ML20205R790
| ML20205R790 | |
| Person / Time | |
|---|---|
| Issue date: | 04/08/1999 |
| From: | Travers W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| References | |
| SECY-99-012, SECY-99-012-01, SECY-99-012-R, SECY-99-12, SECY-99-12-1, SECY-99-12-R, NUDOCS 9904230322 | |
| Download: ML20205R790 (182) | |
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s POLICY ISSUE (Notation Vote)
April 8.1999 SECY-99-012 FOR:
The Commissioners FROM:
William D. Travers Executive Director for Operations
SUBJECT:
USE OF URANIUM MILL TAILINGS IMPOUNDMENTS FOR THE DISPOSAL OF WASTE OTHER THAN 11e.(2) BYPRODUCT MATERIAL AND REVIEWS OF APPLICATIONS TO PROCESS MATERIAL OTHER THAN NATURAL URANIUM ORES PURPOSE:
To obtain Commission approval of the staff's approach to address concerns raised by the uranium recovery industry on: (1) the use of uranium mill tailings impoundments for the disposal of wastes other than 11e.(2) byproduct material: and (2) the staff's review of mill licensee applications to process material other than natural uranium ores.
SUMMARY
In September 1995, the staff issued guidance on: (1) the disposal of material other than Atomic Energy Act of 1954, as amended (AEA) 11e.(2) byproduct material in uranium mill tailings impoundments; and (2) the processing of material other than natural uranium ores (hereinafter,
,/
" alternate feed material") at uranium mills. Both of these guidance documents are provided in
///,. The uranium recovery industry has raised concerns about this guidance. In this
/
paper, the staff discusses the industry's concerns and provides recommendations to the Commission on ways to address the issues raised.
!ll CONTACT: C. E. Abrams, NMSS/DWM (301) 415-7238
The Commissioners 2
BACKGROUND:
I Over the past several years, the staff has been engaged in discussions with the uranium recovery industry on a number of issues related to the regulation of uranium recovery facilities.
)
The industry considers the current staff guidance on the potential for using the available l
capacity at existing uranium mill tailings impoundments for the disposal of material other than 11e.(2) byproduct material' in mill tailings impoundments to be overly restrictive. It is the industry's view that: (1) this disposal capacity should be used to accelerate the cleanup of contaminated sites; and (2) any such disposal should pose no additional hazards to public l
health and safety or the environment because the long-term design requirements for the tailings impoundments are the same as, or more stringent than, those applied to hazardous waste cells or low-level waste (LLW) disposal cells.
The industry also believes that some material from contaminated sites contains enough uranium to make it worth processing through an operating uranium mill, and that the current staff guidance on the processing of attemate feed material should not include financial considerations in determining if such processing is acceptable. The industry's views of these issues are 1
discussed in the report, " Recommendations for a Coordinated Approach to Regulating the Uranium Recovery Industry" (hereafter, White Paper), submitted to the Commission in April 1998 by the National Mining Association (NMA) on behalf of the uranium producers it represents.
Prior to submittal of the White Paper and consistent with Direction Setting Issue 9 (Option 7)
[ Staff Requirements Memorandum (SRM) dated March 31,1997; Attachment 2], the staff has been exploring ways to use mill tailings impoundments as possible disposal cells for material from other contaminated sites. This Commission paper presents a detailed discussion of the issues, NMA's position with respect to the issues, and the staff's recommendations on ways for addressing industry's concems.
DISCUSSION:
Disposal of Material Other Than 11e.(2) Bvoroduct Material
'In September 1995, the staff published final guidance that prwides criteria by which the staff would evaluate applications from uranium mill licensees to dispose of material other than AEA 11e.(2) byproduct material in tailings impoundments (Attachment 1). This guidance identifies 10 criteria that licensees could use to justify that the U.S. Nuclear Regulatory Commission (NRC) authorize such disposal. As noted in Criterion 1 of the 1995 guidance, the type of material that would be acceptable for disposal in mill tailings impoundments would have
' The definition of 11e.(2) byproduct material comes from Section 11e.(2) of the Atomic Energy Act of 1954, as amended, which states that it is the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content. Material other than 11e.(2) material that is discussed in this paper as acceptable for disposal in mill tailings impoundments is material with radiological characteristics comparable to 11e.(2) (e.g., soil contaminated with primordial elements such as uranium and thorium and their progeny, including materials such as NORM), and does not include fission and activation products or transuranic wastes.
O b
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radiological characteristics comparable to those of 11e.(2) byproduct material. This limits the type of material that could be placed in tailings impoundments to mainly soil contaminated with primordial elements (uranium and thorium) and their progeny. Fission and activation products, as well as transuranic wastes, are not permitted for disposal under the guidance.
Under the current guidance,' material not regulated under the AEA of 1954 would be excluded from disposal in mill tailings impoundments. Also excluded is material that is subject to applicable Resource Consen Jon and Recovery Act (RCRA) or Toxic Substance Control Act (TSCA) regulations or other U.S. Environmental Protection Agency (EPA) standards for hazardous material and material for which there are Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) related issues. In addition, the placement of all material other than 11e.(2) byproduct material in the tailings impoundment must meet the approval of the Regional Low-Level Waste (LLW) Compacts in which the material originates and in which the disposal site is located.
The uranium recovery industry believes that criteria prohibiting non-AEA, RCRA, TSCA, and CERCLA materials are overly restrictive and essentially preclude the use of tailings impoundments for disposal of material other than 11e.(2) byproduct material. The industry believes that mills should be allowed to accept these materials for disposal in addition to some special nuclear material, which is not allowed under Criterion 3 of the current guidance, absent compelling reasons to the contrary.2 Finally, the industry considers the requirement for approval from the regional LLW compacts in which the waste originated and where the tailings impoundment is located to be overly burdensome.
The primary purpose of the prohibitions in the current staff guidance is to reduce the potential for the regulation of the tailings impoundments by more than one regulatory agency. For example, the staff included a criterion precluding the disposal of radioactive material not covered by the AEA, because the disposal of radioactive material not covered by the AEA in the tailings impoundments could create dual regulation of the impoundments by NRC and the State. This l
would allow the State an opportunity to require changes to NRC-accepted final tailings stabilization and remediation plans. Unlike the concurrent jurisdictional situation for non-radiological components of 11e.(2) byproduct material, the radiological aspects are preemptively regulated solely by the Federal govemment (and Agreement States).
A similar situation exists for the disposal of hazardous material. Because mill tailings impoundments contain material that would otherwise be regulated under the Solid Waste Disposal Act (SWDA), Congress directed the EPA to develop standards for the non-radiological aspects of mill tailings regulation to be consistent with the SWDA requirements. In addition, in Section 275 of the AEA, Congress precluded any permitting of mill tailings disposal under the SWDA. The legislative history on the enactment of the Uranium Mill Tailings Radiation Control 2 The Industry's recommendations regarding disposal of material other than 11e.(2) byproduct material were presented in the NMA White Paper. The Industry believes mills should be allowed to accept low radioactivity wastes that are similar to uranium mill tailings in volume, radioactivity, and toxicity. Examples of such wastes include secondary process wastes generated during the capture of uranium in side stream recovery operations; sludges or residues generated during treatment of mine water containing suspended or dissolved source material; and naturally occurring radioactive material.
The Commissioners 4
Act of 1978 (UMTRCA) contains elements supporting the view that Congress intended that the dual regulation of these sites be avoided. Senator Randolph, during discussions on UMTRCA, stated that " Standards and requirements under the amendment (UMTRCA] will be implemented and enforced by the Commission through its permitting process." The Senator further stated that "...no Environmental Protection Agency permit could be required under these provisions or the Solid Waste Disposal Act." If NRC followed the industry's suggestions and allowed the disposal of SWDA material other than mill tailings in these impoundments, then it would be opening the site to regulation by both NRC and EPA or EPA authorized State. This could create a problem for the Federal agency, in this case, the U.S. Department of Energy (DOE), or State agency tasked with the long-term surveillance and care of the stabilized and remediated tailings impoundment on license termination.
