ML19250A276
| ML19250A276 | |
| Person / Time | |
|---|---|
| Issue date: | 05/07/1979 |
| From: | Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| Shared Package | |
| ML19250A277 | List: |
| References | |
| REF-PROJ-M-25 SECY-79-088, SECY-79-88, NUDOCS 7910230002 | |
| Download: ML19250A276 (15) | |
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UNITED STATES S.-
NUCLEAR REGULATORY COMMISSION
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MAY 1979 6
MEMORANDUM FOR:
Chairman Hendrie Commissioner Gilinsky Commissioner Kennedy Commissioner Bradford Commissioner Ahearne FROM:
Howard K. Shapar Executive Legal Director THRU:
Lee V. Gossick i3E*E
Executive Director for Operations SUBJ ECT:
STAFF RESPONSE TO THE COMMISSION REQUEST FOR FURTHER INFORMATION REGARDING SECY-79-88 " TIMING OF CERTAIN REQUIREMENTS OF THE URANIUM MILL TAILINGS RADIATION CONTROL ACT OF 1973" The Offices of Executive Legal Director, State Programs, and Nuclear Material Safety and Safeguards have prepared this memorandum and the attached documents in response to the Commission's request for further information concerning the Uranium Mill Tailings Radiation Control Act.
Question 1 The Commission recuested a Legal analysis of how solution or in situ extraction of uranium is affected by the new Act.
Answer The staff analysis (attached as Appendix A) concludes that although the law is not entirely clear, the regulatory program in Title II of the Uranium Mill Tailings Radiation Control Act (" Mill Tailings Act") snould cover the management of the wastes from solution extraction that occur above ground (including such wastes before they are re-injected).
The Act does not, however, appear to require regulation of the subterranean ore codies depleted by the solution ext 2: tion process.
By i ts own tems,
the Mill Tailings Act provides for regulation of " tailings or wastes procuced by the extraction or concentration of uranium or thorium from Contac :
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. any ore processed primarily for its source material content." The tern of art " wastes" as used in this statute ordinarily connotes discrete materials capable of controlled disposal and thus includes above-ground wastes from in situ leaching or solution extraction that require controlled disposal.
This interpretation would comport with the language of the law, the fundamental purpose of the Act to protect the public and the envircnment from hazards associated with uranium milling residues, and the Congressional recognition in floor debate that in situ operations are covered by the regulatory program but may be likely candi-dates for exemption.
Thus the management of surface wastes from solution extraction would be subject to regulation under the Mill Tailings Act unless otherwise exempted.
On the other hand, the Mill Tailings Act does not apoear to require
.egulation of the uncerground ore bodies decleted by the solution extracti on.p roces s.
Notwithstanding the somewhat ambiguous definition of " tailings" in Title I of the Act, the tenns " tailings" and " wastes" as used in Title II's regulatory scheme suggest terms of art in the milling industry, referring to discrete materials capable of controlled disposal.
Neither tne language of the statute, the Ccngressicnal intent to protect the public and the environment for hazards associated with milling residues, the regulatory scheme (which generally requires govern-ment ownership and control of the regulated material not feasible with are bodies), nor the legislative history indicate that such ore bodies are subject to Title II.
Question 2 The Commission requested that the staff informally contact States with uranium mills, uranium mill ocerators, and interested environmental groups to obtain their comments on the recommendations of SECY-79-88.
Answer 1/
Tne Office of State 'rograms has orepared a summary of the comments -of uranium milling States (Accendix 5).
As a general rule, those States tnat respcnded prefer a deferral of the entire regulatory program in Title II of the Mill Tailings Act because they feel that their existing programs are adequate and tnat dual regulation would be counter-productive.
The Office of Nuclear Material Safety and Safeguards gathered comments fr:m the uranium mil'ing industry.
It has received comments from the following Corporations wno currently nave er are planning uranium recovery 1,/ Cecies of all ne commer.ts receivec are in Accendix F.
1199 122
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operations in the Agreement States:
. United Nuclear Corporation
. Bokum Resources Corporation
. Union Oil Company of California
. Pioneer Nuclear Inc.
. Gulf Mineral Resources Co.
. Phillips Uranium Corp.
. Exxon Minerals Co.
. Everest Minerals Corp.
. Union Carbide Corp.
. Cotter Corporation
. Cyprus Mines Corp.
. Ranchers Exploration and Development Corp.
