and 21 additional calendar days for the issuance of a DPO Decision, the DPO Program also sets out to ensure that issues receive a thorough and independent review. Therefore, the overall timeliness goal will be based on the significance and complexity of the issues, schedule challenges, and the priority of other agency work. Process milestones and timeliness goals specific to this DPO will be discussed and established at a kick-off meeting.

Communication of expected timelines and status updates are important in the effectiveness and overall satisfaction with the Differing Views Program. If you need an extension beyond the timeliness goal, please send an e-mail to Mr. Lombard, Mr. Giessner, the DPO submitter, and DPOPM.Resource@nrc.gov that includes the reason for the extension request and a proposed completion date.

An important aspect of our organizational culture includes maintaining an environment that encourages, supports, and respects differing views. As such, you should exercise discretion and treat this matter appropriately. To preserve privacy, minimize the effect on the work unit, and keep the focus on the issues, you should simply refer to the employees as the DPO submitters. Avoid conversations that could be perceived as hallway talk on the issue and refrain from behaviors that could be perceived as retaliatory or chilling to the DPO submitters or that could potentially create a chilled environment for others. It is appropriate for employees to discuss the details of the DPO with their co-workers as part of the evaluation; however, as with other predecisional processes, employees should not discuss details of the DPO outside the agency. If you have observed inappropriate behaviors, heard allegations of retaliation or harassment, or receive outside inquiries or requests for information, please notify the Office of Enforcement.

On an administrative note, please ensure that all DPO-related activities conducted by staff are charged to Activity Code ZG0007. Managers should report time to their Management/Supervisor Activity Code. Administrative Assistants should report time to their Secretary/Clerical Activity Code.

We appreciate your willingness to serve on the DPO Panel and your dedication to completing a thorough and objective review of this DPO. Successful resolution of the issues is important for the NRC and its stakeholders. If you have any questions or concerns, please feel free to contact me. We look forward to receiving your conclusions and recommendations.

Enclosures:

1. DPO-2022-001 Submittal (ML22308A064)

2. Process Milestones and Timeliness Goals (ML22308A066) cc: J. Giessner, RIII M. Shuaibi, RIII M. LaFranzo, RIII M. Poston-Brown, NMSS O. Masnyk Bailey, RI M. Lombard, OE

G. Miller, et al.

3 T. Martinez-Navedo, OE D. Solorio, OE G. Figueroa-Toledo, OE N. Khan, OE

G. Miller, et al.

4

SUBJECT:

AD HOC REVIEW PANEL - DIFFERING PROFESSIONAL OPINION ASSOCIATED WITH THE LICENSEE'S NON-COMPLIANCE WITH 10 CFR 30.36(G)(1) AS DOCUMENTED IN THE UNIVERSITY OF MISSOURI INSPECTION REPORT (DPO-2022-001) DATE: 11/07/2022 ADAMS Package: ML22308A062 MEMO: ML22308A063 - ML22308A064 - ML22308A066 OE-011 OFFICE OE: DPO/PM OE: D NAME GFigueroaToledo MLombard DATE 11/03/2022 11/ 07/2022 OFFICIAL RECORD COPY

Document 3: DPO Panel Report

June 26, 2023 MEMORANDUM TO:

Jack Giessner, Regional Administrator Region III FROM:

Geoffrey Miller, DPO Panel Chair/RA/

Region IV Bruce Watson, Panel Member/RA/

Office of Nuclear Material Safety and Safeguards Stephanie Anderson, Panel Member /RA/

Region IV

SUBJECT:

DIFFERING PROFESSIONAL OPINION PANEL REPORT ON THE LICENSEE'S NON-COMPLIANCE WITH 10 CFR 30.36(g)(1) AS DOCUMENTED IN THE UNIVERSITY OF MISSOURI INSPECTION REPORT (DPO-2022-001)

In a memorandum dated November 7, 2022, we were appointed as members of a Differing Professional Opinion (DPO) Ad Hoc Review Panel (the Panel) to review a DPO regarding the licensees non-compliance with 10 CFR 30.36(g)(1) as documented in University of Missouri Inspection Report IR030-02278/2022-001. The panel has reviewed the DPO in accordance with the guidance in Management Directive 10.159, The NRC Differing Professional Opinion Program. The scope was limited to a review of the issues identified in the DPO, as clarified through a Summary of Issues developed by the Panel and confirmed by the DPO submitters.