As noted in the attached SECY 91-243 (Attachment 3), SECY 95-211 (Attachment 4), and the differing professional view [(DPV); Attachment 5), the guidance currently being used by the staff was developed in extensive consultation with DOE in its capacity as the anticipated long-term custodian for the majority, if not all, of the remediated tailings impoundments on license termination. During that consultation, DOE was particularly concemed that placing hazardous waste in mill tailings impoundments would open a site to the potential for perpetual dual regulation by either EPA or individual States, in addition to NRC.
Since the development of the original guidance, DOE has allowed the placement of TSCA waste in at least one 11e.(2) mill tailings impoundment. The TSCA waste was a mixe 1 waste comprised of 11e.(2) byproduct material and transformer oil that contained polychlorinated biphenyls (PCBs). In the completed licensing action, DOE allowed the NRC licensee to construc+ a second cell on top of its tailings impoundment for the disposal of TSCA waste. Also, DOE obtained from the licensee an increase in the long-term care funding to conduct additional ground-water monitoring required by the EPA permit, and a perpetual indemnification from the licensee to pay for any problems that could arise from the mixed-waste cell. Disposal of TSCA material was handled independently by DOE and, as such, DOE had the lead in determining if the disposal was acceptable. NRC had little involvement in agreeing to the resolution of the issues involved. DOE worked with a large degree of independence on these issues. NRC eventually accepted the proposal that the 11e.(2) material could be disposed of in this manner, but was not involved in the other permitting and negotiations undertaken by DOE.
Using this experience as a model, under any revisions to the disposal guidance, the permitting of material other than 11e.(2) in a tailings impoundment would require involvement and approval from DOE, or the long-term custodian, before disposal. The particulars worked out by the long-term custodian and the current licensee would be handled by those parties and any other regulatory agency involved. The guidance currently contains a criterion requiring DOE approval before NRC would authorize such disposals. The staff would propose that this criterion remain in any revision to the disposal guidance. Under these circumstances, the staff believes there may not be the need to engage in the same level or extensiveness of consultations with DOE as was held when the guidance was initially promulgated. If those parties could not reach agreement, then the licensee would fail to meet one of the criteria for NRC accepting an application for such disposal. The staff would emphasize that, absent legislative change, this L
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approach would reintroduce the likelihood of multiple regulation by EPA, the States, and NRC, which the current approach and the underlying design of UMTRCA sought to avoid.
In addition, if DOE agreed to take sites with material other than 11e.(2) byproduct material, DOE would be doing so under the provisions of Section 151(b) of the Nuclear Waste Policy Act (NWPA). As long as DOE is willing to take these sites under its NWPA authority, such transfer should not create any procedural problems. Essentially, the approach for transferring sites to DOE under Section 151(b) should be very similar to the process used to effect such transfers i
under UMTRCA. Therefore, procedurally there should be no difference from what is already addressed under UMTRCA.
Ootions:
Given the preceding discussion, the Commission could revisit these issues and the guidance it approved for publication in 1995. The staff has reviewed that guidance to examine ways to simplify the review process and resolve the industry's concems. Based on this review, the staff has identified three options to address issues related to the disposal capacity of mill tailings impoundments.
1.
Retain the staff ouidance in its current form. Under this option, material to be placed in tailings impoundments would continue to be limited to certain types of material regulated under the AEA. The staff would retain the prohibitions against the disposal of special nuclear material and 11e.(1) byproduct material (without compelling reasons to the contrary). In addition, licensees would continue to be required to demonstrate that the material proposed for disposal was not subject to RCRA, TSCA, or CERCLA regulation and the licensee would continue to be required to obtain approvals from the appropriate LLW compacts.
The principal advantage of this option is that NRC would remain the sole regulator of the radiological components of the 11e.(2) byproduct material disposed of in mill tailings impoundments. In addition, this approach remains consistent with the legislative framework goveming such disposal. This approach is also responsive to the LLW Forum, who by resolution adopted on February 12,1999, encouraged NRC not to change the criterion requiring approvals from the appropriate regional LLW compacts for disposal of material other than 11e.(2) byproduct material. However, cleanup of radioactively and chemically contaminated sites around the country would not be aided, because the use of the disposal capacity of mill tailings impoundments would remain constrained.
2.
Revise the staff ouidance to allow for more flexibility in usino the disposal capacity of mill tailinos imooundments. Under this option, the staff would modify its guidance by allowing the disposal of any material that was physically and chemically similar to the material j
already in the impoundment and that contained the primordial elements (uranium and/or thorium) and their progeny as the only radionuclides present. Like the existing guidance, the revised guidance would allow for the disposal of soils contaminated with source material and progeny. Fission and activation products, as well as transuranic waste, would still not be permitted for disposal. In addition, the prohibition against the disposal of special
o The Commissioners 6
nuclear material and 11e.(1) byproduct material without compelling reasons to the contrary would remain.
The staff would remove the prohibitions in the guidance against the disposal of non-AEA material, and of materials regulated under RCRA, TSCA, and CERLCA. Instead, the staff would rely on the concurrence and commitment of the long-term custodian to accept the site on license termination. Under this option, staff would issue a generic exemption to the i
requirements of 10 CFR Part 61. This would remove the need for individual exemptions for each proposed disposal.
I Finally, given the current situation in the LLW program wherein operating LLW disposal facilities are accepting waste from outside their regional compact, it may be possible to relax the criterion that a mill licensee obtain concurrence from the appropriate LLW compact. However, because the material that would be disposed of meets the definition of LLW, removing compact approval could lead to questions of jurisdiction and may not be desirable due to the associated litigation this may invite. This criterion was included in the guidance at the direction of the Commission (SRM dated September 20,1991; ); therefore, the staff is not prepared to remove the criterion without prior Commission approval. Similar to the placement of non-AEA and chemical wastes in mill tailings impoundments, the staff does not see a need to obtain agreement from the compacts if the long-term custodian were to agree to accept the disposal site for long-term care and custody with LLW in it. Such agreement may still be required under the Low-Level Radioactive Waste Policy Amendments Act of 1985, even if staff removed this criterion from its guidance.
The principal advantage of this option is that the staff's review process for proposals to dispose of material other than 11e.(2) byproduct material in mill tailings impoundments would be streamlined and less constrained (see as an example, draft revised guidance included as Attachment 7). As a result, the potential for material other than 11e.(2) byproduct material to be disposed in mill tailings impour.dments could be increased depending on the willingness of licensees and the long-term custodian to accept dual or multiple regulation. However, if licensees accept other material for disposal, staff resource needs may increase as dealings with other Federal and/or State regulatory agencies will also increase with regard to areas of mutual concern (e.g., the final design for the reclamation and long-term stabilization of the mill tailings), and the associated additional regulation could decrease the viability of this approach. As long as any other regulations impose requirements that are more stringent than those in Part 40, Appendix A, the staff would find this additional level of conservatism acceptable. If NRC requirements were found to be more conservative, then the staff would continue to follow these. In the revised guidance, staff would provide this level of discussion to clarify how more conservative requirements would be handled.
o l
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l l
3.
Seek Leaislative Chance with Reaard to the Tvoes of Materials to be Placed in a Tailinas Imooundment and under the Lono-Term Care of DOE Because Option 2 involves the regulation of the tailings impoundments by more than one regulatory agency should non-AEA materials be placed in the impoundment and would require that DOE assume the long-term care responsibility under UMTRCA for all such sites, a clarification from Congress through a legislative initiative to amend the UMTRCA may be desirable Under Option 3, staff would work with the Office of l
Congressional Affairs and the Office of the General Counsel (OGC) to develop a legislative l
package that would expand the types of material that can be disposed of in tailings impoundments without opening those sites to perpetual dual regulation by NRC, EPA, and potentially individual States. The legislative initiative would also be coordinated with the DOE.
