U.S. Nuclear Regulatory Commission

Request for Interpretation of 10 CFR 39.47, "Radioactive Markers"

HPPOS-272 PDR-93066100071

Title: 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

Applicability: All