The Panel evaluated the issues through interactions with knowledgeable NRC staff and a review of various documents.

The results of the panels evaluation of the concerns raised in the DPO are detailed in the enclosed DPO Panel Report. The panel was able to reach alignment on all the issues expressed by the DPO submitter. The panel made the following conclusions:

1)

Chase Environmental Group, Inc., conducted decommissioning activities on behalf of the Curators of the University of Missouri without prior NRC approval of a decommissioning plan or procedures, contrary to the requirements of 10 CFR 30.36(g).

CONTACT: Stephanie Anderson, Senior Health Physicist 817-200-1213

J. Giessner 2

2)

The NRC guidance for reciprocity for licensees and license reviewers is adequate and clearly documented, though the location it resides is not widely known among NRC staff. The Panel did not identify any adverse impacts resulting from this knowledge gap to date and consider it a vulnerability for future errors or inconsistencies due to staff turnover.

We also offer the following recommendations for your consideration:

Reissue NRC Inspection Report to reflect a violation of 10 CFR 30.36(g)(3) occurred when the licensees contractor performed activities described under paragraph (g)(1) of this regulation without first obtaining NRC approval of a decommissioning plan.

Consider the granting of Enforcement Discretion for the violation of 10 CFR 30.36(g)(3) given it is not greater than very low safety significance and given the low level of experience of the licensee (University of Missouri) and their desire and attempt to take the correct actions to decommission the contaminated structure on their campus.

Region III should consider coordinating with the Region I State Agreements Officer to provide courtesy notification to the Commonwealth of Kentucky regarding the compliance issues associated with this case. Specifically, that reciprocity does not relieve licensees of their obligations to comply with other regulations (such as the need for an NRC approved decommissioning plan prior to performing decommissioning activities at an NRC facility), as stated in Article 9 of Chase Environmental Group Kentucky License 201-605-15.

NMSS should conduct refresher knowledge management/knowledge transfer training on the reciprocity approval process and the guidance in NUREG-1556, Volume 20.

Particular emphasis should be given that reciprocity approval for a licensee or licensed contractor does not relieve the responsible licensee of their other obligations under the Code of Federal Regulations Please do not hesitate to contact us if you have any questions regarding the enclosed report.

Enclosure:

DPO Panel Report

ML23177A276 X SUNSI Review By: SMG ADAMS:

X Yes No X Sensitive Non-Sensitive X Non-Publicly Available Publicly Available Keyword MD.8, A.3 OFFICE RIV/DRSS OE NMSS RIV/DRSS NAME SAnderson GFigueroa-Toledo BWatson GMiller SIGNATURE

/RA/

/RA/

/RA/

/RA/

DATE 6/20/2023 6/23/2023 6/23/2023 6/26/2023

Enclosure DIFFERING PROFESSIONAL OPINION (DPO) ASSOCIATED WITH THE LICENSEE'S NON-COMPLIANCE WITH 10 CFR 30.36(g)(1) AS DOCUMENTED IN THE UNIVERSITY OF MISSOURI INSPECTION REPORT (DPO-2022-001)

Panel Report Geoffrey B. Miller, Panel Chair Bruce A. Watson, CHP, Panel Member Stephanie G. Anderson Stephanie G. Anderson, Panel Member June 23, 2023

2 I. Introduction On September 29, 2022, several U.S. Nuclear Regulatory Commission (NRC) staff members filed a Differing Professional Opinion (DPO) in accordance with Management Directive 10.159, The NRC Differing Professional Opinions Program. The DPO involves the Licensee's Non-compliance with 10 CFR 30.36(g)(1) as documented in the University of Missouri Inspection Report. The DPO submitters stated that NRC Inspection Report 030-02278/2022-001 should be retracted and a new report issued that included a violation of 10 CFR 30.36(g)(1) involving the failure to obtain NRC approval of the decommissioning plan and procedures prior to initiating decommissioning activities.

The NRCs Office of Enforcement accepted the DPO on October 7, 2022, and assigned the DPO case number 2022-001. By memorandum dated November 7, 2022, the Office of Enforcement established an Ad Hoc Review Panel (the Panel) to perform a review of the DPO.

The Panel developed a draft Summary of Issues (SOI) and shared it with the submitters on January 5, 2023. Following discussions and feedback from the submitters, the DPO Panel and the submitters agreed to a final SOI on January 18, 2023. The SOI is documented Section II of this report.