The staff prefers Option 3. The bases for this preference are that this option would give Congressional certainty to the decision to expand the use of tailings impoundments, and simplify the NRC review process and also give licensees greater flexibility in the types of materials that could be disposed of in their tailings impoundments. Option 3 also offers a solution for exoanding the types of materials that can be placed in tailings impoundments, but avoids the likelihood of opening sites to regulation by multiple entities.
l Processina of Material Other Than Natural Ore I
in September 1995, the staff also issued final guidance for reviewing licensee requests to process altemate feed material (also found in Attachment 1). The guidance contains a criterion that requires mill licensees to demonstrate that they will be processing the attemate feed material primarity' for its source-material content. One method a licensee may use is to provide certification to this effect, supported by a justification based on either the high uranium content of l
the material, financial considerations, or other factors. The criterion that includes financial l
considerations to support the milling of attemate feed is based on an order from the Presiding Officer in a 1993 hearing (Attachment 8) involving the staff's approval of Umetco Minerals Corporation's (Umetco's) application to test attemate feed material for possible processing at its i
White Mesa mill near Blanding, Utah (current owner and operator is intemational Uranium Corporation).
l The 1993 hearing focused on one of the major issues raised by the State of Utah in its hearing request, which concemed the staffs reliance on an unsupported certification from Umetco that it would be processing the material primarily for its source-material content. As part of the 8 The requirement to find that the material was produced from processing "primarily for its source-material content" derives from the UMTRCA amendment to Section 83 of the AEA; therefore, the residuals from such processing are 11e.(2) byproduct material. UMTRCA added the definition of byproduct material that encompasses tailings from material processed primarily for its source-material content. The determination with regard to "primarily" is a statutory l
requirement.
I l
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business deal for the material in question, however, Umeteo would have received a fee for taking the material, thus making the deal profitable for Umetco when the revenues from the fee and the sale of the recovered uranium were combined. The State of Utah asserted that, in accepting a fee for the material, Umetco was operating, in fact, a LLW disposal facility, without prior approval from the appropriate regulatory authority, i.e., the State of Utah. In its petition, the State further argued that Umetco simply would be processing the materialin an attempt to change the material's legal definition from " low-level waste" to "11e.(2) byproduct material,"
thus effectively circumventing the State's regulations. The State of Utah called the processing of material simply to change its legal definition " sham" disposal.
Although the Presiding Officer did not grant the State's petition to overtum the staff's approval, he did discuss, in his order fin the Matter of Umetco Minerals Corooration; 37 NRC 267 (1993)]
(Attachment 8) his concems with the staff's review, including a need to examine the economic factors of a licensee's request to process alternate feed materials. He stated that this review of economics would help ensure that mill licensees were not trying to sidestep other licensing requirements by processing material simply to change its legal definition. To address this issue, the staff revised its then draft guidance to include an additional criterion that a licensee could use financial considerations in the supporting justification for processing alternate feed material 3
primarily for its source-material content. This additional criterion is one of three in the guidance.
The licensee can elect to use any one of the three to justify processing attemate feed material.
]
i However, the uranium recovery industry is concemed that NRC has stepped beyond its i
legislative authority by including financial considerations to support a licensee's request to i
process attemate feed material in assessing whether the material was processed primarily for its I
source-material content. A representative of the waste disposal industry, on the other hand, has expressed concems that the staff's economic test is insufficient to guard against processing solely to change the material's legal definition.
Using the 1995 guidance, the staff has reviewed and approved a total of seven applications from a single milllicensee to process attemate feed materials. In all cases, the licensee used financial consideration of the proposed action to justify that the material was being processed i
primarily to extract its uranium content although other means could have been used by the licensee to demonstrate that processing was primarily for the extraction of uranium. In another hearing request on a June 1998 amendment authorizing the processing of alternate feed, the State of Utah again asserted that material approved by NRC for processing at the White Mesa mill is being subject to " sham" disposal. In a February 9,1999, ruling on the State's petition (Attachment 9), the Presiding Officer's decision rejecting the State's position was based on language in the AEA, which defines byproduct meterial as "the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content." The Presiding Officer's ruling was that "primarily" does not refer to a test of motive or purpose, but to what is removed from the material being processed. Therefore, if source material is removed from alternate feed material in a uranium milling process, it meets the "primarily" test. The State of Utah has appealed this decision to the Commission.
To address this situation, the staff considers that Commission guidance on the Presiding Officer's 1993 Order is warranted. If the Commission believes that the 1993 order should be
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superseded and the staff should focus its review solely on the public health and safety aspects of applications to process attemate feed materials, then the staff could revise its guidance to eliminate any discussion about economics and consider the "primarily" test to determine the acceptability of an application to process alternate feed sufficient. This revised guidance would also be issued for public review and comment.
The revised guidance would also allow mill licensees to process altemate feed material without always obtaining prior NRC approval. Under this approach, licensees could request a performance-based license amendment authorizing processing of alternate feed material primarily for its source material content. The performance-based amendment would make individual amendments each time attemate feed material is to be processed unnecessary. The amended license would require the licensee to determine if the alternate feed material contains enough uranium to justify processing the material through the mill. This is what licensees currently do with natural ore. Since attemate feed would meet the definition of ore in the current and revised guidance, licensees would be given the same flexibility for processing attemate feed material as they currently have for natural ore. Mill licensees would have to document in writing the results of all analyses conducted under their licenses, and the staff would be able to review the adequacy of these evaluations during routine site inspections.
Any justification developed by the licensee would need to demonstrate that the material was processed primarily for its uranium content. Such a demonstration could be based on: (1) the concentration of uranium in the attemate feed material; (2) financial considerations (if the licensee chooses to use that basis); (3) a demonstration that the material can be disposed of directly in the tailings impoundment without further processing [and therefore truly is being processed for its source-material content]; or (4) any other basis of equivalent capability to make the demonstration. This justification is needed to ensure that the residuals from processing can be classified as 11e.(2) byproduct material for disposal into mill tailings impoundments. This issue may become moot if the legislation proposed earlier is enacted. Such legislation would allow for material other than 11e.(2) byproduct material to be disposed of in mill tailings impoundments. Another way this issue would be rendered moot is if the Commission were to uphold the Presiding Officer's decision that the definition of primarily is based on the removal of uranium from ore, and not related to the motive of a licensee in processing material. As such, the question of " sham" disposal would no longer be an issue.
For those instances in which a listed hazardous waste was present in a proposed feed material, licensees would be required to receive NRC approval to process such material if the licensee was not already approved to accept this type of materia!. The staff's approval would hinge on documentation of the long-term custodian's willingness to take the site on license termination. If the licensee had previous approvals to accept such materials, then the staff would expect to see, during its routine site inspections, documentation in the licensee's records of the long-term custodian's willingness to take the site.
As identified previously, Attachment 5 is a differing professional view [(DPV); as allowed under Management Directive (MD) 10.159)] on this recommendation, submitted by a staff member on November 19,1998. The DPV complements the analysis presented in this paper and offers a legislative proposal that might address the uranium recovery industry's concerns. The DPV was l
F l
i The Commissioners 10 I
reviewed under MD 10.159, and a DPV review panel report dated January 15,1999, is provided i
as Attachment 10. The DPV panel report contains eight recommendations on the disposal guidance and three on the altemate feed guidance. Information on these recommendations has been incorporated into this paper or into the revised guidance in Attachment 7.
RESOURCES:
i At this time, it is not possible to quantify the resource impacts associated with the staff's recommendations. To date, there have been no specific proposals from mill licensees to dispose of non-11e.(2) byproduct material. In addition, the staff has reviewed only seven applications to process attemate feed material and supported only three hearings on attemate j
feed material amendments over the past six years. It is possible that savings in staff resources l
resulting from revision and implementation of the current guidance documents (e.g., in review time and hearing support for attemate feed requests) could be offset by an increase in staff l
interactions with other Federal or State agencies resulting from increased licensee requests to i
dispose of non-11e.(2) byproduct material, and to process attemate feed materials.
Resources to modify the existing guidance in accordance with the recommendations are l
included in the current budget to develop the new proposed 10 CFR Part 41. The rulemaking l
plan for the proposed rule is before the Commission as SECY-99-011.
l l
RECOMMENDATIONS:
l That the Commission:
1)
Supersede the Presiding Officer's direction in Umetco Minerals Corooration [37 NRC 267 l
(1993));
l 2)
Approve the staff's recommendation to seek legislative change with regard to the types of materials to be disposed of in an 11e.(2) tailings impoundment. The proposed legislative change would allow disposal of non-AEA 11e.(2) byproduct material and hazardous materials; and 3)
Allow the staff to revise its current guidance on processing of attemate feed, as discussed in this paper.
