ML20058A425
| ML20058A425 | |
| Person / Time | |
|---|---|
| Issue date: | 10/15/1990 |
| From: | Malsch M NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| SECY-90-253A, NUDOCS 9010260125 | |
| Download: ML20058A425 (10) | |
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POLICY ISSUE (Information) 1 Octobg 15, 1990 SECY-90-253A i
for:
The Commissioners fr_Qs:
Martin G. Halsch Deputy General Counsel for Licensing & Regulation Subicq1:
PROPOSED AMENDMENT NUMBER ONE TO THE AGREEMENT BETWEEN THE STATE OF ILLINOIS AND U.S. NUCLEAR REGULATORY COMMISSION PURSUANT TO SECTION 274 0F THE ATOMIC ENERGY ACT OF 1954, AS AMENDED (SECY 90-253)
Discussion:
My September 11,1990 Memorandum on the above subject included certain analyses provided by GPA and NMSS (responses to Questions 6 8) that should supplement the analyses in SECY-i 90 253 which is referenced in the Order responding to Kerr-McGee's hearing request.
I am forwarding these same analyses by SECY paper format to facilitate referencing in the Order, sY 1
i Martin G. Malsch Deputy General Counsel for Licensing & Regulation
Enclosure:
As Stated NOTE:
TO BE MADE PUBLICLY AVAILABLE IN 10 UORKING DAYS FROM THE CONTACT: Martin G. Malsch, OGC DATE OF THIS PAPER z
49 21740 DISTRIBUTION:
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OUEST10N 6 In discussing Section 332.70 of the Illinois regulations in the March notice, staff identified this section as more stringent, i
on the ground that Illinois was imposing objectives as technical requirements.
In the reevaluation, the generic exemption provision was cited as a basis for not raising a " concern in this area."
(igg Attachment 4 of SECY-90 253, p.5, item 2.) On page 7 of Attachment 4, the discussion indicates that Kerr McGee identified Sections 332.200,332.210(b)(6),and332.220(a)(2)as more stringent, noting that flexibility contained in NRC regulations has been eliminated under the State's regulations.
The response indicates that staff disagrees.
Could the staff please expand upon the discussion of this issue, explaining how the site specific application of provisions where flexibility has been removed will be considered as we implement our section 274(o) responsibilities?
ANSWER The three Sections specifically identified in the Kerr-McGee Chemical Corp.
(Kerr McGee) comment were Sections 332.200, 332.210b)6), and 332.220a)2). These three Sections will be individually addressed below.
Section 332.200 of State of Illinois Reaulations NRC's regulations in Criterion 1 and 12 of Appendix A state:
" Criterion 1 - The general goal or broad objective in siting and design decisions is permanent isolation of tailings and associated contaminants by minimizing disturbance and dispersion by natural forces, and to do so without ongoing maintenance.... Tailings should be disposed of in a manner that no active maintenance is required to preserve conditions of the site." and Criterion 12 The final disposition of tailings or wastes at milling sites should be such that ongoing active maintenance is not necessary to preserve isolation...."
The State's regulations state:
"Section 332.200 Stability of the Byproduct Material Disposal Site After Closure The disposal site shall be sited, designed, used, operated, stabilized and closed to achieve long term stability and to eliminate the need for active maintenance following closure so that only surveillance, monitoring, or minor custodial care is required."
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September 10. 1990 40 Appendix A. restoration to maximum contaminant levels (drinking water standards) would be consistent and acceptable if such standards were higher than the preoperational levels. Restoration to any level other than preoperational levels or the maximum contaminant levels specified in 10 CFR
- 40. Appendix A, would require the issuance of a variance.
Forpurposesofreceivint;authoritationforclosure,thelicenseemust establish that the disposal site will not result in groundwater contamination in excess of the standard set pursuant to Criterion 5 of 10 CFR 40, of Appendix A, i.e., the preoperational levels, the maximum contaminant levels or alternate concentration limits set by the Department. Although during operations the facility operator must comply with the restoration requirements of332.250(c),inordertoobtainauthorizationforclosure.Section r
332.120(e)requiresthatthelicenseesatisfythegroundwaterstandardsof Section 332.230(4).
I trust this explanation sufficiently clarifies the interaction of the two groundwater requirements.