The Panel was tasked with reviewing the individual DPO issues and providing conclusions along with recommendations, as necessary. Following initial discussions with the submitters and development of the SOI, the Panel developed its conclusions and recommendations by reviewing documents and conducting interviews with NRC staff. A list of documents reviewed, and NRC staff interviewed is provided in Section VI of this report.

II. Summary of Issues (SOI)

Based on a review of the DPO package including its attachments and a preliminary discussion with submitters on January 5, 2023, the following concerns as expressed by the submitters were identified by the panel:

1.

The licensee (University of Missouri) was in violation of 10 CFR 30.36(g)(1) requirements, and NRC Inspection Report IR030-02278/2022-001 should be withdrawn and reissued with a Notice of Violation, based on the following:

• The University of Missouri conducted decommissioning activities without an approved decommissioning plan despite meeting the criteria in 10 CFR 30.36.

• The contractor hired by the University of Missouri to perform decommissioning activities appropriately filed for reciprocity per 10 CFR 150.21 with Region I to be able to perform decommissioning activities in an area of NRC jurisdiction. The submission and approval of a reciprocity request (including work plans) does not satisfy the requirement for the NRC licensee (University of Missouri) to submit and obtain approval of a decommissioning plan per 10 CFR 30.36. The review for reciprocity only involved confirming the contractor was authorized to perform the types of planned activities in their Agreement State issued specific license.

2.

As part of independent oversight NRC inspects a sample of work activities performed under reciprocity, but the formal process for notifying other regions when reciprocity is

granted by the region in which the Agreement State is located for work to be performed in the other region is not widely known among staff.

III. Background NRC regulations at 10 CFR 30.36(g) state:

(1) A decommissioning plan must be submitted if required by license condition or if the procedures and activities necessary to carry out decommissioning of the site or separate building or outdoor area have not been previously approved by the Commission and these procedures could increase potential health and safety impacts to workers or to the public, such as in any of the following cases:

(i)

Procedures would involve techniques not applied routinely during cleanup or maintenance operations; (ii)

(ii) Workers would be entering areas not normally occupied where surface contamination and radiation levels are significantly higher than routinely encountered during operation; (iii)

(iii) Procedures could result in significantly greater airborne concentrations of radioactive materials than are present during operation; or (iv)

(iv) Procedures could result in significantly greater releases of radioactive material to the environment than those associated with operation.

(2) The Commission may approve an alternate schedule for submittal of a decommissioning plan required pursuant to paragraph (d) of this section if the Commission determines that the alternative schedule is necessary to the effective conduct of decommissioning operations and presents no undue risk from radiation to the public health and safety and is otherwise in the public interest.

(3) Procedures such as those listed in paragraph (g)(1) of this section with potential health and safety impacts may not be carried out prior to approval of the decommissioning plan.

The failure of an NRC licensee to obtain an NRC approved decommissioning plan/procedures and instead relying on NRC approval for reciprocity of the contractor's agreement state license could result in significant radiological impact and jurisdictional issues in the future. The Commonwealth of Kentucky license issued to a contractor does not pre-empt NRC (federal) requirements at NRC licensed facilities from being followed. NRC regulation 10 CFR 30.36(g)(1) requires all major decommissioning work be conducted in accordance with an NRC approved decommissioning plan. Also, 10 CFR30.36(g)(3) specifically states licensees cannot perform work that may result in potential safety impacts, such as an increase airborne activity that were present during operations and could result in greater releases to the environment than those associated with operation.

The NRC is required to authorize risk significant work that involves the safety and protection of workers and the environment to be described in an approved decommissioning plan, which is 3

incorporated as a license amendment for compliance. The decommissioning project that is the subject of this DPO is a Group 3 site per NUREG 1757, Volume 1. For this Group 3 decommissioning site, NRC approval is required to authorize decommissioning work under a decommissioning plan. NRC allows the reciprocity agreement to serve as authorization or approval for decommissioning activities provided certain safety reviews are approved by the NRC. As described by the inspectors, multiple areas of the concrete floor were scabbled to decontaminate the floor which had the potential to create airborne exposure concentrations in excess of NRC requirements.