If the Commission approves a rulemaking plan for a new Part 41 (SECY-99-011), these changes could be codified as part of that rulemaking.
l 1
V
3 m
The Commissioners 11 COORDINATION:
The Office of the General Counsel has reviewed this Commission Paper and has no legal objections. The Office of the Chief Financial Officer has reviewed this paper for resource implications and has no objection.
I A
1 WM rr n William D. Travers Executive Director j
for Operations Attachments:
- 1. September 1995 Non-11e.(2) Byproduct Material Disposal and Alternate Feed Guidance
- 2. SRM dated March 31,1997
- 3. SECY 91-243
- 4. SECY 95-211
- 5. DPV dated November 19,1998
- 6. SRM dated September 20,1991
- 7. Example Revised Non-11e.(2) Byproduct Material Disposal Guidance
- 8. Judge Gleason's April 12,1993, Order
- 9. Presiding Judge's decisio1, dated February 9,1999
- 10. Report of DPV review panel, dated January 15,1999 Commissioners' completed vote sheets / comments should be provided directly to the Office of the Secretary by COB Monday, June 21, 1999.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT June 14, 1999, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
DISTRIBUTION:
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3 Uranium Mill Facilities, Notic1 cf Tito
- 2. Radioactive material not regulated 1 The Department of Energy iDOE-G b uidance Documents: Fin 11 R; vised under the AEA shall not be authorized and the State in which the tailing Guidance en Disposal cf Non-At:mic for disposalin an 11eJ2) byproduct impoundment is located, should t>e Energy Act of 1954, Section 11e.(2) matenal impound nent-informed of the Nuclear Regula: ors Byproduct Material in Tailings 3 S ecial nuclear matenal and Commasion findings and proposed j
P impoundments; Final Position and Section 11ed1) byproduct material actton, with a reque st to concur wi rn 1
Guidance on the Use of Uranium Mill wute should not be considered a 120 da A concurrence and Feed Materials Other Than Natural candidates for disposal in a tailings commitment from either DOE or the Ores impmmiment. w:thout compelling State tu take title to the tailings reasons to the contrary. If staff believm impoundment after closure must be AGENCY: Nuclear Regulatory that such matenal should be disposed c: received before granting the hcense Commission.
in a tailings impoundrrent in a specific amendment to the 11e.(2) licet.see.
ACTION: Notice of final guidance, instance a request for approval by the
- 10. The mechanism to authorize tho Commission should be prepared.
disposal of non-11e.(2) byproduct
SUMMARY
- The U.S. Nuclear Regulatory
- 4. The 11e.(2) licensee must materialin a tailings impoundment in Commission has finalized two uranium demonstrate that the material is not an amendmert to the mill license under mill licensing guidance documents after subject to applicable Resource 10 CFR part 40, authorizing the receipt I
consideration of comments received in Conservation and Recovery Act (RCRA) of the material and its disposal.
I response to a request for public regulations or other U.S. Environmental Additionally, an exemption to the
)
comment in a Federal Register notice Protectior. Agency (EPA) standards for requirements of 10 CFR part 61. under i
published May 13,1992 (57 FR 20525).
hazardous or toxic wastes pnor to the authority of $ 61.6. must be grante d Only minor changes were made to the disposal. To further ensure that RCRA (If the tailings impoundment is located proposed guidance documents titled, hazardous waste is not inadvertently in an Agreement State with low level
" Revised Guidance on Disposal of Non-disposed of in mill tailings waste licensing authoritv. the State must Atomic Energy Act of 1954. Section impoundments, the 11e.(2) licensee also take appropriate action t'o exempt the 11e.(2) Byproduct Material in Tailings must demonstrate. for waste containinS Impoundments" and " Position and source matenal, as defined under the non-11e.(2) byproduct material from Guidance on the Use of Uranium Mill AEA, that the waste does not also regulation as low level waste ) The license amendment and the 4 61.6 Feed Materials Other Than Natural contain material classified as hazardous 1
Ores "
waste according to 40 CFR part 261. In exemption should be supported with 2 i
ADDRESSES: Copies of the comments and addition, the licensee must demonstrate staff analysis addressing the issues the NRC staff responses, as well as that the non 11e.(2) matenal does not discussed in this guidance.
SECY-91-243, can be examined at the contain material regulated under other Final Position and Guidance on the L.se Commission's Public Document Room Federal statutes, such as the Toxic of Uranium Mill Feed Matenal Other at 2120 L Street NW. (lower level),
Substances Control Act. Thus, source Than Natural Ores Washington DC.
material physically mixed with other Staff reviewing licensee requests to FOR FURTHER INFORMATION CONTACT:
matenah would require evaluation in process alternate feed material (material j
accordance with 40 CFR part 261, or 40 other than natural ore)in uram,um mills ra a et fegu ds U.S.
CFR part 761. (These provisions would should follow the guidance presented 3
cover material such as:
below. Besides reviewing to determine as ng on. I 2 5 5 t lep one (301) Characteristically hazardous waste; compliance with appropriate as ects of 415-6629-hsted hazardous waste: and appendix A of to CFR part 40.
e staff polychlorinated biphenyls.) The should also address the following SUPPLEMENTARY INFORMATION:
demonstration and testing should follow issues
^
d rotocols.
Final Revised Guidance on Disposal of '[fl e P
e (2 m st
- 2. Determination of Whether the feed Non-Atomic Energy Act of1954, demonstrate that there are no Materialis Ore Section 11e.(2) Byproduct Material in Taihngs Impoundments Comprehensive Environmental For the tailings and wastes from the Response. Compensation and Liability proposed processing to qualify as
- 1. In reviewing licensee requests for Act iwues related to the disposal of the 11e.(2) byproduct material, the feed the disposal of wastes that have non-11e.(2) byp)roduct material.
material must qualify as " ore." In radiological characteristics comparable
- 6. The 11e.(2 licensee must determining whether the feed material to those of Atomic Energy Act (AEA) of demonstrate that there will be no is ore, the following definition of ore 1954, Section 11e.(2) byproduct material significant environmentalimpact from must be used:
(hereafter designated as "11e.(2) disposing of this material.
Ore is a natural or native matter that byproduct material")in tailings
- 7. The 11e.(2) licensee must may be mined and treated for the impoundments, staff will follow the demonstrate that the proposed disposal extraction of any ofits constituents or guidance set forth below. Since mill v'.1 not compromise the reclamation of any other matter from which source tailings impoundments are already the tailings impoundment by materialis extracted in a licensed regulated under to CFR part 40 demonstrating compliance with the uranium or thorium mill.
licensing of the receipt and disposal of reclamation and closure criteria of such material [hereafter designated as appendix A of to CFR part 40.
- 2. Determination of Whether the Feed i
"non 11e.(2) byproduct material'"]
- 8. The 11e.(2) bcensee must provide M terial Contains Hazardous Waste i
should also be done under 10 CFR part documentation showing approval by the if the proposed feed material contams 40.
Regional Low-level Waste Compact in hazardous waste, listed under subpart D whose jurisdiction the waste originates SS 261.30-33 of 40 CFR (or comparable
{
" non.2:a.tal byproduct material as used here is as M as approval by the Compact in RCRA authorized State regulations), it sianply an saammpassing term for source special whose jun,smction the disposal site is wc uld be subject to EPA (or State) j oncl.nr. and s neat) bypmduct matenals.
located.
regulation under RCRA. To asoid the
Fed:ral Regist:r / Vol. 60, No.184 / Friday, September22, 1995 / Notices 49297 complIxiti s of NRC/ EPA du.1 regulati~on, such feed material will not certification. The justification can be be approved for processing at a licensed based on financial considerations, the deduction of a mortality and expense millif the licensee can show that the high uranium content of the feed risk charge from the assets of any other proposed feed material does not contain material, or other grounds. The separate accounts,(" Future Accounts")
established in the future by Golden a listed hazardous waste, this issue is determination that the proposed American in connection with the resolved.
processing is primarily for the source offering of the Future Contracts.
Feed material exhibiting only a material content must be made on a characteristic of hazardous waste case-specific basis.
