ML20151Y424

Transcript of 980617 Public Meeting Re Briefing by Natl Mining Assoc on Regulations of U Recovery Industry.Pp 1-47. with Related Documentation

ML20151Y424
Person / Time
Issue date:	06/17/1998
From:	NRC COMMISSION (OCM)
To:
References
REF-10CFR9.7 NUDOCS 9809180232
Download: ML20151Y424 (57)

Text

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1

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Title:

BRIEFING BY NATIONAL MINING ASSOCIATION ON REGULATION OF THE URANIUM RECOVERY INDUSTRY PUBLIC MEETING j

Location:

Rockville, Maryland i,

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Date:

Wednesday, June 17,1998 j

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j Pages:

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i ANN RILEY & ASSOCIATES, LTD.

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Washington, D.C.20005 9809180232 99C617

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T DISCLAIMER This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Commission held on June 17, 1998,-in the Commission's' office at One White Flint North, Rockville, Maryland.

The meeting was open to public attendance and observation.

This transcript has not been reviewed, corrected or edited, and it may contain inaccuracies.

4 The' transcript is intended solely for general f

informational purposes.

As provided by 10 CFR 9.103, it is.

not part of the: formal or informal record of decision of the i

matters discussed.

Expressions of opinion in this j

transcript do not necessarily reflect final determination or beliefs.

No pleading or other paper may be filed with the i

i Commission in any proceeding as the result of, or addressed to, any statement or argument contained herein, except as the Commission may authorize.

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.1 UNITED STATES OF AMERICA j

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NUCLEAR' REGULATORY COMMISSION I

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4-BRIEFING BY

.5 NATIONAL MINING ASSOCIATION ON 6

REGULATION OF THE URANIUM RECOVERY INDUSTRY 7-l

8 PUBLIC MEETING

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10 Nuclear Regulatory. Commission l

11 One White Flint North 1

12 11555 Rockville Pike 13 Rockville, Maryland i

14 15 Wednesday, June 17, 1998 16 17-The Commission met in open session, pm:suant to l

18' notice, at 10:00 a.m.,

the Honorable Shirley A. Jackson, 19-Chairman, presiding.

20 COMMISSIONERS PRESENT:

22 SHIRLEY A. JACKSON,-Chairman of the Commission 23' GRETA J. DICUS, Member of the Commission 24 NILS J. DIAZ, Member of the Commission 25' EDWARD McGAFFIGAN, JR., Member of the Commission I

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STAFF AND PRESENTERS SEATED AT THE COMMISSION TABLE:

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.2 JOHN C. HOYLE, Secretary r

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3 KAREN D.

CYR, General Counsel i

4 KATIE SWEENEY, NMA I

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ANTHONY THOMPSON, Shaw, Pittman, Potts & Trowbridge l

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6 GENE,RAL RICHARD LAWSON, NMA 7

MARK WITTRUP, ESPRI

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'8 STEPHANIE BAKER, ESWNI

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. PROCEEDINGS

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[10:06 a.m.]

3 CHAIRMAN JACKSON:

Good morning, ladies and i

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4 gentlemen.

Today representatives of the National Mining 5

Association have' requested an opportunity to brief the l

6 Commission on its white paper' entitled, " Recommendations for 7;

a Coordinated Approach to Regulating the Uranium Industry."

8 The National Mining Ascociation promised to 9

-provide this white paper at a. briefing of the Commission in.

10 May, 1997.

The paper was provided to the Commission in 11 April of this year and this meeting provides an opportunity 12 for the National Mining Association to discuss aspects of 13

'the paper that it feels are most important for the 14 Commission to focus on.

15 Currently the MRC Staff is evaluating the. entire i

h 1C framework under which the uranium recovery operations are i

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regulated and is developing a detailed approach to be l

1 18 presented to the Commission on how best to proceed.

1 19 This paper we expect to be presented to the i

20 Commission for approval in the near future.

This gives us 21 then the opportunity to consider the issues raised in your 22 white paper and discussed here today when it reviews the.

23-recommendations by the Staff.

i 24 Now I understand that viewgraphs of your i

1 25 presentation are available, copies of tne viewgraphs, at the i

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entrances to the. room, and unless my colleagues have

.2 anything to add, Mr.-Lawson, please proceed.

'3-GENERAL LAWSON:

Thank you very much Madam 4

Chairman and Commissioners, and members of the-Staff, and we 5'

are thrilled to have this kind of a turnout here today.

6 In the agenda, I thought I'would give some brief 7

' opening remarks and kind of set the stage for our actions, 8

and'then turn the discussions over to Mr. Thompson and Ms.

9 Sweeney to cover some of the specifics in the procram, and 10 then we have members from the industry here as well to 4

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. provide additional insights.

12 The. National Mining.Asscciation, as I think you

-13 know, represents all of the mining that goes cx1 in the 14 United States, and.our efforts are to work as carefully as 15 we can to provide an~ environment for that activity to occur 16 and which not only meets the needs of the industry but meets 17 the needs of the country as a whole.

18 In our industry.we say that everything begins.with 19 mining,and'that'is only'a little bit of an expansion on 3

20 reality.

Last= year the U.S. economy used 47,000 pounds per-21 person of itens and energy that we took out of the earth in 22-order to make this economy of ours run.

23 We are really talking here today about those items-24' associated with the, uranium industry, but I would just 25 remind all of you that mining coal and uranium orovide 80 ANN RILEY & ASSOCIATES, LTD.

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percent of the electricity that is used in this country and when you look out to the future and the needs of our economy 2

3 as projected from the Department of Energy, you begin to see how critical that is to the country because now and the year 4

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2010 our electrical grid is being asked to add an amount of 6

electricity equal to that currently used by Japan and 7

Germany, our two principal competitors, so it is a 8

remarkable program out there in front of us and those who 9

are familiar with energy in the most basic form realize that 10 given some of the environmental concerns about certain 11 aspects of the electrical industry and given the 12 technological demands that are coming forth, this is a time 13 when we need all of the energy that we can find for this 14 country of ours because there are about two billicn people 15 that will also join us at the same time that have to be fed 16 and housed and clothed.

17 Our efforts in this study -- and by the way, let 18 me once again, cs I did a year ago, congratulate the 19 Commission upon the establishment of this assessment.

It 20 comes at exactly the right time for all of us to put 21 together our heads on how to proceed into the 21st century, 22 it seems to me, and that is what we tried to do in this 23 paper.

24 We discussed, as you will recall, a year ago, we 25 kind of circled around some of the problems and we gave a l

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few of the incidents that we have concerns on, but in this i

2 white paper what we have tried to do is say if we were part 1

3 of your Staff, what are the kinds of issues that we would j

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re-examine after this first 20 years?

What kinds of 5

technology, what kinds of expertise, what kinds of legal

-6 thoughts -- what are the general dimensions of the Staff's 7

problems as they make this assessment and how can we provide 8

assistance?

9 In that fashion, let me just say as a postscript 10 to this briefing, we will be there for any assistance thac 11 any of the Staff need, for any discussions that any of the 12 Staff need, and to provide anything else that will be useful 13 because we believe that in the 21st century nuclear energy 14 is indeed not going to have a rebirth -- is going to be 15 forced to have a rebirth because of the huge energy demands 16 that are just around the corner for the entire globe.

17 So with that kind of a background, let me just ask 18 Tony and Katie to proceed with the presentation.

We will 19 all be available for questions and thank you again for 20 inviting us.

21.

CHAIRMAN JACKSON:

Thank you.

You are going to 22 begin?

23 MS. SWEENEY:

Yes, I am Katie Sweeney, Associate 24 General Counsel for the National Mining Association. NRC's 25 strategic assessment and rebaselining initiative really t

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1 struck a chord with the National Mining Association's 2

. uranium recovery members.

It is not often that a Government

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agency can or is willing to conduct.a strategic assessment

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4-of its regulatory program.

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While NMA had identified some problems, some 6

regulatoryLproblems that could pose serious problems, it 7

wasn't until NRC came'outLwith its strategic assessment that

?8 we realized that w strategic reassessment of the Uranium 9

Recovery Program was exactly what was needed, so NMA's white 10 paper builds on'NRC's strategic assessment concept and at 11-heart really is a request that NRC perform a strategic 12 reassescment of some key NRC positions taken regarding the 13 uranium reccvery industry with a view towards the goal of 14 optimization of protection of public health, safety, and the 15 environment, something'that we believe both NRC and industry 16 would like to see achieved.