The NRC guidance for reciprocity requests and approval for licensees and license reviewers is contained in NUREG-1556 Volume 19 and Volume 20, respectively. Based on the written guidance and discussions with NRC licensing staff who review and approve reciprocity requests, the approval protocols for granting reciprocity do not include review of work plan documents. Instead, reciprocity approval is based on a review of the agreement state license to verify the licensee is licensed to perform the work identified in the request. For example, a radiography licensee would be reviewed to verify the agreement state license authorizes radiography, but a review of specific radiography procedures or work plans is not performed as part of the reciprocity approval. For a decommissioning contractor, the NRC licensing staff would verify that the contractors agreement state license authorizes them to perform decommissioning work but would not perform a review or approval of the work to be conducted or the safety measures taken to protect workers, the public, or the environment as would be described in a decommissioning plan.

The Kentucky licensed contractor, Chase Environmental Group, may have had experience with these surface destructing activities, but the contractor did not have NRC authorization to perform these activities for the University of Missouri (the licensee) without an approved decommissioning plan. Per the requirements of 10 CFR 30.36(g) described above, a decommissioning plan and procedures were required given the nature of the work involved techniques not normally applied during cleanup or maintenance operations and given the levels of contamination and potential airborne concentrations for this specific case, the resulting radiological impact would be significantly greater than those associated with operation.

Consistent with 10 CFR 30.36(g)(3), the Curators of the University of Missouri submitted a proposed decommissioning plan for Pickard Hall for NRC review and approval on November 8, 2019 (ADAMS ML19312C596). Following discussions with NRC staff, the licensee submitted a revised decommissioning plan on February 8, 2021 (ADAMS ML21048A144). The licensee subsequently withdrew their proposed decommissioning plan by letter dated April 5, 2022 (ADAMS ML22096A027). From the NRC and University correspondence over the years, the university was aware of the decommissioning plan approval requirement for performing decommissioning work1.

1 For example, the NMSS decommissioning staff approved limited decommissioning activities by approving the licensees procedures and work packages in lieu of an approved decommissioning plan at the Hematite facility. This proved to be a poor regulatory decision since the licensee did not intend to fulfill its obligation under 30.36 (g)(i). The decommissioning plan required multiple revisions and over four years to approve.

4

5 IV. Evaluation Title 10 CFR 30.36(g)(1) requires licensees to submit a decommissioning plan and procedures for activities that could potentially increase health and safety impacts to workers or members of the public or could result in a significant increase releases or airborne concentrations.

Title 10 CFR 30.36(g)(3) prohibits the licensee from performing any work that may result in airborne concentrations or increase the likelihood of an environmental release prior to receiving NRC approval. In this case, the University of Missouri (licensee) has no historical records of operational experience, and surface destructive work that had the potential for generating an airborne concentration required radiological safety controls to be implemented. If Chase Environmental Group were allowed to perform this work for the licensee (University of Missouri),

it would establish a precedent that could significantly reduce the NRC's oversight of licensee (and licensee contractors) decommissioning plans and procedures that could impact radiation workers and/or members of the public. This would effectively nullify the decommissioning plan rule since it would establish the use of the reciprocity approval as a valid pathway for approval to perform decommissioning work. This is especially concerning because the protocols associated with reciprocity approval established in NUREG-1556 Volume 20 do not include a safety evaluation or review of the requestors procedures or work plans.

Based on previous characterization surveys, most of the residual activity at the licensee site is located in the basement of Pickard Hall. The Panel concluded the activities that occurred within the basement of Pickard Hall were not maintenance or cleanup operations as described in 10 CFR 30.36(g)(1)(i) and went beyond minimal activities needed to characterize and develop the decommissioning work plan. These activities included scabbling of the basement floor in areas with contamination in preparation for concrete cutting and demolition, removing drain lines of radiological concern below the basement floor slab, scarification of brick walls containing appreciable contamination, and coring the basement floor slab to sample underlying soils.

Therefore, implementation of these procedures with potential health and safety impacts may not be carried out prior to the approval of the decommissioning plan. Although reciprocity acknowledges Chase Environmental Group is licensed to perform decontamination and decommissioning services including demolition, remediation, and radiological survey, the reciprocity approval process cannot be substituted for an approved NRC decommissioning plan to perform the work at Pickard Hall. Procedures involving techniques not applied during cleanup or maintenance operations with the potential health and safety impacts may not be carried out without an approved decommissioning plan.