., United States Steel Corporation
. Chevron Resources Company K'ithout exception, they reccmmend a status que related to mill tailings licensing for three years and scme offer a legal argument for this recomendation.
Pioneer, Cyprus, Phillips and Gulf express concern that a concurrent jurisdiction determination, resulting in a dual (NRC/ State) licensing action, may have an adverse impact en review schedules for proposals aircady under consideration by Agresent State licensing authorities.
Cyprus requests the Commission to decide these issues promptly to eliminate the uncertainty prospective operators are facing related to licensing.
The coments frcm the milling industry are su=arized in Appendix C.
The coments frem the envircnmental groups and one Indian Pueblo (summarized in Appendix D) unanimously support concurrent jurtsdiction and largely favor an interpretation of the Mill Tailings Act making the new requirements for Agreement State licensing cf milling operations effective immediately.
These groups provide legal arguments and assertions of potential damage to the environment contrary to the overall purpose of the legislation to protect the public and the environment from hazards a:sociated with uranium milling residues to support their position.
The principal authors of the Mill Tailings Act in the Senate and the House take the position that the Act should not be interpreted to require the Agreement States to immediately meet the new requirements of the Act in all cases or to require the duplicate licensing by the NRC of all uranium mills and mill tailings in Agreement States.
Rather, the NRC should exercise authority over mill tailings in non-Agreement States immediately, but the Agreement States may continue their licensing activities under prior authority for a three-year period.
A letter to this effect has been prepared and has been inserted as Appendix E of this paper.
Questien 3 The Ccemissic.
.sested that NMSS develop entingency plans for handline license applicatiens assuming the recc=endations of SECy-79-as were in effect.
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4 Inswer NM.SS is curren:1; assisting the Agreement States by evaluating tailings ana ge. er.: alterr.atives and raciclogical imoacts of new mill proposals.
- f the NRC were o pre:are a full environmental imcact statement related to licensing tailings for :hese same projects, the evaluations that have already been performed can easily be factored into an EIS format, thereby
'.ess enin; -he a:al im act on the agency.
Cuesti:n 4 Tha Cormissicn asked t:a: CELO prepare two versions of draft clarifying ie;is11 # 0n.
~nswer CE'.D has creparec two craf-bills (attached in Appendix G).
One bill would ce'.ay the en: ire regulatory program in Title II of the Act for th-ee years, as was or:vided in the original Commission version of the l e;i slati on.
The :tne-till w:uld codify the staff recommendation
- nat tre A:t re;uires :ne NRC :o license byproduct materials immediately, bu: does n:t ricuire tre Agree er.t States to meet new requirements for
-illin; :r tailirgs li:er.ses ur.til three years from the date of enactment.
- urther, OSLD 'r.as Orepared clarifying amendments for section 83 of the A :mic Er.ergy Act, as idcec by tr.e Mill Tailings Act.
Although not soecifically discussed in SECY-79-88, section 83 (which pertains to long-term ownership ar.d maintenance of land and tailings) presents timing
- r:blers simiiir to th:ss discussed in the Staff paper.
These amendments, anich aj :e a:ded to either draf t bill, appear in Appendix H.
- 0 rdinati:n NMSS anc S3 Ocr. cur in -h's memo, P prepare: A :endix E, NMSS preDared the swanary of ir.dustry cormen:s and the res:cnse to Question 3 c:ntained erein.
A dcward K. Shapar Q s/
Executive Legal Director 1-achrer 3 : -- (r g r,
.1 1::encix A:
CELC inaljs's "He the Uranium
'iill Tailing! :.a:i a-icr :cn:rc~ Act of
'.;75 #fects 5:1;-icr Ex rac:i:n o Uranium" 1:: enc'x 5:
5.m a y c' 1;reemen-State Cecren 5.9) l.24 1::e :'x 5.mrary :' viilin; :ncastry Ccmments. ^ 1:: enc'e :: 5.n ary c' Envircemen alis-C:mments.
- er.c' x E-C:r.;ressi:nal C:m er.t.
- '.es of C:mments Eeceivec.
- er.c' x E-C:r.;ressi:nal C:m er.t.
1 :erc'x :- 0 fj ! l 43I! f O t-- Lec..s.a 1cn. ar .-:: er.ci x .2. Y,! I 1 :er.cix C:-i:nalrencmen s i:r 2 Secti:n 12.