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This presentation is, as General Lawson said, IS' intended to provida to you with NMA's input on the issues 19 integral to such a reassessment and offer some i

20 recommendations on.how they should be addressed.

21 The white paper is an opportunity to address these 22 potential regulatory problems to ensure they are minimized 23 or eliminated before they undermine the intent of the 24-Uranium Mill Tailings Implementation and Control Act or 25 UMTRCA.

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We believe the white paper recommends a common 2

sense approach for conducting a reassessment of the Uranium R.ecovery Program and we believe the recommendations make 3

4 sense _and we'll help NRC conduct a strategic reassessment of 5

the Uranium Recovery Program.

We also believe the 6

recommendations will assist NRC in instituting a 7

legally-sound program consistent with UMTRCA.

'8 The white paper addresses four regulatory 9

positions for NRC to reassess.

10 The first is jurisdiction of nonagreement states 9

I 11 over nonradiological components of 11e.2 byproduct material.

12 The second is NRC jurisdiction over-in in-situ 13 leach facilities.

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I 14 The third is disposal of non-11e.2 byproduct l

15 material and tailings impoundments.

16 Finally is NRC's alternate feed policy.

l'7 We will discuss each of those in turn today.

-18 Why is reconsideration necessary?

Reconsideration 19 is needed because these positions were adopted over the last 20 20 years on an ad hoc basis, in response to specific 21 questions and specific circumstances, without always 22 considering whether an efficient, coherent program was being 23 achieved.

24 I must stress that this is not intended as blame l

25-or criticism'of NRC Staff, but we are criticizing these l

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positions,. recognizing that there'may be reasons they were 2

reasonable or appropriate atethe. time they were developed.

3 Just because these positions have been followed

'q 11 since~they were-developed, that should not' prevent NRC from j

5 revisiting these positions nor as.new questions arise from y

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' adopting theLmindset to stand back from an. issue and'look at s

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.the whole program to see if the right' questions are being' j

8' asked'or.if'an efficient, cohesive program is.being l9..

developed.

10 Basically the1genaral problem witn the positions

, 11-Ltaken is that these positions, particularly those on j

' 12 Ejurisdiction, have become de facto Staff policy and they

- 13 have been conformed to since their inception, built on, and

.14-various regulatory questions and puzzles have been 15' developed, i

16 MR. THOMPSON:

I guess.one of the next points that 17 we:are making is some of the positions that were taken in 1

. 18 those days, while they may have made sense at the time,

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19 aren't really compatible with the industry as it exists i

. 20 today.

i 21 For example, the memorandum in 1980 assumed that 22 the: focus.of.the NRC regulations was radiological and not

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.nonradiological, and in fact at the time the NRC's draft and 1

, 12 4-final. regulations were going to address groundwater on a jr0 25 site-specific basis as did EPA's first standards for their

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Title I' sites, but by 1983 groundwater standards were

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. promulgated and~now groundwater is the most problematic 3

issue.at any uranium' recovery facility, not control of the 4'

radon or.the radiation hazards.

5 There was an assumption there would be.an enormous 6v number of additional mills -- I think some 50 or so.

ISL 7

was considered to be just -- you know, going to be a minor F

8' contributor to uranium production, yet now ISL production is t

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the primary focus of production, and you have in the ISL 10 area also an extensive EPA Safe Drinking Water Act,

11 underground injection control program,.that-regulates these 12 facilities as well.

13 So that is just by way of sort of a quich 14 reference to why we think things are little bit different 15 than back when some of these decisions were made.

16 MS. SWEENEY:

The most crucial issue addressed in 17 the White Paper is jurisdiction of non-agreement states over 18' the non-radiological components of 11e.2 byproduct material.

19 In 1980 NRC's Office of. Executive Legal Director issued an 20 advisory legal cpinion concluding that federal law does not t

l 21 pre-empt the exercise of non-agreement state authority over 12 2 the non-radiological aspects of 11e.2 material.

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-23 As discussed in extensive detail in the text of V

the White Paper, this conclusion is legally unsound.

We 24; 25

.would like to call your attention to the four reasons cited 1o ANN RILEY &. ASSOCIATES, LTD.

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1 by OELD to support is opinion.

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First, the opinion advanced the idea that since it 3

appeared that radiological hazards, as Tony just discussed, 4

radon emissions, associated with those tailings and waste 5

would be the primary focus of regulatory concern.

And that 6

meant that federal pre-emption of agreement state regulation 7

existed only with respect to the radiological aspects.

This 1

8 argument is clearlj incorrect since, as Tony just explained, 9

UMTRCA requires both the Environmental Protection Agency and j

10 NRC to regulate both. radiological and non-radiological 11 components of uranium mill tailings and related waste from i

12 the point of their generation to their ultimate dirposition.

13 Second, the OELD opinion cited the fact that i

14 states regulate NORM, which is naturally occurring 15 radioactive material, which is similar in nature to these 16 mill tailings waste.

OELD found this supported its 17 conclusion that states have concurrent jurisdiction over the 18 non-radiological components of 11e.2 material.

But this 19 argument makes no sense since the definition of 11e 20 byproduct material is what makes the legal difference, as 21 recognized in NRC's non-11e.2 disposal policy.

22 Third, the OELD found that the states' ability to 23 take custody of these sites after license termination 24 implied that states have an independent authority over these 25 cites.

But that is not the case.

The state can only take l

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_ custody by becoming an NRC licensee, and then they will be l

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regulated by NRC and not have authority over the site 3

themself.

4 Fourth, the OELD asserted that the savings clause 5

. contained in Section 275 of the Atomic Energy Act gave the 6

states authority over these sites.

This' savings clause 7

states'that.the UMTRCA amendments are not intended to impact 7

8 EPA authority under the Clean Water Act or the Clean Air 9

Act. _The OELD appeared to reason that to the extent states 10 have derivative authority from the Environmental Protection 11 Agency, they can continue to exercise authority over 12 hazardous constituents.

The savings clause does not even 13.

mention NRC authority and the Ninth Circuit recently held 14 the savings clause does not give EPA the authority to 15 regulate _11e.2 by product material, so it would be difficult

_16 for the states to claim that that same savings clause ~would 17 give them authority-to do so.

18 CHAIRMAN JACKSON:

I am confused.

19 MS. SWEENEY:

Okay.

20 CHAIRMAN JACKSON:

I mean it almost sounds as if 21 you just walked your way through to say that the savings 22 clause doesn't give anybody authority.

23 MS. SWEENEY:

I think that what the Court said --

24 and, Tony, jump in if you feel I am -

is that the savings 25 clause was not intended to impact the authority of the j

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Environmental Protection Agency under the Clean Water Act or 2

the Clean Air Act in other regards.

And --

3 CHAIRMAN JACKSON:

According to -- yes.

4 MS. SWEENEY:

Yes.

And -- what were you going to 5

say, Tony?

6 MR. THOMPSON:

Well, I think that -- I think you 7

said it.

I mean the opinion seems to suggest that it 8

doesn't affect the Environmental Protection Agency's 9

authority under the Clean Water Act or the Clean Air Act, 10 except that now we have, ir. conjunction with the Supreme 11 Court Opinion, something that says that under the Clean 12 Water Act, EPA doesn't even have the authority to regulate l

13 byproduct material.

l 14 MS. SWEENEY:

Right.

15 MR. THOMPSON:

Including 11e.2 byproduct.

Under l

16 the Clean Water, the savings clause doesn't affect the i

17 authority of EPA to issue regulations under the Atomic i

18 Energy Act, which they clearly were given and which 19 regulations has conformed its regulations to.

20 CHAIRMAN JACKSON:

Okay.

21 COMMISSIONER McGAFFIGAN:

Madame Chairman.

22 CHAIRMAN JACKSON:

Yes, please.

23 COMMISSIONER McGAFFIGAN:

On an issue of this 24 sort, that has been kicking around for 18 years, and I guess 25 some of the others are almost similar duration, you are l

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basically arguing, our General Counsel's Office or its 2

predecessor erred, but -- and court decisions have come 3.

down.