The Non-Concurrence response states:

...due to the low contamination levels encountered during this work evolution, the procedural controls the licensee's contractor used for this work, the expertise and knowledge of the licensee's contractor, and the intent of the regulation to allow limited decommissioning activities to occur prior to decommission plan approval, these specific activities conducted by the licensee did not rise to the level of significant potential health and safety impacts described in 10 CFR 30.36(g)(3).

However, Non-Concurrence 2022-002 documented that 1) the contamination levels present during operation (prior to decommissioning) were nonexistent, and 2) a sufficient quantity of radioactive material was removed in an aggressive decommissioning operation (scabbling of concrete) such as those listed in paragraph (g)(1) of 10 CFR 30.36 with potential health and

safety impacts that may not be carried out prior to approval of the decommissioning plan.

The fact the licensee submitted a decommissioning plan and procedures with the intent to meet 10 CFR 30.36(g)(1) requirements does not release the licensee from the requirement to obtain NRC approval of the plan and procedures prior to initiating decommissioning activities other than minimal activities to gather the information required for the plan, such as sampling to characterize the extent of contamination.

Furthermore, the Non-Concurrence document states... the inspector has not identified any specific safety deficiencies in the licensee's associated procedures or actions. This statement suggests the licensee can implement decommissioning work as described in 10 CFR 30.36, and NRC inspection staff can only cite violations against the requirement when a radiological incident occurs, implying that the requirements of 10 CFR 30.36(g)(1) to obtain NRC approval of the decommissioning plan and procedures only apply if there is an identified safety deficiency as the result of the work being performed.

The decision document also states: "...the licensee's contractor (Chase Environmental) had appropriate approval for limited decommissioning work at the licensee's location through the reciprocity approval process." This statement creates a pathway for noncompliance by a licensee who has responsibility for complying with the regulations (University of Missouri) by allowing the use of reciprocity for the contractor to assume decommissioning work on behalf of a licensee based on the subjective criteria of contractor experience in the field. Thus, the licensee would not need to submit decommissioning procedures to the NRC, circumventing the Decommissioning Plan Rule under 10 CFR 30.36. The panel concluded the granting of reciprocity per 10 CFR 150.20 does not satisfy the requirements of 10 CFR 30.36(g) to obtain NRC approval of decommissioning plan and procedures prior to commencing decommissioning work activities involving techniques not routinely applied during cleanup or maintenance operations or that have the potential for airborne concentrations or releases significantly greater than present during normal operation. The state license issued by the Commonwealth of Kentucky does not pre-empt NRC (federal requirements) for having an approved decommissioning plan before performing these activities. The contractors work plan, dated May 29, 2020, was not approved by the NRC.

SOI Issue 1: The licensee (U of MO) was in violation of 10 CFR 30.36(g)(1) requirements, and IR030-02278/2022-001 should be withdrawn and reissued with a Notice of Violation Panel Conclusion for SOI Issue 1:

The Panel agrees with the recommendation to retract the report and concluded instead a violation of 10 CFR 30.36(g)(3) occurred. The Panel also recommends that discretion be considered as deemed appropriate for the violation of 10 CFR 30.36(g)(3).

Per 10 CFR 30.36(g)(1), a decommissioning plan must be submitted if required by license condition or if the procedures and activities necessary to carry out decommissioning of the site and separate building or outdoor areas have not been previously approved by the Commission and could increase potential health and safety impacts to the workers or to the public. At the time of the inspection (July 2021), the University of Missouri had submitted a decommissioning plan to the NRC for review, so the licensee was in compliance with 10 CFR 30.36(g)(1). However, 10 CFR 30.36(g)(3), states procedures such as those listed in paragraph (g)(1) of this section may not be carried out prior to approval of the decommissioning 6

7 plan. Because the NRC had not approved the licensees submittal (which the licensee subsequently withdrew), the University of Missouri failed to comply with the requirements of 10 CFR 30.36(g)(3). The granting of reciprocity to Chase Environmental Group licensed the contractor to perform decommissioning activities in areas of NRC jurisdiction; it did not relieve the University of Missouri licensee of its responsibilities to obtain NRC approval of a decommissioning plan prior to conducting decommissioning activities.

SOI Issue 2: the formal process for notifying other regions when reciprocity is granted by the region in which the Agreement State is located for work to be performed in the other region is not widely known among staff.