If you have any further questions regarding the Department's rules for regulating source material milling facilities, please do not hesitate to contact us.
i Sin rely, hen $o 0Y Ste en C. Collins. Chief Division of Radioactive Materials
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O STATE OF lLLIN018 DEPARTMENT OF NUCLEAR SAFETY 1035 CUTER PARK DRIVE 8PRIN0FitLD,IL 62704 (217) 785 9900 THowas W. ORToetta JAWas A. THOWPeoN
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September 10,1990 owmen Mr. Dennis sollenberger State, local & Indian Tribe Programs Office of Governmental & Public Affairs U.S. Nuclear Regulatory Comission One White Flint Plaza 11555 Rockville Pike Rockville, Maryland 20852 Dear Mr. Sollenberger This is in response to your request for clarification of the relationship j.
between two sections of the Department of Nuclear Safety's rules entitled j
" Licensing Requirements for Source Material Milling Facilities," 32 Ill. Adm.
Code 332. $pecifically, we are providing an explanation of the groundwater l
l protection requirements codified at Sect'ons 332.230and332.250(c).
In Section 332.230(a)oftherules,theDepartmenthasincorporatedby reference the standards setting procedures and groundwater restoration j
requirements contained in 10 CFR 40, Appendix A. Criteria 5 and 13.
In addition, Section 332.253(c) of the Department's rules imposes, as an operhtional requirement, that:
An independent quality assurance program shall be established to i
assure that specifications of the monitoring program detailed in the license are met.
If adverse groundwater impacts or conditions conducive to adverse groundwater impacts occur, action shall be taken to alleviate the impacts or conditions and restore groundwater quality to levels consistent with those before operations began.
The requirement of 332.250(c),torestoregroundwatertoleveli, consistent with preoperation conditions, is an operational requirement.
It is the Department's intent that facility operations be conducted in such a manner as to not significantly degrade groundwater. Therefore, if contamination
-occurs. the Department would expect the facility operator to restore the groundwater. The degree of restoration would be the preoperational groundwater quality or some other level consistent with preoperational groundwater conditions. Using the logic specified in Criterion 5 of 10 CFR
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identifies the constituents for which standards shall be set or complied with if the specific constituent is expected to be in or derived from the byproduct material and has been detected in groundwater."
These two Sections of the Illinois regulations when implemented together appear to be consistent with NRC's regulations with the exception that the State will need to issue an exemption to the requirement in Section 332.250c) if the restoration efforts during operations will not bring the groundwater contamination to " levels consistent with those before operations began".
Such an exemption would allow the issuance of an ACL during operations under Section 332.230a) and would bring the Illinois regulatory program in this area to be essentially the same as NRC's program.
The wording in Section 332.250c) is considered to allow the establishment of standards (background or MCLs) and would not restrict the implementation of Section 332.230a) except for the ACL provision during operations.
(See Memo Collins to Sollenberger, Sept 10, 1990, attached)
The analyses in SECY-90 253 at Attachment 4, pg. 7 should be modified so as to be consistent with the above.
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00ESTION 8 The State appears to require preoperational ground water conditions.
Is the State required to invoke the exemption process to approve drinking water or alternate concentration limits for hazardous constituents?
(igt Attachment 4 of SECY-90 253, page 7, item 8.)
ANSWER The staff reviewed and considered the below sections of the Illinois regulations as the appropriate sections for the control of groundwater contamination.
Section 332.230(a) incorporates by reference the groundwater standards and requirements that NRC has codified in its regulations.
In addition, Illinois has added an additional requirement to " restore groundwater quality to levels consistent with those before operations began". This additional requirement in Section 332.250c) is considered to restrict the application of the ACL provision in Section 332.230a) during operations since Sectlon 332.250 is applicable only to the operational phase of the facility and as such this would be more stringent than NRC's program for addressing groundwater contamination during operations.
However, the Section 332.250e) provision does not apply during
. closure.
Therefore, there is no conflict between these provisions once -a facility has requested to proceed with closure of its facility.
The t
requirements for closure are specified in Section 332.120c) and this section
'does not reference Section 332.250.
The Illinois regulation Section 332.250c) states:
... If adverse groundwater impacts occur, action shall be taken to l
alleviate the impacts or conditions and restore groundwater quality l.
to levels consistent with those before operations began."
The Illinois regulation Section 332.2304) states:
"In order to provide adequate protection of groundwater resources, the disposal site shall be designed and constructed to conform with the requirements of Criterion 5 of 10 CFR 40, Appsndix A, in effect on January 1, 1989, exclusive of subsequent amendments or editions.
Criterion 13 of 10 CFR 40, Appendix A, in effect on January 1, 1989, identifies the constituents for which standards shall be set or
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. }4 particular site. Section 332.250 specifies operational requirements and is not applicable retroactively to facilities in reclamation.