But if the Congress is indeed going to look at our 4

authorizing statues in some comprehensive way later this 5

year, as is implied in some of the Appropriati s3 Report 6-language, do you want us to clarify, or do you want Congress 7

to clarify some of these matters?

8 MS. SWEENEY:

I think that some of them could be 9

clarified without --

10 COMMISSIONER McGAFFIGAN:

Without statute.

11 MS. SWEENEY:

Without statute.

I think that, l

3 12 particularly on the jurisdictional issues that we are 13 raising, that it is something that the Commission could do 14 on their own.

I don't think that statutory changes are 15 needed to implement the recommendations.

However, if that 16 would help.

17 COMMISSIONER McGAFFIGAN:

But let me just ask --

18 you know, there's always multiple parties.

If we were to do i

19 what you are. suggesting, in clarifying the two 20 jurisdictional issues, the other one that you are going to 21 come to, who is going to take us to court saying that we 22

,have erred on the other side?

And would you -- if there's l

1 23 ru) one, then we don't have to worry,-but if there is 24-someone, would we be better off having Congressional i

1 25 statutory clarification and legal clarification at that

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point'just so we. don't get into these endless court cases?

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'2 I love lawyers,'but I don't like lawyers' entitlement acts.

3-MS. SWEENEY:

I think.that if you' implemented all i

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of'our recommendations, might you face some issues with the l

5 states?

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COMMISSIONER'McGAFFIGAN:

Yes.

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MS. SWEENEY:

I would say greater-than -- yes, t8.

greater than-50 percent chance that'you would.

I think it's 1

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statutory changes probably would'give you a stronger L

10-basis'for contesting their arguments in court.

But they are-11 not --

12 COMMISSIONER.McGAFFIGAN:

But I wouldn't guarantee l'

'13 that they,would take it to court.

I mean you have agreement 14'

-- I think:if-you are talking about, as your notice had 15 suggested, that in conjunction with rulemaking, raising 16-these issues for public. comment, you would get a plethora of:

17 comment and be able to sort through it and see what you i

- 18' think with respect to.what the public has said.

Certainly,

'l 19' there might be some agreement states who would come in and 20 say, yeah, we agree with this.

We go-through all the

-21 trouble of_becoming an agreement state and, essentially, a i

22 non-agreement state has more authority than we do, that 23 doesn't make sense.

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2l4 So I would -- I mean it hasn't come to litigation, t

25 really, yet, except in a very special case in the past.

And V

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I think part of that is that the issues weren't ripe until

'2 now.

Now, you have a bunch of these sites' going to closure 3

and the. issues of where a non-agreement state gets involved 4

with. final site closure of a mill tailing site are just 5

coming to the fore because you just now have the site 6

starting to go to closure.

7 COMMISSIONER DICUS:

I have a follow-up question 8

to Commissioner McGaffigan's point that he was making.

9 Specifically, do you know of individual views of any states, 10 if we were.to assume the authority of 11e.2 material, the 1

11' issue that you had before us, of any particular views how 12 the states -- the non-agreement states would really view 13 this, or EPA, their points on this, specifically?

14 MR. THOMPSON:

I would suspect that Utah and L

15 Wyoming, who have been fairly aggressive in expressing their 16 views, would take a different view.

Whether they would, you 17 know, do any more than express their opinions in terms, in a 18 rulemaking proceeding, obviously, I couldn't say.

19 I know that, presumably, an agreement state like 20 Colorado will present a slightly different approach.

Having 21-

-an agreement state program that is covering mill tailings 22 and has from the 1980s on, I suspect they would advance a 23~

different position.

24-MS. SWEENEY:

And I don't think we have any views 25

-on EPA, on their thoughts.

I haven't or I don't --

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MR. THOMPSON:

No, I mean I don't know that EPA --

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it seems'to me this is really -- really, NRC's call.

I mean 3

we'know that EPA sets the general applicable standards and I

4 we know that EPA has, for ground water,'provided equivalent 5

to RCRA standards for mill tailings, and we know that EPA is 6

forbidden from issuing RCRA permits for mill tailings sites.

7 SC, I don't know that EPA would be actively involved in 8

this.

9 MS. SWEENEY:

We would like to provide you with 10 some examples of problems with.the concurrent jurisdiction 11 position.

I would like to acknowledge that these are 12 potential problems, at least for now.

But with more sites 13 nearing closure, there is a greater likelihood that one of 14 these problems could occur.

15 The first example is the potential for perpetual 16 license.

In January 1998, NRC and the Department of Energy 17 finalized their working protocol on license termination and 18 transfer of custody of 11e.2 byproduct material facilities.

19 The protocol states NRC will not terminate any site-specific 20-license until the site licensee has demonstrated that all 21 issues with state regulatory authorities have been resolved.

22 1his language was presumably included to address 23 concerns that DOE could be required by the Federal 24 Facilities Compliance Act to resolve these state issues

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25 after license termination.

While this provision may address ANN RILEY & ASSOCIATES, LTD.

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DOE concerns, it forces any Title 2 site that is subject to 2

complex state regulations, _such as ground water standards, 3

to grapple with the prospect of a substantial delay in

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termination of the-license, even after the-licensee has 5

completed remediation satisfying all NRC requirements.

6 Given the active role playing by states such.as 7

Wyoming in extending their regulatory jurisdiction over 8

uranium mill tailings sites, this scenario will likely be 9

played out at many Title 2 sites and may result in serious 10 delays in license termination, or perhaps even a perpetual 11~

license situation.

12 The protocol, as agreed to by both NRC and DOE, 13 demonstrates.that DOE is extremely reluctant to accept title 14=

-to sites where concurrent jurisdiction means states will be 15

'able to require clean-up measures even after all NRC 16 requirements have been made.

17 A second example is that concurrent jurisdiction 18 could also potentially create a whole new category of 19 licenses.

For example, say a site has completed surface 20 stabilization and been granted an alternate concentration 21 limit.

Anything within the point of exposure would remain 22 within NRC jurisdiction, but under the concurrent

.23 jurisdiction approach, states would have jurisdiction over 24 ground water inside and outside the point of exposure.

And 25 if there are non-hazardous, non-radiological constituents in l

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such ground water that exceed the state standards, rtates j

2 may require the licensee to institute pump and treat 3

technology.

If this involves pumping and treating 11e.2 4

byproduct material outside the point of exposure, a new 5

license for 11e.2 material could be required, which raises 6

some interesting questions such as -- What if the licensee 7

doesn't own the land outside the point of exposure, who will 8.

be the licensee, and where will the material being treated 9

be disposed?

10 A final problem is the concurrent jurisdiction 11 could also pose a potential threat to the Agreement State l

12 Program and Tony was just talking about this.

13 Agreement states must carefully conform their 14 regulation of radiological and nonradiological hazards 15 associated with 11e.2 material to federal standards, as 16 required by UMTRCA.

?Ionagreement states, on the other hand, 17 are free to regulate 11e.2 material without any regard to 18 consistency with the federal standards 19 In other words, agreement states would have to 20 comply with stringent requirements in order to achieve and 21 retain their agreement state status and yet receive less 22 authority over 11e.2 material than they would otherwise be 23 able to exercise as nonagreement states and we don't think 24 this makes much sense.

25 CHAIRMAN JACKSON:

Please.

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COMMISSIONER McGAFFIGAN:

Is there real cases at 2

the moment in Colorado and New Mexico that different from 3

Wyoming and Utah in how they are going about terminating and 4-turning over to DOE sites?

Can you discern real differences 5

in the programs of those states?

+

6 MS. SWEENEY:

At the moment, since only two Title 7

II licenses have been terminated, and other sites are just 8

starting to go through the process, I don't believe that we 9

see any noticeable differences at this juncture.

10 COMMISSIONER McGAFFIGAN:

Which two are 11 terminated?

12 MS. SWEENEY:

TVA and Atlas Blue Water.

13 COMMISSIONER McGAFFIGAN:

And Arco?

14 MS. SWEENEY:

Arco -- I mean Arco Blue Water, I'm 15 sorry.

Got Atlas on the brain.

16 MR. THOMPSON:

There have been assertions by state 17 regulatory officials in New Mexico, Wyoming and Utah that we 18 are aware of suggesting that they, because of their 19 authority to regulate nonradiological constituents right up 20 under the pile -- not just inside the point of exposure --

21 that.they even have authority to review the surface 22 stabilization plan because part of the surface stabilization 23 is to prohibit infiltration and therefore it impacts 24 groundwater and therefore they have a derivative authority.