FILING DATE:The application was filed (igrtitable, corrosive, reactive, toxic)
!!it can be determined, using the on May 11,1995, and amended on would not be regulated as hazardous aforementioned guidance, that the August 29.1995.
proposed feed material meets the HEARING OR NOTIFICADON OF HEARING:
waste and could therefore be approved definition of ore, that it will not order granting the application will be for recycling and extraction of source introduce a hazardous waste not issued unless the Commission orders a material. However, this does not apply otherwise exempted, and that the hearing. Interested persons may request to residues from water treatment, so acceptance of such residues as feed primary purpose ofits processing is for a hearing by writing to the Secretary of material will depend on their not its source-material content, the request the Commission and serving Applicants containing any hazardous or can be approved.
with a copy of the request, ersonally or by mail. Hearing requests s ould be Dated at Rockville, Maryland, this 13th day received by the Commission b ma ul wa (or St t f S'Ptember 1995.
before making a determination of For the Nuclear Regulatory Commission.
p.m. on October 10,1995, and should be I***P f. Holonich, accornpanied by proof of service on whether the feed material contains b
Apphcants m the form of an affidavit or, hazardous waste.
Chief.nigh4evel waste and Umnium for lawyers, a certificate of service.
- 3. Determination of Whether the Ore is RecoveryProjects Bmnch. Division of Waste Hearing requests should state the nature Being Processed Primarilyfor its Source. Management. Office ofNuclearMaterial of the requestor's interest, the reason for SafetyandSafeguards.
MaterialContent 95-2353t Filed 9-21-95: 8:45 aml the request, and the issues contested.
IFR Doc.
For the tailings and waste from the a m o coog m e w Persons may roquest notification of a proposed processing to qualify as hearing by writing to the Secretary of 11e.(2) byproduct material, the ore must the Commission.
be processed primarily for its source-SECURITIES AND EXCHANGE ADDRESSES: Secretary Securities and material content. There is concern that COMMISSION Exchange Commission,450 5th Street.
wastes that would have to be disposed NW., Washington, DC 20549.
of as radioactive or mixed waste would (Rel. No. lC..21362; No. 812-0602]
A plicants, c/o 'ditchell M. Cox, Esq..
P be proposed for processing at a uranium mill primarily to be able to dispose of Golden American Lifeinsurance Vice President Assistant Secretary and it in the tallings pile as 11e.(2)
Company, et al.
Associate General Counsel, Golden American Life Insurance Company, byproduct material. In determining September 15.1995 1001 Jefferson Avenue 4th Floor, whether the proposed processing is AGENCY: Securities and Exchange Wilmington, Delaware 19801.
primarily for the source-material Commission ("SEC" or " Commission"). FOR FURTHER INFORMATION CON content or for the disposal of waste, ACTION: Notice of Application for an Yvonne M. Hunold, Assistant Special either of the following tests can be used:
Counsel, or Patrice M. Pitts, Special
- a. Co-disposal test: Determine if the Order under the investment Company Counsel. OfSce of insurance Products feed material would be approved for Act of 1940 ("1940 Act").
(Division ofInvestment Management), at disposal in the tailings impoundment APPLICANTS: Golden American Life (202) 942-0670.
under the " Final Revised Guidance on Insurance Company (' Golden SUPPLEMENTARY INFORNATION: The Disposal of Non-Atomic Energy Act of American' ),
1954, Section 11e.(2) Byproduct I Account B, Separate Account B folleg in ary of b
) and Separate Account D application: the complete application is Material in Tailings impoundments " or E, Account D',-together with Account available for a fee from the Public revisions or replacements to that B,, Separate Accounts ),and Directed Reference Branch of the Commission.
guidance. If the material would be Sernces, Inc. ("DSI").
Applicants' Representation approved for disposal,it can be RELEVANT 1940 ACT SECDON: Order concluded that if a mill operator requested under Section 6(c) of the 1940
- 1. Golden American is a stock life proposes to rocess it, the processing is Act granting exemptions from Sections insurance company authorized to do primarily fo the source-material 12(b),26(a)(2) and 27(c)(2) thereof and business in all jurisdictions, except New content. The material would have to be Rule 12b-1 thereunder.
York. Golden American is a wholly-physically and chemically similar to
SUMMARY
OF APPLICATION: Applicants owned subsidiary of BT Variable, Inc.
11e.(2) byproduct material and not be subject to RCRA or other EPA seek an order permitting the deduction and a wholly-owned indirect subsidiary hazardous-waste regulations, as of mortality and expense risk charges, of Bankers Trust Company.
including an asset-based enhanced
- 2. The Separate Accounts were discussed in the guidance.
death benefit charge, from the assets of established by Golden American as
- b. Licensee certification and justification test:The licensee must the Separate Accounts in connection segregated asset accounts to fund certify under oath or affirmation that the with the offering of certain variable variable annuity contracts. Account B is feed materialis to be processed annuity contracts (" Contracts") and tegistered under the 1940 Act es a unit investment trust. Account D is primarily for the recovery of uranium certain other variable annuity contracts
(" Future Contracts") issued in the future registered under the 1940 Act as a non-and for no other primary purpose. The by Golden American that are materially diversified open.end management licensee must also justify, with reasonable documentation, the similar to the Contracts. Applicants also cornpany. Registration statements on Form N-4 and Form N-3, registering me request that the order permit the Contracts as securities under the
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UNITED STATES 8
NUCLEAR REGULATORY COMMISSION g
g WASHINGTON. O C 20555-0001 9
March 31, 1997 j'
$4 CMETARY t
MEMORANDUM TO:
L.
Joseph Callan Exe, i e Di ctor for# Operations FROM:
John Hoy W, ary 1
SUBJECT:
S FF REQUIREMENTS - COMSECY-96-058 -
DECO ISSIONING - NON REACTOR FACILITIES, (DSI8 9) t The Commission continues to support its preliminary views on this issue which, subject to<the Commission's modifications as set forth in the preliminar.y view, was the selection of a combinatwn of options including: (1) Change the Decommissioning Process (Option 2]; (2) Focus on Decommissioning Cases in which -
can be made (Option 6] ;! (3 ) Take an Aggressive Positic Develop Regulatory Frameworks for Lower Cost Decommis Waste Disposal Options ;[ Option 7; ; and (4)! Develop a Litigation Strategy [ Opt' ion 8).
In its preliminary views on this issue, the Commissic directed the staff to include in the pilot, program unt only those licensees who (1) volunteer forithe program the staff finds suitably for the pilot program.
The comm1 believes that thepilotjprogramshouldbe'designedtobec, of identifying those licensee attributes that are important deciding which licensees should be allowed to participate in the pilot program.
Specifically, the Commissi'on directs the staff to consider the following as potential criteria for making determinations on the snitability of a licensee for the pilot program.
First, the licensee should be technically capable and adequately funded and second, the licensee's site should be minimally contaminated ~ not complex, and uindergoing only routine decommissioning activities.
The staff should provide a status report on this effort b'y June 15, 1998 orisooner if circumstances warrant.
(SECYSuspehse:
(EDO) 6/15/98)
Thestaffshouldsponso'raworkshopincohnectionwiththepilot program to make sure th!at candidates for the pilot program know what NRC expects of thej licensees. The Commission's preliminary i
view had further guidance on this matter.]
(EDO)
(SECv Suspehse:
3/31/98) f h
i The staff should continue to evaluate anyhnew and different g
i f]
i ge M" *'i 1
MyM un
i
.a 0 approaches t the decommissioning review process as they are One such process is to adopt an approach tha*
presented.
requires a decommissioning plan with supporting data and information that is! commensurate withithe complexity and risk The Commission associatedwiththejsitetobedecommissioned.
further directs the; staf f to consider how implementation of this simplified review process could also enhance the review process for routine sites being decommissioned other than SDMP sites.
(EDO) 52 (SECY Suspense:
9/30/97)
Regarding Options 4'and 9, the Commission does not believe that the Superfund appro'ach would be an effective tool for the NRC to oversee decommissioning activities.
With regard to Option 6, the Commission believes that referral to EPA should be a last resort, shoula be approved by the Commission, and should be used only in those circumstances where EPA agrees that the remedies that it will bring to bear have a higher probability of success in terms of achieving cleanup.