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h,7A I' l ~' r., SECRETARIAI RECORD.00P1 D d V,',,. ~ - 3 c-.)', lb Q o / 4 h,1 - 3 :' L INDEX Memorandum Appendix A: 0ELO Analysis "How the Uranium Mill Tailings Radiation Control Act of 1973 Affects Solution Extraction of Uranium Appendix 3: Summary of Agreement State Comments Appendix C: Summary of Milling Industry Comments Appendix 0: Summary of Environmentalis: Ccaments Appendix E: Congressional Ccmment Appendix F: Copies of Ccmments Received Appendix G: Draft Legislation Appendix H: Optional Amencments for Section 83 }}I9 l2b ^
APPENDIX A K0W THE URANIUM MILL TAILIN' ' RADIATICN CONTROL ACT OF 1978 AFFEC'i SOLUTION L (TRACTION OF URANIUM The Mill Tailings Act: Regulation of Mill Taillnas and Wastes The Uranium Mill Tailings Radiation Control Act of 1978 (" Mill Tailings Act")l/ amends section lie of the Atomic Energy Act of 1954 by adding a new section lle(2) to make tailings or wastes produced in milling operations licensable as byproduct material. Heretofore, the Atcmic Energy Act provided no direct licer. sing authority over such tailings or wastes. The scope of the new regulatory program established by the Mill Tailings Act is delimited by the new section lle(2) definition of byproduct material which includes "the tailings or wastes produced by the extraction or concentration of uranium or thorium from any are processed primarily for its source material content." In and of itself, this definition appears sufficiently broad to cover various types of milling techniques, including solution extraction of uranium. Although not entirely clear on this point, the Mill Tailings Act and its legislative record, however, suggest that the Congress was primarily concerned with the hazards from tailings piles resulting from conven-tional milling operations. Thus, tne question has arisen wnether the Mill Tailings Act applies to solution extraction, and if so, to wnat extent does it apply. 1/ Pub. L. No. 95-604, 92 Stat. 3021 (Nov. 8, 1978). ))4) bN
-2 The Solution Extraction Process: A New Technicue 2/ In conventional uranium recovery techniques, the ore is mined, crushed, ground in mills, and subsequently leached in either an acid or basic solution to extract the uranium. This process produces more than 1900 pounds of solid waste (tailings) for each ton of mined cre. These tailings, which resemble sand deposits, contain numerous naturally-occurring hazardous substances, both radioactive and nonradioactive. The greatest threat to public health and safety is presented by the long radioactive decay process of radium in the tailings into the inert gas radon, which may cause cancer or genetic mutation. The solution extraction process (also called in situ leaching or in-jection mining) produces considerably less tailings. With solution extraction, less than 5" of the radium from an ore body would be brought to the surface. The in situ leaching method involves (1) the injection of a leach solutien (lixiviant) into a uranium-bearing ore body to form a chemical compound with the uranium, (2) mobilization of the uranium complex formed, and (3) surface recovery of the solution bearing the uranium ccmplex via production wel's. Uranium is then separated from the leach solution by convent'onal milling unit operations. Unlike conventional milling operations, in situ leaching requires no are mining, transportation, or grinding. Moreover, the soluticn extraction process does not produce conventional mill tailings. It does, however, produce solid and liquid wastes ;nat require controlled 2/ This technical descriotion is derived from NUREG-C189, Final Environmental Statement Related to the E.<xon Mineral's Company Highland Uranium Solutis, Mining Projecc, Ch. 3 (Nov. 1973). 1199 127
disposal. These wastes are primarily precipitated calcium, coprecip-itated radium, some thorium, and spent resin from ion exchange columns. Disposal of the wastes from in situ leaching operations may be effected through management similar to that used for conventional tailings piles or through deep well disposal or reinjection. In short, solution extraction appears to offer significant environmental advantages over conventional milling. Unlike conventional milling, it does not result in enormous tailings piles. Solution extraction operations do, however, produce some hazardous surface wastes that require controlled disposal. The Scoce of Section lle(a): "Tailinos or Wastes" As stated above, Title II of the Mill T ilings Act establishes a regu-latory scheme to control environmental and health haza, ds from "the tailings or wastes produced by the extraction or concentration of uranium or thorium from any are processed primarily for its source material content." In this context, the words " tailings or wastes" are terms of art. According to Webster's Third New Internaticnal Dictionary (unabridged ed.1961), tailings means "... the gangue and other refuse material resulting from the washing, concentration, or treatment of ground ore..." and waste means "... a damaged, defective, or superfluous material produced during or left over from a manufacturing process or 'dustrial operation [such as] worthless material removed in mining or digging operations." Thus, in the ) ) '-)] kA0