25 That has been expressed, in some cases in writing.

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1 MS. SWEENEV:

I am sure as more sites are going.

t 2

through the closure process, I think we will see some i

\\

3 diverging activities between -- differences between the i

4 agreement states and the nonagreement states in their i

.5

approaches.

i

.6 COMMISSIONER DICUS:

But there have been to date 7

no actual problems of the transfer in DOE..What I am i

8 getting at is wanting to address an issue before it becomes 9

a problem, is that a fair statement?

10 MS. SWEENEY:

Correct.

Definitely.

11' 1The National Mining Association's recommendation 12.

on the concurrent jurisdiction issue is we are asking the i

13 Commission to re-evaluate the current de facto policy being 14 applied and to aff'rmatively assert and as needed vigorous

)

i 15 defend Federal preemption in this area.

16 CHAIRMAN JACKSON:

Please.

17 COMMISSIONER DICUS:

If the NRC were to do this, I 18 want to try -- no, let me ask my question and see if I have 19 to explain it.

L20 If we were to do this, would there be in your view 21 net harm to the public health and safety or net improvement 22 in the public health and safety?

I am trying to tie the 23 action to a health and safety issue if there is one, or is 24 the issue predominantly legal and economic?

25 Can you tie those together for me?

i 1

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1 MS. SWEENEY:

That's a big one.

Do you want to --

l l

2 MR. THOMPSON:

I think you can.

I think you can 3

-in the sense that you are going to. optimize regulatory --

I 4

MS. SWEENEY:

-- efficiency.

l f

5.

MR. THOMPSON:

-- efficiency.

What you may wind 6

up with is the nonhazardous, nonradiologial constituents in j

i 7

groundwater, for example, driving the issue of when you can l

8 terminate a license.

i 9

The NRC's program is risk-based.

Alternate 10 concentration limit is a site-specific risk-based standard.

11 The State of Wyoming says that'we don't do risk-based.

You i

12 have to meet a more stringent standard where there is any 13 risk to human health or not.

That is one example, so we 14 think that it would promote human health and safety because l

15 the-idea is to get these piles closed,-address whatever 16 issues there are related to them in terms of long-term l

17 public care and public exposure, get them stabilized, get f

1 18 the groundwater done and get on with it.

19 That would be my answer.

20 MS. SWEENEY:

And I think that that's right and I 21 think that the risks being addressed by NRC encompass what 22 the states are trying to achieve.

1 think what we have is 23 duplicative and that if the states were out of it, the 24 public certainly wouldn't be at any greater risk.

They are 25-already protected by the Nuclear Regulatory Commission and I

1 ANN RILEY & ASSOCIATES, LTD.

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the Environmental Protection Agency.

2 MR. THOMPSON:

I am just going to briefly address 3

the in-situ issue.

4 As I mentioned, in-situ at the time that opinion 5

came out was really a very small, tiny -- you know, R&D kind 6

of a thing and now it is really dominating production in 7

this country.

8 Our view of that opinion is that it really is 9

perhaps -- I don't know why -- I mean it's sort of an 10 aggressive position on taking jurisdiction there and a more 11 reluctant position on taking jurisdiction over --

12 pre-emptying jurisdiction, shall we say.

13 There is an inconsistent application of some of 14 NRC's definitions and things as they are applied, as far as 15 we are concerned NRC doesn't regulate or that is taken from 16 underground or surface uranium mines and stored on pads at 17 the surface or transported to the mill, because NRC has 18 traditionally not regulated source material until it's 19 removed from its place in nature.

20 We view this mining as mining and not underground 21 milling, which is what the Staff position is.

22 Also, the whole reason for creating 11e byproduct 23 material was that there was no source material left in the 24 tailings at.05 percent or greater.

The uranium in the 25 solution coming out of the underground mine is not at.05 l

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percent until it gets at least to the I-X, and perhaps 2

further and it is not refined.

It is unrefined and 3

u.nprocessed according to the definition of that, as far as 4

we consider it.

5 So the final thing I guess is you have now the EPA 6

UIC Program and basically what that says is you have got to 7

get an aquifer exemption first which says this is not a 8

drinking water aquifer that you are operating in because you 9

have got minerals in there and you have got high levels of 10 radionuclides.

You can't drink it because you have got, for 11 example, radon concentrations in hundreds of thousands, 12 perhaps millions of picocuries per liter, so they grant you 13 an aquifer exemption within a certain confined area, and 14 then you have to get a UIC permit which says how you pump it 15 and all that, and that is completely overlapping with NRC 16 right now.

17 It is totally duplicative and the states as 18 well -- for example, in Wyoming the state has a very 19 sophisticated, I would day -- fair statement? --

20 sophisticated program that involves ISL because they have a 21 lot of ISL mines, so basically we think it would make sense 22 for the NRC to regulate the discrete surface wastes from ISL 23 mining because that is really what the Mill Tailings Act was 24 looking at and not at the we11 fields as such.

25 I guess the -- I am not going to dwell on this ANN RILEY & ASSOCIATES, LTD.

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effluent guidance because the Staff is changing the effluent 2

guidance in response to comments and discussions we have had 3

with'them, but as an example, you get into'all kinds of sort 4

of funny situations.

I mean.under the current situation we 5

are saying that the NRC -- that we have milling underground, 6

yet the' wastes that are created underground are not 7-byproduct material, whereas the waste created by milling on B

'the surface, the tailings and the contaminants-that get into 9

.the groundwater, are considered 11e.2 byproduct materie.1, so H10

.that we wind up with a mixture of what we call production 11 wastes, which are 11e.2 byproduct materials because the 12 wellfield is part of NRC's jurisdiction currently, and then 13 the restoration of the wellfield, which is not 11e.2 14 byproduct material, and that has led to a mixture of wastes 15 in the past in sludges, for example, that are a mixture of 16 process and restoration wastes.

17 What that then has resulted in is when you say, 18 well gee, we have a non-11e.2 policy that says we are not l

19 supposed to put in effect restoration wastes in the' tailings 20 pile, we have come up with predominant waste tests.

We are 21 having to jerrv -rig at this point in this point in time and l

22 we are saying that if most of the wastes created by ISL are l

)

23 from process then we can put it in the tailings pile and we L

24 will call it all 11e.2, because most of the wastes are 25 restoration.

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Well, if that predominant test is the predominant 2

source test, you could put anything in a big enough mill 3

tailings pile because it is going to be swamped by the fact 4

that 98 percent of everything in there is 11e.2, so it just 5

that I guess again, getting back to che strategic 6

reassessment, you have got to sort of back-and-fill now in 7

some of these situations and that is what has happened and 8

it creates perplexing situations for I think the Staff and 9

for the licensees as well.

10 Our recommendation would be for NRC to consider 11 essentially regulating the surface activities of ISL 12 facilities, waste that is to go to tailings piles, such as 13 filters, things of that nature, that are on the surface, but 14 to get out of the wellfields, 15 COMMISSIONER McGAFFIGAN:

Again, this has been in 16 place for 18 years and things have changed, but would we be 17 leaving a gap?

I guess Wyoming hasn't come to rely on your 18 testimony, but has EPA come to rely on us-in other cases, 19 and would our backing off and juFt dealing with the surface 20 activities leave them in any fix or not?

21 MR. THOMPSON:

I don't believe so.

I mean I 22 believe that EPA proceeds independently under the UIC 23 provisions and those who are concerned, for example, with 24 issues relating to an ISL project, there is a complete 25 public input process involved in EPA's UIC program, so that l

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1 proceeds independently and in duplication of what NRC is 2

currently doing., and indeed perhaps in triplication with 3

certain states.

l 4

CHAIRMAN JACKSON:

Okay.

Commissioner?

5 COMMISSIONER DICUS:

Follow-up on that.

Does the EPA's UIC program provide the same degree v

i 7

of protection to the environment as ours, more or less?

8 MR. THOMPSON:

I would say yes, the same.

Mark i

9 might be able to speak to the specifics more than --

10 MR. WITTRUP:

I would say in general more, 11 especially as administered in my case by Wyoming.