Finally, the SRM on DSI 21 addresses the fact that many NRC costs for site decommissioning management plan activities are not recoverable under Part 170 fees, and as such, the NRC should to move these costs outside the fee base to a direct attempt appropriation.
Chairman JacNson cc:
Commissioner Rogers commissioner.Dieus Commissioner McGaffigan Commissioner Diaz K.
Cyr D. Rat hbun H. Bell A. Galante R. Scroggins W. Beecher 4af il l '
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((MI wi POLICY ISSUE (NEGATIVE CONSENT)
August 7, 1991 SECY-91-243 For:
The Consnissioners From:
James M. Tay1cr Executive D1 rector for Operations
Subject:
DISPOSAL OF MATERIAL OTHER THAN ATOMIC ENERGY ACT OF 1954, AS AMENDED, SECTION 11e.(2) BYPRODUCT MATERIAL INTO URANIUM MILL TAILINGS IMPOUNDMENTS
Purpose:
To inform the Commission of the staff's approach for responding to applicant requests to dispose of material other than Atomic Energy Act (AEA), of 1954, as amended, Section 11e.(2) byproduct material [hereafter designated as "non-11e.(2) byproduct material") in uranium mill tailings impoundments and to obtain Commission approval of a memorandum to Region IV implementing the revised policy guidance on this subject.
Background:
The Uranium Mill Tailings Radiation Control Act of 1978 amended Section 11e. of the AEA to include specifically as byproduct material "...the tailings nr wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content."
For the purposes of this paper, these tailings or wastes, as defined in Section 11e.(2) of the AEA, will be designated as "11e.(2) byproduct material."
Over the past several years, the Nuclear Regulatory Commission (NRC) and Agreement States have received requests for the disposal of radioactive waste materials other than 11e.(2) byproduct material into the tailings impoundments of NOTE:
Contact:
TO BE MADE PUBLICLY AVAILABLE Myron H. Fliegel, NMSS UHE!i TEE FINAL SRM IS MADE 492-0555 AVAILABLE WSSS$$SSSSSY
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The Commissioners 2
licensed uranium milling operations.
The non-11e.(2) l byproduct material that has been considered for co-disposal at uranium mill tailings sites has included source, byproduct [as defined in Section 11e.(1) of the AEA and hereafter designated as " byproduct material"], and special nuclear material (SNM), as well as naturally-occurring radioactive material.
These radioactive wastes have had similar characteristics to 11e.(2) byproduct material with low specific activity and long half-lives.
Examples of these non-11e.(2) byproduct material wastes include mine-water cleanup residues and tailings resulting from a rare-earth operation containing source material.
In the past, uranium mills have occasionally disposed of small quantities of non-11e.(2) byproduct material in tailings either under the conditions of their existing license or after NRC staff approval of a specific license amendment request under 10 CFR Part 40 or Agreement State compatible regulations.
The NRC staff approved these disposals because the quantities were negligible in comparison to the quantity of mill tailings.
As these requests for disposal became more frequent, the NRC staff developed specific policy guidance in 1988 (Enclosure 1) for addressing these requests.
In the guidance, the staff concluded that NRC should not allow the disposal of naturally-occurring and accelerator-produced radioactive materials (NARM) wastes in tailings impoundments.
Staff continues to believe this position with respect to NARM disposal is appropriate, but will revisit it if the need arises.
The guidance allows the NRC staff to approve, on a case-specific basis, the disposal of non-11e.(2) byproduct material generated by operations regulated under the AEA, into tailings impoundments, if the following four conditions are met:
1.
The disposal will have no significant additional effects on public health and safety, and the environment.
2.
The disposal will not compromise the reclamation of the impoundment.
In effect, the disposal must comply with the reclamation and closure criteria in 10 CFR Part 40, Appendix A.
3.
l The disposal will not result in the tailings impoundment becoming subject to the Resource Conservation and Recovery Act (RCRA) or Comprehensive Environmental Response, Compensation and Liability l
Act.
4 The U.S. Department of Energy (DOE) or the State agrees to take title to the site upon completion of the reclamation.
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The Connissioners 3
In regard to the fourth condition, DOE has indicated, in letters of November 16, 1990, and December 24 1990 that it would not object if NRC approved transfer o,f a re, mediated commercial milling site to DOE containing NARM and other low-activity non-11e.(2) byproduct materials, in accordance with Section 83 of the AEA (Enclosure 2).DOE stated that if NRC can make a finding that DOE will not incur any cost associated with these wastes, specifically that there would be no adverse environmental effect or outstanding compliance issue under any environmental law (for exam NRC could authorize disposal of non-11e.(2)ple, RCRA), then in a uranium mill tailings impoundment.
byproduct material DOE further responded in a January 23, 1991, letter (Enclosure 3) to five specific questions NRC staff had raised on acceptable quantities and concentrations of several categories of non-11e.(2) byproduct material.
DOE's response included considerations that NRC would have to address in determining such acceptability. The findings and considerations discussed in the DOE letters of November 16, 1990, and Janu0ry 23,1991, are encompassed by the first three demonstratior.; required under the current staff guidance discussed above. Thus, demonstration of those three findings will result in the fourth (DOE's agreement to take title to the tailings impoundment) finding being met.
However, to reduce the potential of future problems with transfer to DOE, NRC will notify DOE (with an opportunity to provide comments) of each impending decision to allow non-11e.(2) byproduct material disposal in a tailings impoundment.
NRC believes that DOE also has authority for low-level waste disposal site ownership under Section 151.(b) of the Nuclear Waste Policy Act of 1982.
Discussion:
A major issue that the staff considered is the types of wastes that would be allowed to be disposed of in tailings impoundments.
Current staff policy is to consider, on a case-specific basis, wastes generated by operations regulated under the AEA.
This would allow consideration of byproduct material and SNM, in addition to source material.
The non-11e.(2) byproduct materials proposed for co-disposal in a uranium mill tailings impoundment have, thus far, consisted primarily of source material, but there have been instances where contaminated soils containing low levels of byproduct material and SNM (such as from spills at fuel fabrication facilities) have been candidate:; for such co-disposal.
Staff considers that SNM and byproduct material [i.e.,
11e.(1)] that may be present in contaminated soils should not be considered as a candidate for disposal in a uranium mill tailings impoundment without significant reasons to the contrary. Appendix A of Part 40 presents criteria for the disposal of 11e.(2) byproduct material.
These
~
1
~
The Commissioners 4
criteria to properly dispose of this material were developed based on the physical, chemical, and radiological characteristics of the material.
The basis for most of the requests to commingle non-11e.(2) byproduct material in I
i tailings impoundments is that the pro similar in characteristics to 11e.(2) posed bulk material is 1
byproduct materials i
but does not meet the definition, which is based on process and history, rather than characteristics.
Because of this similarity to 11e.(2) byproduct material, the criteria in Appendix A are appropriate to use, to ensure safe disposal of this material.
This premise is only valid for bulk material whose primary radiological contamination is uranium, thorium, and radium in low concentrations.
Wastes contaminated with 11e.(1) byproduct material are sufficiently different that this premise may not be valid.
Soils contaminated with SNM may be similar to 11e.(2) byproduct material in physical, chemical, and radiological characteristics.
There are, however, issues related to the disposal of SNM-or byproduct material-contaminated soils, in tailings impoundments, that preclude routine approval using the criteria in Appendix A of Part 40.
Possession of SNM or byproduct material would have to be licensed under 10 CFR Parts 70 or 30, respectively, and not Part 40.
For SNM, the issues of criticality, material control and accountability, and site security might have to be addressed.
For these reasons, the staff will not approve the disposal of byproduct material or SNii through the process discussed in this paper.
If there is a compelling reason to consider a specific proposed disposal of byproduct material or SNM in a tailings impoundment, approval of the Commission will be required.
The issues discussed above are explained in greater detail in Enclosure 4 and have been included in the revised policy guidance for disposal of non-11e.(2) byproduct material in uranium mill tailings piles (Enclosure 5).
Throughout the period of development of the agency position on disposal of non-11e.(2) byproduct material, the staff has been aware of the importance of this matter to the State of Washington. On June 19, 1991, the Secretary of the State of Washington Department of Health requested by telephone that NRC staff expedite the approval and release of this agency position on non-11e.(2) byproduct material.
