U.S. Nuclear Regulatory Commission

DOT Reply to NRC Request for Clarification on Ex Post Facto Declarations by Shippers of Radioactive Materials

HPPOS-063 PDR-9111210249

Title: 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

Applicability: All