12 CHAIRMAN JACKSON:

EPA's provides more?

13 MR. WITTRUP:

Yes.

14 CHAIRMAN JACKSON:

Okay.

15 MS. SWEENEY:

The third issue addressed in the l

16 white paper is NRC's final guidance for disposal of 17 non-11e.2 byproduct material and tailings piles.

18 Under the guidance, a facility may dispose of 19 non-11e.2 material and tailings impoundments only after 20 satisfying nine criteria specified in the guidance.

The 21 purpose of the guidance is to prevent inappropriate 22 commingling of mill tailings with non-11e.2 materials and 23 tailinJs piles in order to prevent a mixed waste situation, j

24 and thus to avoid any duplicative regulation by EPA or a 25 state and also to avoid DOE reluctance to accept title to i

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the site.

2 We believe that guidance is too restrictive, 3

making it very difficult to actually dispose of such 4

materials and tailings piles.

5 Let me tell you that the materials we are talking 6

about aren't materials that would increase the risk to the 7

public.

We are talking about materials that are similar in 8

nature to the wastes already in the tailings impoundments.

9 NMA believes that facilitating such disposal is 10 consistent with sound public policy and the goal of 11' optimizing protection of public health, safety and the 12 environment, 13 Given the current shortage of disposal capacity 14 for low level radioactive materials, difficulties involved 15 with siting new facilities, and the conservative UMTRCA 16 requirements that protect public health and environment, it 17 makes sense to allow such disposal.

And NRC has recognized l

18 that uranium mill tailings may potentially be a solution for 19 radioactive waste disposal in Direction Setting Issue 9, 20 Option 7 of its Strategic Assessment.

21 We believe that DOE should not have a problem 22 accepting title to sites with such material.

While UMTRCA 23 only requires DOE to take 11e.2 byproduct material, the 24 Nuclear Waste Policy Act authorizes DOE to take title to and 25 custody of low level waste under certain conditions that we JET RILEY & ASSOCIATES, LTD.

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-1 believe UMTRCA and the regulations thereunder satisfy by 2-definition.

1 3

As to duplicative regulation by EPA, UMTRCA's 4

statutory scheme provides for EPA-NRC dual jurisdiction in a 5

variety of circumstances, so we don't think that dual l.

6 jurisdiction poses a new problem here.

And we think that 7

duplicative regulation with EPA or the states is something 8

that can be worked out, maybe memorandums of understandings, 9

maybe legislation.

There might be solutions out there, and 10 we think that this is an areas where perhaps being creative 11 can be helpful, and it just makes a lot of sense to allow 12 this type of disposal.

13 CHAIRMAN JACKSON:

Let me ask you a question.

As 14 far as I understand, the staff's guidance doesn't preclude 15 i

16 MS. SWEENEY:

No.

17 CHAIRMAN JACKSON:

-- the' disposal of the 18 materials, i

19 MS. SWEENEY:

It just makes --

20 CHAIRMAN JACKSON:

-- it just says that there 21 should be special reviews done?

22 MS. SWERNEY:

Correct.

23-CHAIRMAN JACKSON:

So is it that -- is your l

-24 objection then to having the special reviews done?

[*

25 MS. SWEENEY:

Of special nuclear material?

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CHAIRMAN JACKSON:

Yes.

2 MS. SWEENEY:

No.

We don't object to that.

As a 3

matter of fact, in the White Paper, we wrote that perhaps 4

for special nuclear material that there would have to be a 5

new framework set up.

But once that -- you know, there 6

might have to be certain criteria that would have to be met 7

before you could dispose of special nuclear material in the 8

pile.

But we think if that f rame'aork was in place, then we 9

wouldn't have to have an individual review each time that 10 you wanted to place special nuclear material in the pile, 11 you would just have to have met those specific new criteria.

12 CHAIRMAN JACKSON:

Please.

13 COMMISSIONER McGAFFIGAN:

I think you said 14 something to the effect that DOE can take possession under 15 the Low Level Waste Policy Act of this material and it is 16 similar to the material that is at UMTRCA.

But do you end l

17 up in a situation where the site, having accepted this 18 material, essentially, is both a low level waste site and 19 comes under that regulatory scheme, and -- I mean if you are 20 DOE, you know have -- you have a low level waste site and 21 you have a -- which DOE currently self-regulates, if it's a 22 DOE low level waste site, but you -- and a uranium mill 23 tailings site, and you will end up with a very complex 24 regul.atory frawework?

25 MS. SWEENEY:

I --

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1 COMMISSIONER McGAFFIGAN:

Go ahead.

~2 MS. SWEENEY:

I was going to say, no, I don't O

3 think~so.

The UMTRCA program has a much larger horizon of 4

time'that it covers.

It is more protective than the Low I.

5,,

Level. Waste Program,'uo I believe that DOE could follow the f

^6 UMTROA requirements.

]

7 COMMISSIONER McGAFFIGAN:

And just say that by --

~

8 MS. SWEENEY:

That by following those they are

[37

~9:

meeting the low level waste.

j r>

10' COMMISSIONER McGAFFIGAN:

Low level waste.

So-l-

11 there~is nothing additional?

The'one regime trumps the 12.

other.and anything~the other requires is already met.by the r

}

13 UMTRCA,'that's --

14 MR. THOMPSON:

I think you could address that

'15 issue,'and you probably should address that issue if you are-16 going to try'to create alternate criteria.

The issue has 17 been somewhat addressed, for example, with respect to the i

18 Envirocare 11e.2' facility, in which initially there was some 19 question about'whether there would have to be sort of a dual 20 Part 61-Part 40 license and, basically, they said, no, this

. \\'

f I

,is 11e.2, it will be under Part 40, however, you are goina 1

21 Y

L y

22 to have to comply with some Part 61 record keeping 6a 1

23

' requirements.

{

12 4 So to the extent that there -- and waste forta, for 25.

Lexample, is more important in -- at least in Part 61

)

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because, in Part 4C, if you are talking about an operating 2

mill, you have got liquid in it, and you don't have liquid 3

in the waste that is going to a Part 61 facility.

But those 4

are kinds of issues that could be addressed, and it seemed 5

to me that URC could include some provisions that they felt 6

were relevant in Part 61 that would be applicable to the 7

disposal of any such material as part of the generic 8

criteria.

There could be a waiver of cettain Part 61 P

9 requirements, a generic waiver based on certain 10 requirements.

And I think we suggest that in the comment.

11 CHAIRMAN JACKSON:

Have you ever petitioned the 12 NRC for rulemaking?

13 MR. THOMPSON:

Have I evar?

14 CHAIRMAN JACKSON:

Yes, on these particular 15 issues.

16 MR. 7EOMPSON:

No.

No, in fact, wt the 17 question was whether -- should we petition for rulemaking on 18 these issues?

And the answer, essentially, was we knew that 19 NRC was possibly going to be looking at some of the issues 20 in conjunction with Part 41.

Also, again, this is an issue 21 that is just coming to maturity in some ways now, because 22 what we are really talking about in a lot of respects is a 23 lot of high volume wastes that are simply unlikely to go to 24 a compact site just because of the cost, if for no other i

25 reaaon.

Where you are talking about hundreds of dollars a ANN RILEY & ASSOCIATES, LTD.

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cubic foot and we are talking about thousands of tons of 2

naterial.

So we had just, really, in the last year begun 3

discussions, that is, the NMA did, with members of the Fuel 4

Cycle Facility Forum.

And so these issues are still, I 5

would say, in the opening phases of consideration and that's 6

the way we proffer them.

We don't necessarily suggest we 7

have all the answers, but we think they might ought to be 8

looked at.

9 CHAIR!GN JACKSON:

Well, Commissioner Dicus, then 10 Commissioner McGaffigan.

11 COMMISSIONER DICUS:

Have you discussed this issue 12 with, for example,.the Low Level F.adioactive Waste Forum or 13 with compacts as to whether or not any changes that we might 14 make i cur criteria create problems or take away problems 15

with, articularly, states that are in the process of either 16 trying to license a new site or those states that are still 17 in the process?

I would just be interested to know if this 18 creates a problem.

I 19 MR. THOMPSON:

I think we are too preliminary.

We 20 are just raising the issues.