The State of Washington has under review a major uranium mill licensing action that includes issues relating to the disposal of mine sludge waste [non-11e.(2) byproduct material) in a tailings impoundment. The target date established for completing
4 The Commissioners 5
action on the uranium mill license is by the end of July 1991.
The State of Washington is reluctant to take such action prior to NRC issuance or approval of the guidance discussed in this paper, since NRC must concur in the license termination for this facility.
There has been some outside interest in the subject of disposal of non-11e.(2) byproduct material in tailings impoundments.
We recently received correspondence from an NRC applicant who is also an Agreement State low-level waste licensee,, expressing concern about this subject. A copy of that July 31, 1991, letter is provided in Enclosure 6.
Resource Implications:
Staff review of a request to commingle non-11e.(2) i byproduct material in tailings impoundments, under both the current guidance and this proposed revised guidance, would be in the context of a proposed license amendment and the number of such requests are estimated to be few.
As such,
)
resources required for these reviews are included in the budget allocated for review of license amendments.
Recommendation:
Unless advised to the contrary by the Commission, within 10 t
working days from the date of this paper the staff plans to continue dealing with requests for co-disposal of non-11e.(2) byproduct material (for source material only) in tailings impoundments on a case-specific basis.
The revised policy guidance contained in Enclosure 5 will be transmitted to Region IV for implementation.
Coordination:
The Office of the General Counsel has reviewed this paper and has no legal objection. The Office of Governmental and Public Affairs has reviewed this paper and concurs.
/
x%
mes M. T or xecutive Director for Operatons
Enclosures:
1.
7/27/88 NMSS memo to RIY 2.
11/16/90 and 12/24/90 DOE ltrs to NRC 3.
1/23/91 DOE ltr to NRC 4.
Non-11e.(2) Byproduct Material Paper 5.
NMSS memo to RIV 6.
7/31/91 Envirocare ltr to NRC
r, 6
SECY NOTE:
In the absence of instructions to the contrary, SECY will notify the staff on Wednesday, August 21, 1991, that the Commiss. ion, by negative consent, assents to the action proposed in this paper.
DISTRIBUTION:
i Commissioners i
OGC OCAA OIG GPA REGIONAL OFFICES EDO ACNW l
SECY i
1 I
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l
MART!N OS 6/16 El ! 71988 MEMORANDUM FOR:
Robert D. Martin, Regional Administrator Region IV FROM:
Hugh L. Thompson, Jr., Director Office of Nuclear Material Safety anc Safeguards
SUBJECT:
DISPOSAL OF NON-BYPRODUCT MATERIALS IN TAIL IMPOUNDMENTS e
In your February 23, 1988 disposal of non-byproduct waste materials (NARM and other wa tailings impoundments.
of wastes discussed in your memorandum.To facilitate our review, we used the tw These categories are: (1)NARM wastes, those generated by operations not regulated under the Atom i
Act (the Act) and (2) other wastes, those generated by operations reg under the Act.
legislative cefinition of byproduct materiaNeither of these waste categories e
have to be favorably resolved before the NRC coul disposal of the NARM category of waste in mill tailings impoundments under current statutory authority.
Therefore, we agree with your recossnendation tha the near future.
tailings impoundments. approve a policy of disposal of material in the NARM catego The primary issue is whether the inclusion of NARM wastes in a mill tailin disposal site is consistent with U.S. Government ownership (or State owne and other authorities under Section 83 of the Act. Since the Department of NRC requested DOE's view on this question. Energy (DOE) is cur D0E's response stated that DOE has doubts about its authority to take title to the mill tailings disposal sites impoundments (a copy of the DOE response is attached).if N As noted in your request Therefore,disposalofNdRMintailingsimpoundmentswouldresultinaNRC This could create duplicative jurisdiction between NRC and o State agencies with respect to the commingled radioactive materials.
into ground water), the Commission's authority under Secti approve alternatives to requirements for disposal or reclamation would be seriously impaired.
Additionally, the wastes any be subject to presently applicable Resource Conservation and Jtecover Protection Agency (EPA) y Act (RCRA) regulations or other U.S. Environmental rules for hazardous constituents or MARM, as well as to applicable State requirements.
If the waste results from a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) clean-up Enclos'ure 1
'M. ART:N DS 6/16 considered by the licensee to ensure that th 2
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suitability of th~e site for disposal of the CERCLA wastes need to be regulatory authorities woul4 have to address these r e regarding The appropriate Utah and a itcense application under review in th equirements.
site licensed by the State of uranium mill tailings impoundments.a;; ears to be no comoe e State of Colorado, there ose of NARM material in different types of licensee activities regulatedThe o generated from several wastes do not meet the legislative definition of "b under the Act. Although these disposal in tailings impoundments should be cagree fro tailings in the impoundment.provided the volume of material is not roposal by-case basis, With respect to the land transfer issueared to the exis in its letter of June 10, 1984 in more detail on a site-specific basis.
stated that it would be willi
, the DOE category, the other issues appear to be more ameanable,to rfor the Additionally ng to discuss this case-by-case basis.
Therefore esolution on a significant envtronmental impac,t not be impacted, (3) there are no (2) the reclamation RCRA or CERCLA problems could authorize such a disposal. agrees to take title to the site up and (4) the 00E amation, then NRC four points have been met.in our view, it is the applicant's respo This demonstration should include reaching they on this responsibility for the applicant. appropriate agreeme The NRC should not take
@ gas $ Ambert 1 Seraers f,
Hugh L. Thompson Jr., Director Office of Nuclear, Material Safety and Safeguards
Enclosure:
00E letter dated June 10, 1988 4
O
,e Department of Energy WaeNapon. DC 20s44 1
JUN 10 588 ofvision of Low Level Wastt ManagementMr, Atchard and Deconsistfoning U.S. Nuclear Regulator Connission Wash 1n9 ton, D.C.
togs s
Dear Mr 8angart:
This is in response to M Department of Energy rega. R. inapp's letter of April ownership of licensed uranium stil trding the Departmant's acceptance of t
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meterfals were also dispsed there. a111ags impoundments if non.ransfer of 6yprodWet While the Department supports the Nuclear Regulat to find permanent disposal sites for these mat ory Cornission's efforta Energy Act to accept custody of non-byprodu it is not clear that '
erials on 83 of the Atomic action may be needed to provide an unan61guous reso a s. Congressional Assustag some means of resolving the authority q e ti t s issue.
prior satisfaction of all Resource Conservation and Ron was achi us C<pprehensive Environmental Response. Coaxnsationi (CERCLA) ecoveryAct(ACRA)and as amended, requirements wouldw essential.and Liability Act financ14I arrangement would have to be provided Appropriate would bear no additional cost associated with the acso that the De material.
quisittog of this Your letter indicated that there are three pending mill tailings sites. We sise understand there in question censed uranius
(* secondary *; recove(ry weste) with a NRC jurisdictionsome "MAAN*) clearly evtside erent materials to discuss this in aere detail if you desire with
. We would be willing material at specific sites.
respect to specific Sfacerely, John t. Baub11ts Acting Director Office of Assedfal Action and Weste Technelegy Office of nuclear Energy
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Department of Energy Was%ngton, DC 20585 November 16, 1990 Mr. Ricnard L. Bangert Director. Division of Low-Level Waste Management and Decommissioning, NMSS U.S. Nuclear Regulatory Commission Washington, D.C.
20555 c
Dear Mr. Bangert:
This letter is in partial response to your letter of October 5, 1989, to Mr. John E. Baublitz on the disposal of " select" wastes, such as Naturally Occurring and Accelerator Produced Radioactive Materials (NARM) and other low-activity radioactive wastes in active conenercial uranium mill tailings piles.
We understand that much of this commercially-generated waste is currently scattered around the country at unremediated temporary storage sites and may pose a long term potential risk to public health and safety.
We also understand that the low-Level Radioactive Waste Policy Amendments Act of 1985 does not require tne States to dispose of this waste.