Panel Conclusion for SOI Issue 2:

The Panel concluded the guidance for 10 CFR 150.20 provided in Section 3.2.10 of NUREG 1556, Volume 20, Revision 1, is clear and remains valid. Similar guidance is provided in NUREG 1757 Volume 1, Revision 2, Appendix K and provides templates for reciprocity communications. In conducting interviews with multiple license reviewers, the Panel confirmed NRC staff are relying heavily on knowledge-based skills gained through on-the-job training, in that most had difficulty locating official NRC written guidance beyond uncontrolled regional desktop guides. As such, the NMSS staff should conduct refresher training for materials license reviewers on the reciprocity approval process to ensure consistent application across the Agency. Particular attention should be given to emphasize that granting of reciprocity to a licensee or licensed contractor does not relieve the licensee of their other obligations under the Code of Federal Regulations. An interim corrective action could be to provide a presentation on reciprocity agreements for regional Inspectors and NMSS Staff after this DPO is concluded. A follow up presentation should be provided at the next Annual Decommissioning Counterparts meeting so the issues can be re-visited and shared with other Regional Offices. The inspectors and staff should be solicited to provide feedback for strengthening the guidance.

Other recommendations:

The licensee (University of Missouri) management and Radiation Safety Officer should as a minimum be reminded of NRC requirements that they are responsible for all licensed activities, and that this responsibility cannot be delegated to a contractor, regardless of whether the contractor has a license or reciprocity.

V. Conclusions In sum, the Panel concludes as follows:

1) Chase Environmental Group, Inc., conducted decommissioning activities on behalf of the University of Missouri without prior NRC approval of a decommissioning plan or procedures, contrary to the requirements of 10 CFR 30.36(g).

2) The NRC guidance for reciprocity for licensees and license reviewers is adequate and clearly documented, though the location it resides is not widely known among NRC staff.

The Panel did not identify any adverse impacts resulting from this knowledge gap to date and consider it a vulnerability for future errors or inconsistencies due to staff turnover.

8 VI. Recommendations The Panel recommends the agency take the following actions:

1) Reissue NRC Inspection Report to reflect a violation of 10 CFR 30.36(g)(3) occurred when the licensees contractor performed activities described under paragraph (g)(1) of this regulation without first obtaining NRC approval of a decommissioning plan.

2) Consider the granting of Enforcement Discretion for the violation of 10 CFR 30.36(g)(3) given it is not greater than very low safety significance and given the low level of experience of the licensee (University of Missouri) and their desire and attempt to take the correct actions to decommission the contaminated structure on their campus.

3) Region III should consider coordinating with the Region I State Agreements Officer to provide courtesy notification to the Commonwealth of Kentucky regarding the compliance issues associated with this case. Specifically, that reciprocity does not relieve licensees of their obligations to comply with other regulations (such as the need for an NRC approved decommissioning plan prior to performing decommissioning activities at an NRC facility) as stated in Article 9 of Chase Environmental Group Kentucky License 201-605-15.

4) NMSS should conduct refresher knowledge management/knowledge transfer training on the reciprocity approval process and the guidance in NUREG-1556, Volume 20. Particular emphasis should be given that reciprocity approval for a licensee or licensed contractor does not relieve the responsible licensee of their other obligations under the Code of Federal Regulations VII. List of Interviews & Documents Reviewed by the Panel A. Key Personnel Contacted Casey Alldredge, RIV Health Physicist Neil OKeefe, Branch Chief RIV/DRSS/MLB Joseph Nick, Team Leader RI/ORA/EGL Jared Heck, Acting Director, RIII/DRSS Kathryn Brock, Director, NSIR/DPR Orysia Masnyk Bailey, RI/DRSS/DIRHB/Health Physicist Martha Poston-Brown, NMSS/DUWP/URMDB Health Physicist Michael LaFranzo, RIII/DRSS/DIORB Sr Health Physics Decommissioning Inspector Roberto Torres, RIV Sr Health Physicist Latischa Hanson, RIV Health Physicist