I mean I think that there have 21 been active discussions amongst our group in the Fuel Cycle 22 Facility Forum licensees that if they were to petition for 23 rulemaking, and that has been discusced, that they would 24 need to go and talk to the compacts and the state regulators 25 as well.

And there is an awareness that that would have to I

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be something that would be addressed.

2 COMMISSIONER McGAFFIGAN:

And my question ~directly

~

i 3

follows Commissioner Dicus',

'Ihe;other interested party in i

4; this may be DOE,'not just from a regulatory perspective,'but i

I 5.

if somebody has large volumes'of low activity waste lying.

i 6'

around at various places, it is the Department of' Energy n

7 itself.

Have you talked to them about whether, you know, in

(

t 8

their environmental management mode, they.would be i

9 interested in these sorts of schemes?

I mean the sort ot i

10 MR. THOMPSON:

Not directly~.

.But, certainly, that'

[

s 11 has~also been discussed, because, in' conjunction with the 12 potentialfthat DOE may be ultimately, or - sonie' portions of

[

13

. DOS may be regulated by NRC, it'seemed to make some sense to 14 raise the issue, since by law these sites will in all i

f 15 likelihood, since no' state has. expressed an interest, be DOE 16-licensees anyway under the Mill Tailings Act.

i a ~

17 COMMISSIONER DIAZ:

Going back to the bottom line q

18 on this issue, you are really at' the present time just i

L 1

l*

19

.saying that the criteria need to be maybe simplified and 20, clarified for.use and'in other possible options, that is the

?

21 bottom line'on this?

i l

22 MS. SWEENEY:

Correct.

I 3

(

('~,-

23 COMMISSIONER DIAZ:

Okay.

t

'24 MS, SWEENEY:

And just to add to Tony's response 4j:

25 on Department of Energy, I know that there have been some m-I j

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folks' that I have talked-to just very casually about the 2,

idea at Department of Energy who have said that is something

.u

?3j that.'should be.considerad.

And, in fact, the National' 4

Mining Association submitted comments to DOE on its notice 5

of intent to' consider use of commercial = facilities for low

.6' level radioactive waste, and in addition to our comments, we 7

submittedJafcopy of the White Paper with those comments to 8'

highlight that issue.

So I think it is something that at "91

1 east some people at DOE are aware.of and are considering.

10' COMMISSICNER McGAFFIGANi.Could we get a copy of 11.

those. comments just to have in our system as well?

12 MS. SWEENEY:

Sure.

y

.,y 4..i 13 COMMISSIONER McGAFFIGAN:

Thank you.

Okay.

5 14 MR. THOMPSONi Actually, this fits rather nicely

[ ?) '

'15

'into the next topic, which is the alternate feed policy.

-l

' 16:

You have two tests now under the alternate feed policy, the 17 co-disposal test, which incorporates all'nine of the 18 requirements for the non-11e.2 disposal and therefore is, j

19 practically speaking, of'little use.

And then the 20 certification test which now appears to incorporate some

. c 21 sort'of economic analysis of whether or not the uranium 22 itrelf is in and of itself economically viable to process 23 the ore.

u 24 And it is the position of NMA, and embellished g9

' 25 upon in the IUC petition, that, basically, when they create j

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11e.2 byproduct material, Chairman Henry's testimony was to 2

modify the definition of byproduct material to include -- so 3

that there wouldn't be a waste stream escaping the 11e.2 4

designation.

That would include processing ores below the 5

.05 percent licensable level.

And that was designed in 6

order to assure there was no -- in other words, our view is 7

that the real focus is to make sure there is no regulatory 8

gap here, and there isn't a regulatory gap.

It isn't really 9

whether the economics of the production are based only on 10 the uranium.

In fact, NRC's policies for a long time have 11 recognized that that isn't necessarily the case because you 12 have the IUC mill and previously the energy fuels and Union 13 Carbide, when they owned that mill, were processing dual 14 streams of vanadium and uranium.

15 There are other facilities -- and the point is 16 that the word primary, and in NRC's own language, which we 9

17 quote in the IUC petition, the word primary is to 18 distinguish from secondary uranium recovery facilities, a 19 molybdenum or a copper facility that is taking off, you 20 know, lead, zinc, whatever, perhaps uranium, because it 21 isn't their primary purpose.

Their uranium recovery may be 22 licensed under a source material license, but it doesn't

. 23 turn all the tailings and the mill and everything else into 24 11e.2 byproduct material.

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of waste disposal, For example, there is an amendment 2

before the staff now to take some FUS wrap materials, which 3

DOE has classified as essentially byproduct material, and to 4

do it at loss cost than other options that have been quoted.

5 At the same time, to be able to take out whatever valuable 6

components, in terms of source material, are in that 7

material.

And so this is an example of a way in which --

8 this was formerly DOE, now corps of Engineers, but some DOE 9

wastes can be disposed af ter you process them, recycle them 10 to get whatever value there is, and then dispose of them in 11 the tailings.

It is not escaping regulation.

12 CHAIRMAN JACKSON:

So you think that the staff's 13 concerns about sham disposals are unfounded?

14 MR.' THOMPSON:

Yes, we do.

We think that, 15-basically, -- I mean there was an opinion in a case where 16 the judge said we have to look at economics, but there was a 17 recent opinion where the judge said, well, what would be i

18 wrong with recovery valuable source material and lowering 19 the cost of disposal at the same time?

As long as you make 20 the basic assumption that uranium mill tailings facilities 21 are licensed as part of the fuel cycle and, therefore, the 22 primary purpose for processing materials that contain source 23 material is, by definition, to recover the source material 4

24 content.

There can be second side stream or secondary 25 recovery such as vanadium or tantalum or niobium or other

+

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1 things, but the materials become 11e.2, the wastes become 2

11e.2.

3 CRAIRMAN JACKSON:

Okay.

4 MR. THOMPSON:

And, _really, again, we are talking 5

here about materials that are similar to mill tailings, 6

large volume soil and rubble that just it's going to be hard 7

to send to a compact, and just direct disposal doesn't give 8

you the benefit of taking whatever value -- valuable 9

minerals are in there, whether it be just uranium or uranium 10 and some other things.

11 COMMISSIONER DICUS:

What technical assessments 12 have been made to demonstrate that the hazardous waste 13 components from a milling alternative feed, materials are 14 generically within the design parameters of conventional 15 uranium mill tailings disposal sites would not affect their 16 performance?

17 MR. THOMPSON:

Well, right now the Staff's policy 18 requires that you demonstrate that it doesn't centain a 19 listed -- that it isn't a listed hazardous waste, so that 20 you don't run into a mixed waste problem, but the Staff l

l 21 policy says that if it is, just the corrosivity, toxicity L

22 and those things, that recycling takes it out from under 23 RCRA.

24 Essentially you have RCRA requirements or the

'25 equivalent of RCRA requirements applied to mill tailings ANN RILEY & ASSOCIATUS, LTD.

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39 L1

facilities.anyway and you are really talking about hazardous L....

2; gmaterials and-groundwater.

The same RCRA standards that are

.t 3

. applicable to' surface. impoundments essentially are 4

L 4

applicable to.these facilities through the EPA and NRC i u n

L l5' regulations, so there is no gap there.

p" 6

We know that one of-the reasons they said mill 7'

tailings are to'be all waste-was that-they'knewithat it 1

8 contained heavy metals, hazardous constituents and they

'l v

l i

r l9, wanted to. cover it all, and that is why Congress for this

!+

l 10.

one subset of your licensees has made them responsible for L

.11-the nonradiological components.

l l

12.

Mill tailings, if you look at them physically, 1

l 13 radiologically.and hazardous, they are classic mixed waste,.

t l

14' but:NRC's interpretation, and which we cite in here in a 15.

memo from.Mr. Lohaus says that because it:is 11e.2 byproduct' 16' material it is not, by definition, mixed waste,.and DOE and

~

17 EPA-agree with him -- even though it has hazardous l

18 constituents that might otherwise make'it a mixed waste.

It-

. s 19 is because of that definition, and that is why we say these i

20 definitions are very important.

21 CHAIRMAN JACKSON:

I want you to repeat the

<22 question, because I thought,it was an interesting question.

(

23-COMMISSIONER DICUS:

Well, I am not sure.it's --

j' 24 CHAIRMAN JACKSON:

-- been answered.

L.