~, . context of uranium milling operations, the terms tailings or wastes se2m to connote discrete residual materials capable of controlled disposal. Accordingly, a literal reading of the new definition of byproduct material would encompass the above-ground wastes produced in solution extraction of uranium or thorium primarily for its source material content. The host ore bodies remaining underground from which the source material was leached probably woule not, however, fall within the definiticns of tailings or wastes set forth above. Underground geological formations cannot be said to be discrete material capable of controlled disposal. An argument cceld be made, basad on the definitions in Title I of the Mill Tailings A:t, that the depleted underground are bodies left over from in situ leaching should be covered by the regulatory program in Title II. Section 101(8) provides that for the purposes of Title I, tne term tailings "means the remaining portion of a metal-bearing ore af ter some or all of such metal, such as uranium, has been extracted. Although this definition applies only to Title I, it is the only definition of tailiags in the Act and it might be argued that as such it is the best indication available of what the Congress meant when it defined section lle(2) byproduct materials as tailings or wastes in Title II. As will be shown below, however, neitner the legislative history of the Mill Tailings Act nor the practical ramificaticns of the Title II reg;13 tory program supcort this argument. 1199 129
. The Legislative history of the Mill Tailings Act would indicate that the Act was intended to regulate only tailings and wastes in the sense of discrete materials capable of controlled disposal. The Congress was primarily concerned about the health and environmental hazards posed by unattended tailings piles resulting from conventional milliing operations. While this concern also covers the above-ground wastes from in situ leaching (which closely resemble the conventional tailings), it probably cannot be extended to cover underground ore bodies (which pose no dangers comparable to those of conventional tailings). For example, the committee report discussing the bill most closely resembling the law as enacted explained the background and need for the legislation thusly: " Uranium mills are a part of the nuclear fuel cycle. They extract uranium from ore for eventual use in nuclear weapons and power plants, leaving radioactive sand-like waste-- commonly called uranium mill tailings--in generally un-attended piles. As a result of many years of uranium are processing, about 140 million tons have now accumulated at active and inactive milling sites, according to the Nuclear Regulatory Commission. "The committee is convinced that all tailings pose a potential and significant radiation health hazard to the public. Legis-lation is needed now to stabilize and control all such tailings in a safe and environmentally sound manner and to minimize or eliminate radiation health hazards to the public.... "The committee, however, is also convinced that it would be a grievcus and costly mistake to authorize a remedial program for inactive mill sites without also enacting regu-latory legislation to control the even more serious problem at active mill sites...." 1/ 1/ H.R. Rep. 95-1480, Pt. 2 at 25, 29 (1978). 1 1 o/ g i2n l l / fJU
. ~ Apparently the Congress was concerned about the hazards associated with milling residues occurring above ground--no matter what technique was used to generate that residue. As the committee stated, it was " convinced that all tailings pose a potential and significant radiation [ health hazard to the public." (Emphasis added.) By the same token, however, the discussion quoted above indicates that the concern centered on the above-cround tailings or wastes (i.e., discrete materials capable of controlled disposal) rather than depleted under-ground ore bodies. Although the Mill Tailings Act and its legislative history suggest that above-ground wastes from in situ extraction are covered by Title II, there is no such indication that depleted ore bodies were to be regulated. The only discussion of solution extraction appears in a couple of colloquies in which Senators Hart and Wallop state that although the surface wastes from in situ leaching may be licensable byproduct material, solution extraction in which wastes are re-injected is one area in which the NRC should consider exercising its discretion to exempt certain operations: "Mr. WALLOP. Mr. President, I would like to obtain a clari-fication frcm the distinguished Senator frcm Colorado, the chairman of the Nuclear Regulation Subcommittee, of several points regarding title II of the bill as passed by the other body. First, I understand that the other body revised the bill to pernit the Nuclear Regulatory Commission to exclude a uranium mill tailings disposal site frcm the requirement of a license if it determines that the site will not constitute an unreasonable risk to the public health and safety. This is the same discretionary authority now possessed by the Commission for other types of byproduct material. It occurs to me that this discretionary authority 1199 131