B. Key Documents Reviewed Curators of the University of Missouri NRC Materials License No. 24-00513-32, Amendment 128 NRC Inspection Report IR030-02278/2022-001 NUREG-1556, Volume 20, Consolidated Guidance About Materials Licenses: Guidance About Administrative Licensing Procedures, Final Report, Revision 1 NUREG-1556, Volume 19, Guidance for Agreement State Licensees About NRC Form 241 "Report of Proposed Activities in Non-Agreement States, Areas of Exclusive Federal Jurisdiction, or Offshore Waters" and Guidance for NRC Licensees Proposing to Work in Agreement State Jurisdiction (Reciprocity), Final Report, Revision 1 NUREG-1757, Volume 1, Consolidated Decommissioning Guidance, Revision 2 NRC Nonconcurrence NCP 2022-002, University of Missouri Inspection Report, April 14, 2022 (ML21432A167)

Chase Environmental Group, Inc., Kentucky License 201-605-15, dated December 6, 2019 Chase Environmental Group, Inc., University of Missouri Pickard Hall Pre-Demolition Radiological Work Plan, May 29, 2020 NRC Form 241 reciprocity request from Chase Environmental Group, Inc, approved on June 5, 2020 The Curators of the University of Missouri Proposed Decommissioning Plan for Pickard Hall dated November 8, 2019 (ML19312C596)

University of Missouri Decommissioning Plan for Pickard Hall revision dated February 8, 2021 (ML21048A144)

University of Missouri Withdrawal Letter for Decommissioning Plan for Pickard Hall dated April 5, 2022 (ML22096A027)

NRC Acknowledgement Letter for Withdrawal of Decommissioning Plan for Pickard Hall dated June 2, 2022 (ML22202A527) 9

Document 4: DPO Decision

August 3, 2023 MEMORANDUM TO:

Michael LaFranzo, Senior Health Physicist Decommissioning, ISFSI and Reactor HP Branch Division of Radiological Safety and Security, Region III Martha Poston-Brown, Health Physicist Uranium Recovery and Materials Decommissioning Branch Division of Decommissioning, Uranium Recovery and Waste Program Office of Nuclear Material Safety and Safeguards Orysia Masnyk Bailey, Health Physicist Decommissioning, ISFSI and Reactor HP Branch Division of Radiological Safety and Security, Region I FROM:

John B. Giessner Regional Administrator, Region III John B.

Giessner Digitally signed by John B.

Giessner Date: 2023.08.03 13:36:50

-05'00'

SUBJECT:

DIFFERING PROFESSIONAL OPINION DECISION INVOLVING DPO-2022-001 The purpose of this memorandum is to inform you of my review and conclusions regarding the Differing Professional Opinion (DPO) you submitted on September 29, 2022. The DPO raised concerns about the U.S. Nuclear Regulatory Commission not issuing a Severity Level IV violation (the lowest level violation) to the Curators of University of Missouri licensee for work performed without an approved decommissioning plan or procedures in 2020. Your DPO also discussed your disagreement with Non-Concurrence-Process NCP-2022-002 decision, which upheld that no violation occurred.

A summary of concerns raised in the DPO and my conclusions are listed below. In developing my conclusions, I took into consideration the DPO Panels analysis and recommendations as documented in its independent and thorough review report (ML23177A276) which I generally agree with. Specific clarifications and amplifications are discussed below. I also reviewed the non-Concurrence evaluation, talked to a DPO submitter, discussed the topics with the DPO panel and talked to other RIII staff involved. For detailed evaluation on each concern, please review the DPO Panel analysis.

Summary:

Chase Environmental Group, Inc., conducted decommissioning activities on behalf of the Curators of the University of Missouri without prior NRC approval of a decommissioning plan or procedures, contrary to the requirements of 10 CFR 30.36(g). This is a violation of low safety significance. An NRC approved plan was required because the known levels of contamination

M. LaFranzo et. al.

and the scope of work planned met at least one of the four cases outlined in 10 CFR 30.36 (g)(1). Authorization to perform work in another state, regulated by the NRC, by Chase Environmental Group Inc. (a contractor for Curators of the University of Missouri) using the reciprocity process did not satisfy the requirement for Curators of the University of Missouri to have an approved decommissioning plan or procedures from the NRC. Approval of the reciprocity only verified the Agreement State license held by Chase Environmental authorized the proposed activities, not that the detailed procedures and plans were appropriate or approved by the NRC for this specific case. The fact that detailed plans were provided by Chase to the NRC during the reciprocity process and that the NRC did not disposition those plans during the reciprocity review or explain to Chase and the University of Missouri that those plans were not reviewed or dispositioned in the reciprocity process no doubt confused the issue.