25 COMMISSIONER DICUS:

-- been answered either.

r i

i i

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'I am asking specifically technically assessments.

2 Have they been done --

'3

'!GL THOMPSON:

Yes.

4 COMMISSIONER DICUS:

or are you aware that they

)

5-have been done?'

6 MR. THOMPSON:

Yes.

7 COMMISSIONER DICUS:

Where?

81 MR. THOMPSON:

In conjunction with license 9

amendments, licensees have done detailed tests to determine 10l

. hether or not the naterials contain hazardous waste or w

11 hazardous materials and would have an adverse impact --

12 COMMISSIONER DICUS:

-- on the performance.

'13:

MR'. THOMPSON:

-- on the performanc'e.

In general, 14 the rules that EPA' created when they created the rules in an f

~

15:

engineering sense, made the assumption that they wouldn't 16 because they were' going to be subject to these RCRA 17 groundwater' standards anyway.

18 If you go back and look at the EPA, in 1983 they t

l 19 just incorporated the RCRA requirements in.

20 COMMISSIONER DICUS:

Are you aware of any of those 21 assessments that were done that found a problem with a 22 certain strange alternative feed?

23 MR. THOMPSON:

I am not aware of any but there i

24 were, I am sure they weren't granted.

To the extent that a

{

'25

. hazardous constituent is a problem, a listed hazardous ANN RILEY & ASSOCIATES, LTD.

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41 1

constituent, bringing dual jurisdiction, I think you could 2

set that aside and deal with that later, but I think the 3

assumption is now that for an alternate feed it has to meet 4

the requirements of RCRA that it be characteristic and that 5

there be recycling so it is no longer a hazardous concern.

6 I don't think there's ever been any real concern 7

expressed that I am aware of that any of the hazardous i

B constituents that typically go with alternate feeds are

{

i 9

going to adversely affect the performance of the mill 10 tailings cell.

If there were, I am sure that the Staff 11 wouldn't grant the amendment or if there were I am sure that 12 the licensee, certainly if they were raising it with their 13 counsel, their counsel would say don't put it in there if it 14 is going to impact the -- if you go beyond what is accessed 15 environmentally or EA or whatever, you can't put it in.

16 CHAIRMAN JACKSON:

Well, as far as you know, the 17 Staff explicitly considers the impact on the --

18 MR. THOMPSON:

Yes.

19 CHAIRMAN JACKSON:

And has an application filed 20 for the processing of alternative feed material ever been 21 denied by the Staff?

22 MR. THOMPSON:

You know, I can't answer that.

I 23 know that there have been --

24 CHAIRMAN JACKSON:

I think not.

25 MR. THOMPSON:

-- sort of withdrawn but --

i B

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CHAIRMAN JACKSON:

Okay.

I think not, and so I l

2 guess I am trying to get at what the fundamental issue is.

3 MR. THOMPSON:

The fundamental issue is I think l

oO that the. Commission's actual practice in addressing 5

applications is almost right where we are suggesting it 6

ought to beLexplicitly.

7 CHAIRMAN JACKSON:

But in practice there's --

8 MR. THOMPSON:

In practice, but for example the i

9 question comes.up when you are dealing with some FUSWRAP 10 material or perhaps some other DOE wastes or other wastes, 11 do we have to go through a full-scale process every. time to l

12 address it, and do we have to look at the economics of the L13 uranium alone and our answer is no.

L 14 COMMISSIONER McGAFFIGAN:

My sense is what they 15 are saying is delete the economic tests and have all the l

16 health and safety tests that we put them through in terms of I

17 justifying that this material, once it is processed, still 18 is similar to the material that is going to be in the l

r I

l L

19 tailings pile anyways, and so it is the economic tests that 20 you are suggesting that we delete while keeping all of the 21 health and safety tests.

t 22 MR. THOMPSONi That is one way of saying it, yes.

23 We think you are very close to the way we want it i

24

addressed, but we think a easy way to do it is to make that 25-assumption that we talked about.

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i 1

CHAIRMAN JACKSON:

Well, an easy way would be the 2

health and safety way -- is to focus on the health and 3

s,afety issues vis-a-vis the performance of the mill 4

tailings.

5 MR. THOMPSON:

Right, and we agree with that.

6 CHAIRMAN JACKSON:

All right.

7 MS. SWEENEY:

We have a few suggestions for j

8 changes necessary to institute the recommendations as a i

9 whole in the white paper.

10 The strategic reassessment will be required and ac 11 your letter yesterday to me stated, Chairman Jackson, that 12 seems to be a path that you are already on, and you are 13 going to be looking at these issues in conjunction with 14 Staff and the Staff is looking at rulemaking options and we 15 think'that changes in regulatory practices or regulations i

16 may be necessary, 17 We know that there are concerns about the 18 nonradiological, nonhazardous components of 11e.2 byproduct 19 material, and maybe there is need for some work in that 20 area.

21 Also, there might be, as we were discussing, with 22 the special nuclear material, maybe there is a need there to 23 find out -- to draw up some guidelines on what could and 24 could not go in the tailings pile for disposal.

We also believe that on the jurisdictional issues 25 l

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.1 that Commission directives would be' helpful.

We don't think 2

legislation is necessary but if that is.the path the NRC 3

would like to follow, we would certainly support it and we 4

woald'like to support any efforts in this area and will 5

continue to work with the Staff and the Commission to 6-

' proceed on these issues.

7 We just-have a few questions that we feel need to 8

be asked and they are questions that highlight the issues 9

that we talked about today, and we consider these common 10 sense questions and if we could go back to the beginning, 11 these are the kind of questions that we would like to ask

12 and we think that these kind of questions can help focus our 13 attention on the issues.

14 Does concurrent jurisdiction over nonradiological 15 component of 11e.2 byproduct material make sense, given how 16 it will interfere with site closure and license termination?

17 Does it make sense to treat the subsurface aspects 18 of'ISL mining differently than-conventional mining when the 19 processes are essentially similar?

20 Does it make sense to ignore the waste capacity of l.

21 mill tailings piles given the difficulty in siting new waste 22 disposal facilities?

-23 Does it make sense to create barriers to putting 24 other materials in taili'qs piles as long as risks to the 25 public do not increase?

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a 45 1

Does it make sense to create barriers to running-4 4

2 alternate feed through.the mill when such activity thakes

.,.i.

3.

both environmental'and economic sense?

4 The' answer to all these questions of course, in L.-

S our' opinion anyway,'is'no.

We believe NMA's white papar

.6 recommendations are legally sound, are good.public policy

[7

.and will' optimize the protection of public health and-

-8

. safety,-which is the primaryLmission of the Nuclear 9

. Regulatory Commission.

10 We thank you for your attention today and hope to 11 continue to. work with you on these issues.

12-CE'iKMAN JACKSON:

Let.me take you back to your 13 more comt.'n serise questions.

14 MS. SWEENEY:

Okay.

15 CHAIRMAN JACKSON:

tihere you say does it make 1

16 sense to ignore the waste capacity of mill tailings piles 17 given.the difficulty in siting new waste disposal j

'18 facilities, are you willing-to have your mill tailings piles 19 subject to the same regulatory, requirements as low-level a

. aste facilities?

.20 w

21 MS. SWEENEY:

I would have to ask my -- I think 22 there:are some NMA member companies who would, but I cannot 1

23.

answer for them individually, but I do believe that there 24' are some companies that would be' interested enough in 25 pursuing'that..

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CHAIRMAN JACKSON:

I mean given that there are low 2

level waste requirements, as well as ones that relate to 3

siting of them -- I am just only focusing on that one common 4

sense question --

n -

15' MS. SWEENEY:

Yes.

6 CHAIRMAN JACKSON:

-- that at the heart of it, you 7

seem to be suggesting that we adopt a policy that would de 8

facto allow you to create a low level waste disposal site 9

and therefore the question has to be addressed as to the 10 subjection of that given mill tailings site to low level 11 waste siting requirements and there are specific ones that 12 are in the low level waste -- in the Nuclear Waste Policy 13 Act, et cetera, and so this one is not -- and we talked t

14 about it and you --

15L MR. THOMPSON:

I think you would have to address 16 those issues and see which ones are relevant at a particular 17 site, and I think again that the focus here is on low level 18 waste that you could say are essentially similar --

l 1

19 MS. SWEENEY:

Similar.

i 20 MR. THOMPSON:

-- physically, chemically and i

21 radiologically to what is in there, so we are not talking 22 about all low level waste, clearly.