to grant exemptions from licensing would be particularly jf appropriate in the case of the so-called solution mining projects, in which uranium is brought to the surface by means of a fluid solution and is extracted with the remaining material pumped back belcw the surface. "Mr. HART. The distinguished Senator from Wyoming is entirely correct on each of the points he raised. The licensing exemption authority for mill tailings disposal sites could be exercised for sites where uranium mining and extraction is limited to solution techniques. In fact, the Commission may well exercise this exemption authority for other disposal sites where such an exemo-tion would not constitute an unreasonable risk to public health and safety." 4/ Senators Hart and Wallop also engaged in a discussion to the effect that "so-called solution mining projects, in which uranium is brought to the surface by means of a fluid solution and is extracted with the remaining material pumped back below the surface, would not generally be considered for transfer status under the new section 83b" of the Atomic Energy Act, which generally requires government ownership of land and tailings upon termination of the milling operations. 1/ These colloquies support the conclusion that surface waste from in situ extraction h covered by Title II of the Mill Tailings Act and that Congress was primarily concerned with the " risk to public health and safety" from surface tailings and wastes. Apparently the authors of the legislation thought it might be appropriate for NRC to exempt such wastes from regulation once the surface wastes were pumped back 4/ Cong. Rec. S19,037 (daily ed. Oct. la,1978). 1/ Cong. Rec. S18,718 (daily ed. Oct. 13,1978). 1199 132
underground, where their potential for harm would be minimized. If the Congress considered the remaining are bodies covered under Title II, this discussion surely would have mentioned ore bodies. Certainly no thought was given to regulating underground ore bodies, which pose a comparatively lesser threat to the public health and safety and the environment than even re-injected wastes. Another basis for rejecting an argument that the Mill Tailings Act would require regulation of depleted underground ore bodies that have been subjected to in situ leaching is that the new regulatory scheme in Title II is simply not geared toward regulation of subterranean geological formations. A geological formation occurring in nature is not ordinarily capable of perfectly clear demarcation, let alone controlled disposal as envisioned for " tailings and wastes" regulated under Title II. For example, section 83 of the Atomic Energy Act, as added by the new regulatory scheme, generally requires transfer of section lle(2) byproduct material and disposal sites to the government upcn termina-tion of the milling. It is hard to imagine how this provision could possibly be applied to vast andefined underground geological formations. In addition to the section 83 provisions for land and tailings reclama-tion and maintenance, the new section 161x provisions for financial sureties to assure reclamation and management of tailings disposal sites is also unworkable for depleted underground are bodies because i199 133
f -9 subterranean geological formations are simply not amenable to being " reclaimed" or " maintained" as specified in the Mill ailings Act. For the same reason, the new section 275 and section 83 provisions for EPA and NRC standards for exposure standards are inapplicable to underground ore bodies.
== Conclusion:== The Regulatory Program of the Mill Tailinos Act Acolies to Above-Ground " Wastes" From Solution Extraction, But Not to the Decleted Undercround Ore Bodies By its own terms, the Mill Tailings Act provides for regulation of " tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content." The term " wastes" as used in this statute appears i to include the above-ground wastes from in situ leaching that require controlled disposal. 6/ This interpretation would best cc port with the language of the law, the fundamental purpose of the Act to protect the public from hazards associated with uranium milling residues, and the Congressional recognition in floor debate that in situ operations are covered by the regulatory program, but may be likely candidates for exemption. Thus it appears that the better reading of the law is that management of the wastes from solution extraction that occur above-ground (including such wastes before the are re-injected) would be subject to regulation unless exempted. 1199 134
. On the other hand, it would appear that the Mill Tailings Act does not require regulation of the underground ore bodies depleted by the solution extraction process. Notwithstanding the somewhat ambiguous definition of " tailings" in Title I of the Act, the terms " tailings" and " wastes" as used in Title II's regulatory scheme suggest terms of art in the milling industry, referring to discrete materials capable of controlled disposal. Neither the language of the statute, the congressional intent to protect the public frcm health and environmental hazards, the regulatory scheme (which generally cen-templates government ownership and maintenance of the materials covered by Title II), nor the legislative history indicate that such are bodies are subject to Title II. j/ According to the NRC At:Orney who first develoced the new section '{! 1 lle(2) definiticn of byproduct material, the words "or wastes" were intentionally inserted so that the wastes from in situ leach-ing would be covered by Title II. 1199 135}}