Notwithstanding the violation discussed above, it is reasonable to conclude that Chase Environmental and the licensee likely believed they obtained approval for the work Chase performed in 2020 via the reciprocity process because Chase submitted detailed plans as part of the reciprocity process, and the NRC approved that reciprocity application without any communications to Chase or the University of Missouri that it did not review the detailed work plans Chase submitted during that process. For these reasons, I recommend pursuit of enforcement discretion in accordance with section 3.5 of the NRC Enforcement policy.

SOI Issue 1: The licensee, University of Missouri was in violation of 10 CFR 30.36(g)(1) requirements, and IR030-02278/2022-001 should be withdrawn and reissued with a Notice of Violation.

Answer SOI 1: I agree there is a violation. I concluded that a violation of 10 CFR 30.36(g)(3) occurred instead of a violation of 10 CFR 30.36(g)(1). I further conclude that the violation is of Severity Level IV. At the time of the inspection (July 2021), the University of Missouri had submitted a decommissioning plan to the NRC for review, so the licensee was in compliance with 10 CFR 30.36(g)(1). However, 10 CFR 30.36(g)(3), states procedures such as those listed in paragraph (g)(1) of this section may not be carried out prior to approval of the decommissioning plan. Because the NRC had not approved the licensees submittal, the requirements of 10 CFR 30.36(g)(3) were not met. The granting of reciprocity to Chase Environmental Group licensed the contractor to perform activities in areas of NRC jurisdiction; however, it did not relieve the University of Missouri licensee of its responsibilities to obtain NRC approval of a decommissioning plan prior to conducting decommissioning activities. This is true regardless of any confusion that may have been created as a result of the detailed work plans included in the application for reciprocity and the approval of reciprocity staying silent on the standing of those work plans. I also recommend that discretion under Section 3.5 of the Enforcement Policy for the violation of 10 CFR 30.36(g)(3). My recommendation for discretion is based on the potential confusion created by submission and lack of specific disposition of the detailed work plans during the reciprocity review.

SOI Issue 2: The formal process for notifying other regions when reciprocity is granted by the region in which the Agreement State is located for work to be performed in the other region is not widely known among staff.

SOI Issue 2: Although the Panel concluded the guidance for 10 CFR 150.20 provided in Section 3.2.10 of NUREG 1556, Volume 20, Revision 1, is clear and remains valid, the issues surrounding this DPO show there is unfamiliarity by some staff members.

M. LaFranzo et. al.

Actions:

After careful consideration of your DPO, I concluded there was a violation, there is no immediate safety concern, and these are items of low safety significance. There are issues that need to be addressed. No current violation exists.

As such, I am directing the Division of Radiological Safety and Security, Region III to do the following:

Issue an NRC Inspection Report to reflect a violation of 10 CFR 30.36(g)(3) occurred when the licensees contractor performed activities in 2020 described under paragraph (g)(1) of this regulation without first obtaining NRC approval of a decommissioning plan.

In parallel with the above, develop an enforcement package and hold an enforcement panel with the sole goal of considering Enforcement Discretion for the violation of 10 CFR 30.36(g)(3) given that this violation is not greater than very low safety significance and the likely miscommunications/confusion that existed between the licensee and the NRC as a result of the submission of the detailed work plans during the reciprocity application and the NRCs silence on the standing of those work plans upon approval of the reciprocity application.

I am requesting NMSS:

NMSS should consider refresher knowledge management/knowledge transfer training on the reciprocity approval process and the guidance in NUREG-1556, Volume 20.

Particular emphasis should be given that reciprocity approval for a licensee or licensed contractor does not relieve the responsible licensee of their other obligations under the Code of Federal Regulations.

Although the DPO panel concluded the NRC guidance for reciprocity for licensees and license reviewers is adequate and clearly documented,,,, they also noted a vulnerability for future errors or inconsistencies. NMSS should consider program changes to strengthen the program and eliminate possible gaps.

I want to thank you for bringing your concerns to my attention. I appreciate you taking the time to document and share your concerns. Your willingness to raise concerns through the DPO process is consistent with our organizational values of Openness and Commitment. Our agency relies on dedicated professionals, such as yourself, who are willing to raise concerns that could impact the NRC mission.

ML23215A221 OFFICE RIII-ORA NAME JGiessner:bw DATE 8/3/2023