We are talking about a 23-

'very fine subset of low level waste.

24 CHAIRMAN JACKSON:

Commissioners?

25

[:N o r e s p o n s e. ]

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1 CHAIRMAN JACKSON:

Any further comments?

2 MR.. THOMPSON:

Thank you very much.

3

'MS. SWEENEY:

Thank you.

4 CHAIRMAN JACKSON:

Well, thank you very much.

5 I think it's been a helpful presentation.and as we 6 --

are considering our various reassessments'and the Staff 7

recommendations relative to that later on this year, 8

particularly relating to the regulation of uranium recovery 9

operations, your white paper will be useful to us.

10 Thank you very much for coming.

11 MS. SWEENEY:

Thank you.

12

[Whereupon, at 11:12 a.m.,

the briefing was 13

. concluded.]

14 15 16 17 18 j

19 20 21 22 23 24 25 a

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l CERTIFICATE This is to certify that the attached description of a meeting t

of the U.S. Nuclear Regulatory Commission entitled:

TITLE OF' MEETING:

BRIEFING BY NATIONAL MINING ASSOCIATION ON REGULATION OF THE URANIUM RECOVERY INDUSTRY PUBLIC MEETING i

PLACE OF MEETING:

Rockville, Maryland i

DATE OF MEETING:

Wednesday, June 17, 1998 was held as herein appears, is a true and accurate record of the meeting, and that this is the or.ginal transcript thereof taken stenographically by me, thereafter reduced to i

typewriting by me or under the direction of the court reporting company

?

?

h Transcriber:

Reporter:

Jon Hundley f

I i

e i

t

' M y,

+

Recommendationsjof

/

Coordinated Approach to l

Regulating the Uranium t

RecoveryIndustry:

A WhitePaper Presented by the NationalMining j

Association NRCSTRATEGICASSESSMENT AND REBASELININGINITIATIVE NMA's White Paper builds on NRC's strategic assessment concept White Paper is a request that NRC perform a a

strategic assessment of some key NRC positions taken regarding the uranium recovery industry Both Strategic Assessment and White Paper have same goal-- optimization of protection of public health, safety and the environment.

l l

1 i

WHITE PAPER RECOMMENDS COMMONSENSEAPPROA

~

These recommendations make sense - tliese recommendations will help NRC conduct a strategic reassessment of the uranium recovery program, and redesign a program that optimizes the protection of public health, safety and the environment.

Recommendations will assist NRC in instituting a legally sound program consistent with UMTRCA

(

NRCNEEDS TO REASSESS FOUR REGULATORYPOSITIONS:

m Jurisdiction of Non-Agreement States oy5r Non-Radiological Components of I le.2 l

Byproduct Material NRC Jurisdiction over In-Situ Leach Facilities Disposal of Non-11e.2 Byproduct Material in Tailings Impoundments l

NRC's Alternate Feed Policy J

2

RECONSIDERATIONNECESSARY BECAUSEPOSITIONSADOPTED ONAD HOCBASIS PL A-White Paper requests that NRC reconsider four positions it has taken at some point over the last 20 years, positions taken in response to specific questions and situations without regard to whether such ad hoc positions, taken together, actually work to achieve an efficient uranium recovery i

program and to optimize protection of public health, safety and the environment.

5 NRC's JURISDICTIONAL POSITIONS ARENOT CONSISTENT WI CONGRESSIONAL INTENT OibTHE' AEA AS AMENDED These Positions are not Compatible with the Modern Uranium Recovery Industry Evolution ofIndustry has Brought Jurisdictional Problems More Into Focus 6

j 3

JURISDICTION OFNON-AGREEMENTSTATES OVER RADIOLOGICAL COMPONEN '

11E.2 BYPE3DUCTMATERIAL OELD Opinion is Legally Unsound

- Focus Of UMTRCA on Radiological Hazards

- State Regulation of NORM

- Authority of Non-Agreement States to Assume Custody over 1le.2 Material

- Savings Clause of the AEA 7

EXAMPLES OFPROBLEMS WITH THE CONCURRENTJURISDICTION POSITION

• N Potential for Perpetual License DOE May Be Reluctant to Accept Title Potential Need for New License

• Non-agreement States More Authority than Agreement States 4

4

l l

NMA RECOMMENDATIONa,

a-The Commission must reevaluate the cudrerit l

de facto policy being applied by its staff and to affirmatively assert, and ifnecessary, vigorously defend, federal preemption of non-Agreement State regulation of all aspects of 1le.2 byproduct material.

9 NRC'S OELD OPINION ONISL MININGIS FLA WED w

w j

NRC May Regulate Only those Materials Within the Jurisdiction of the AEA Wel' field Materials do not Constitute Source Material NEPA Provides no Supplemental Jurisdiction EPA Already Regulates the Underground Activities at ISL Wellfields

.. ~, ~

5

EXAMPLE OFPROBLEM WITH POSITION ONISL JURISDICTION NRC's Liquid Effluent Guidance Effluent at ISL Facilities NRC's Requirements for Effluent Disposal 11 NMA RECOMMENDATIONS 1-NRC Must Develop a Logical, Consistent and Predictable Regulatory Approach NRC Should Renounce Jurisdiction Over ISL Wellfields Until the Pregnant Lixiviant l

Reaches the Elution Stage at the Mill l

12 6

1

1 l

~

NRCNON11E.2 DISPOSAL GUIDANCEIS TOO RESTRIC, Too Many Criteria must be Met Prior to Disposal of Such Material Guidance Makes Actual Disposal of Such Material Extremely Difficult Even When Risks Posed are

)

~

No Greater Facilitating Such Disposal is Consistent with l

Sound Public Policy and with the Goal of Optimizing Protection of Public Health, Safety and the Enviromnent 13 i

NMA RECOMMENDATI NRC Should Revise the 1995 Guidance to MN e the Policy Less Restrictive NRC Must Explore Allowing the Disposal of 1

NORM, Mixed Wastes, SNM and Even 1le.1 Material if They are Similar to Uranium Mill Tailings

~

~ Creative Approach May be Needed --i.e.,

State / Interagency MOUs or Legislation 14 7

l

4 NRC'S ALTERNATE FEED POLICY IS TOORESIRICTIVE, -

It Can Be Presumed that Materials Processed in a Licensed Uranium Mill are Being Processed Primarily for Their Source Material Content Economics of a Processing Transaction Should Be of No Concern to NRC Facilitating the Use of Alternate Feed at Uranium Mills Produces Substantial Benedts l

i NMA RECOMMENDATIONS,,.

r NRC Must Reconsider the Standard for i

Demonstrating the Ore is Processed Primarily for I

its Source Material Content i

NRC Should Not Focus on Economics in l

Determining Whether to Approve Alternate Feed Applications l

l l

16 i

8

CHANGESNECESSARY TO INSTITUTE. RECOMMENDATIONS Strategic Reassessment will be Required Changes i.n Regulatory Practices or Regulations may be Necessary (i.e., perhaps to address nonradiological, nonhazardous components of 11e2 byproduct material or to outline which materials may be accepted for disposal in a tailings pile)

• Commission Directives must be Issued 17 COMMONSENSE NEEDED ON THESEISSUES

• Quest. ions need to be asked

- Does concurrent jurisdiction over the nonradio',ical component of Ile 2 byproduct material rr '

.nse, given how it will interfere with site closu und license termination?

- Does it make sense to treat the subsurface aspects of ISL mining differently'than conventional mining, when the processes are essentially similar?

18 9

l COMMONSENSE CON'T Q

More Common Sense Questions:

- Does it make sense to ignore the waste capacity of mill tailings piles given the difficulty in siting new waste disposal facilities?

- Does it make sense to create barriers to putting other materials in tailings piles as long as risks to the public do not increase?

- Does it make sense to create barriers to running altemate feed through a mill when such activity makes both environmental and economic sense?

19 4

Conclusion i

These Questions Highlight the Issues-Have Raised Today -- The Answer to All the Ouestions is NO NMA's White Paper Recommendations are Legally Sound, are Good Public Policy and Will Optomize the Protection of Public Health and Safety, Which is the Primary Mission of NRC 20 10