Section 332.120(e) states the sections of the Illinois regulations that must be met during reclamation and Section 332.250 is not included.
As stated in the staff's assessment, in some cases chemical treatment may actually mobilize some constituents while immobilizing others. The net benefit may be to reduce. the overall level of hazardous constituents, however, the benefits of such treatment may be small compared to the cost of conducting the treatment.
However, since some overall benefit will likely be derived, the State requirement, which is clearly more stringent than NRC's, is adequate and passes muster under Section 2740.
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-OUESTION 7 In view of the statement that chemical treatment of wastes "...
may have a detrimental effect depending on the site-specific conditions...," what is the basis for the finding that the State's absolute requirement for treatment is adequate?
(igg
, of SECY 90 253, p.7, item 7.)
ANSWER With respect to the effect of chemical treatment of byproduct material required by Section 332.250b) on containment of hazardous constituents within the byproduct material, NRC's 10 CFR Part 40, Appendix A, Criterion SE, states:
"In developing and conducting groundwater protection programs, applicants and licensees shall also consioer the followinr:
(4) Neutralization to promote immobilization of hazardous constituents."
Section 332.250b) of the Illinois regulations states:
" Byproduct material shall be chemically and physically treated to immobilize or remove the contaminants."
As stated in the Illinois regulation, a licensee is required to chemically or
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physically treat all byproduct material to immobilize or remove the contaminants. This requirement to treat the byproduct material, in most cases, will decrease the mobility of most hazardous constituents.
The most common treatment for an acid leach facility has been neutralization of the tailings to a pH of between 7 to 10.
The chemical treatment of tailings through y
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neutralization was addressed in the GEIS, Appendix B Section 4.3 (NVREG-0706),
b.
A research report NUREG/CR-2938 also addressed this issue and discussed that neutralization can cause undesirable consequences, which need to be carefully considered on a site-specific basis. The Illinois program requires chemical and physical treatment of byproduct material, however, the specific treatments are
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not specified and must be determined on a site specific basis.
The Illinois-regulations provide in Section 310.30 an exemption provision that can be employed if there is no beneficial chemical or physical treatment at a l
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a "In these cases, it must be demonstrated that an above grade disposal program will provide reasonably eouivalent isolation of the tailinas from natural erosional forces."
The State's comparable sentence in Section 332.220a)2) states:
"The licensee shall also demonstrate that its proposed above grade disposal program will provide containment of byoroduct material eauivalent or superior to that which would be achieved from below grade disposal."
The underlined sections above are the sections identified by Kerr McGee as being different and causing the State standard to be more stringent than NRC's standard.
The staff considers the two paragraphs above to be essentially the same and does not consider the wording of the State's standard to be more stringent or impose additional requirements on the licensee. The lilinois staff intends to use professional judgment in determining whether any proposed programs meet-the regulatory requirements, in this light, " equivalent" is the same as
- reasonably equivalent".
The exemption provision can also be used to implement alternatives or it can be used to provide flexibility in implementing the regulations where on a site-specific basis the specific regulation is not protective or warranted.
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o 11 The staff considers the Illinois regulations to contain essentially the same requirements as the NRC regulations.
The wording is identical to that in the draft Part U of the Suggested State Regulations (SSR) in which the staff was prepared to concur.
The major difference is that the NRC regulations use the words "should" where the Illinois regulations use the word "shall".
The staff disagrees with Kerr McGee that this difference in wording makes the Illinois regulations more stringent.
Section 332.210b)6) of the State of Illinois Reaulations Section 332.210b)6) states:
"The disposal site shall not be located where other facilities, activities or land uses could adversely impact the ability of the site to meet the technical criteria of this Part, or mask the environmental impacts of the disposal area."
The first part of this section, "the disposal site... this Part", merely states what would be implicit in the " technical criteria of this Part" and imposes no additional requirements. The concluding clause addresses a purpose or objective i
not addressed by NRC requirements. The staff assessment identified this clause as being in addition to the requirements in NRC's regulations. The requirement does not conflict with NRC requirements; therefore, the staff did not consider this requirement to be more stringent or an alternative requirement subject to section 2740. The staff does not consider Kerr McGee's comment on this Section to be valid.
Section 332.220a)2) of the Illinois Reaulations The comment made by Kerr-McGee was that the flexibility in the NRC's regulation l
has not been preserved in the Illinois regulations. The specific reference is J
the l'ast sentence in Criterion 3 which states:
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