In November 1989, the Office of Environmental Restoration and Waste Management (EM) was approved as an organizational entity reporting directly to the Secretary of Energy. Mr. Leo P. Duffy is the Director of that organization.
I as the Director of the Office of Environmental Restoration, EM-40, and report to Mr. Duffy.
Mr. John E. Baublitz is now the Deputy Associate Director of this office.
This office has the responsibility for managing all environmental restoration activities associated with the cleanup and assessment of inactive facilities and sites contaminated by wastes generated from past nuclear operations connected with major Department of Energy (00E) nuclear programs.
Remediation and long-term surveillance and maintenance of inactive uranium milling sites under the Uranium Mill Tailings Remedial Action Program is the responsibility of this office. This office is also responsible for managing both the Formerly Utilized Sites Remedial Action Program and the Surplus Facilities Management Program. Over the past year, our staffs have been discussing the issues raised by your 198g letter.
We agree that there is no presently approved disposal site for NARM and other low-activity radioactive wastes and little chance that the problem will be resolved in the near future.
Consequently, it generally would appear advisable for the Nuclear Regulatory Cosmission (NRC) to authorize the utilization of planned future disposal facilities for uranium mill tailings for the placement of these wastes. Technical, economic, and health and safety considerations likely should justify this course of action.
s
2 At this time, we would interpose no objection if NRC transferred a remediated commercial milling site containing these wastes to DOE in accordance with section 83 of the Atomic Energy Act, which requires that the transfer and resulting custody be without cost to 00E.
To ensure that DOE would not incur any cost associated NRC make the followinct findings:with these wastes, we suggest (1) that there is no adverse
. environmental impact resulting from the disposal of these wastes (3_1., that the reclamation of the impoundment will not be impacted or that there are no groundwater restoration issues); and (2) there are no outstanding environmental compliance issues under any applicable environmental law (3,,1, under the Resource Conservation and Recovery Act or under the Comprehensive Environmental Response, Compensation, and Lt. ability Act).
Under separate cover, we will forward to you our detailed response to the five questions you raised in your letter.
Let na know if you have any questions regarding this letter.
You or your staff may also wish to talk with Dr,. Ralph Lightner (301-333-5476), Jacob Gatrell (301-427-1759), or Steven Miller (202-586 6947).
Sincerely.
l f'
~
R. P. W itfie d Associate Director Office of Environmental Restoration b
R 4
Departmont of Encrgy Wasnington. DC 20585
~
i
[.'[. 1.. E ".
Mr. paul H. Lohaus, Chief Operations Branch Division of low-Level Waste Management and Decommissioning Office of Nuclear Safety and Safeguards U.S. Nuclear Regulatory Comission Washington, D.C.
20555
Dear Mr. Lohaus:
This letter is in response to the issues you and Mike Fliegel raised in our December 11 meeting in Germantown.
clarification on several points relative to the NovemberYou asked for response from Mr. Whitfield to Mr. Bangert on non-by-product waste 16, 1990, materials being placed in mill tailings impoundments.
i in that letter on page 1, paragraph 3, it states that " planned future disposal facilities" would be used for placement of naturally occurring and accelerator produced radioactive materials and other low activity radioactive wastes.
The word " future" refers to when they would become formal disposal facilities that could be transferred to the Department of Energy (DOE) after the current owners completed their required remediation of the Title
!! sites.
This wording in no way was meant to imply that active site owners could not place materials in their sites now.
A second question raised at the December 11 meeting related to the possible need for specific DOE concurrences on individual disposal decisions.
We do not feel that a DOE concurrence would be appropriate or necessary as long as the Nuclear Regulatory Commission (NRC) has determined that the waste material meets the criteria outlined in the November 16 letter.
In sumary, the NRC would determine that disposal as proposed would be appropriate; that the waste material can be transferred at no cost to 00E; that no adverse environmental impact would result from the disposal; and that there exists no outstanding compliance issues under applicable environmental law.
Let me know if you have any questions regarding this letter.
You may also wish to talk to Jacob Gatrell of my staff at 301-417-1759.
Sincerely, Y
7 t
I(
Ralph G. Lightner Director Division of Southwestern Area Programs 90122sooff 901224 i
Office of Environmental Restoration 13!'JF cr 406.1 A/LU
D0partment of Energy Washin$on. DC 20545 JA 2 IMI Mr. Richard L. Bangert Director Division of Low Level Waste Management and Decommissioning, NMSS United States Nuclear' Regulatory Comission Washington, D.C.
20555 e
Subject:
Response to'the Nuclear Regulatory Commission's Questions about Non-By-Product Waste Materials Being Placed in Mill Tailing Impoundments
Dear Mr. Bangert:
The following are the Department of Energy's (DOE) responses to John E. Baublitz on the above subject.the five questions you based on technical review of the questions and applicableThe general co regulations, is that, in many cases, the composition of the non-mill tailings such that co-disposal of these wastes with tailings may be acceptable or even desirable based on the technical considerations discussed herein.
General Comments In general, a Title II disposal site (surface impoundment for uranium mill tailings (by-product materials) must be compa)tible with the requirements of the Resource Conservation & Recovery Act (RCRA).
Technical requirements (design criteria and performance specifications) for Title 11 disposal sites are sumarized below.
Design standards for Title II disposal sites are 40 CFR 192.32.
Title 11 disposal sites are defined as surface impoundments that must be designed, constructed, and installed in accordance with 40 CFR 264.221. This regulation contains standards for RCRA-permitted surface impoundments.
The groundwatar protection standard for Title II sites is 40 CFR 264.92, which is the groundwater protection standard for RCRA permitted disposal facilities.
In addition to the list of hazardous constituents that must be considered for groundwater protection under RCRA, molybdenum and uranium must also be considered per 40 CFR 192.32. Also, groundwater standards for radioactivity are specified in 40 CFR 192.32.
2 Each Title II site must satisfy the RCRA Closure Performance Standard, 40 CFR 264.111, for non-radiologic hazards.
In addition, the Title II impoundment is to have c minimum effective lifetime of 200 years per 40 CFR 192.32.
In the event that groundwater standards are exceeded following closure, a corrective action program, in accordance with 40 CFR 264.100, implemented.
must be j
j Under current law, no provision is made for disposal in Title II i
surface impoundments of the following types of waste:
g j
1.
Wastes generated by operations that are licensed and regulated under the Atomic Energy Act but that do not satisfy the legislated definition of "by-product" material.
2.
Naturally occurring and accelerator-produced radioactive materials (NARM).
Responses to the Five Ouestions Question 1:
Are there any quantities or concentrations of NARM that could be disposed of in the tailings piles without compromising D0E's ability to eventually accept title to and custody of the reclaimed tailings site?
these quantity or concentration limits.
If so, please identify Criteria for determining the acceptability of non-by-product materials should consider:
a)
Concentrations of hazardous constituents in the non-by-product materials.
b)
Impact of the additional material quantity (volume) of non-by-product materials that the Title II site would have to acconnodate.
c)
Possibility that Radon-222 releases from the disposal site would exceed the limits specified in 40 CFR 192.32 as a result of including non-by product materials in the Title II site.
Tables I, II, and III show reported concentrations (US EPA, 1982; and Ford, Bacon & Davis, 1981) of radiological and non-radiological constituents typically found in mill tailings that have been or will be disposed of in UNTRA project repositories.
Constituents in tailings at Title II sites are expected to be in most, if not all, cases siellar to wastes going into UMTRA project repositories.
Table IV shows the chemical composition of representative uranius are samples.
In establishing acceptable concentrations of contaminants, the reconnended values could be selected from the tables and adopted as upper limits;for waste acceptability.
If the constituent
Table I.
Highest Residual Average Concentrations of Non-Radiological Constituents Found in UMTRA Program Mill 1
Tailings Constituent Wt. %
>l.0
>10.000 Antimony 0.016 160 Arsenic 0.0254 Barium 254 0.386 3,860 Bismuth 0.012 Boron 120 e
<0.01 Cacmium
<100 0.000869 8.69 Calcium
>l.0 Chromium
>10,000 0.203 Cobalt 2,030 Copper 182
{
0.0182 0.1160 1,160 i
Cyanide
<0.000001
<100 1
<0.01 0.00021 Iron 2.1 3.11 31,100 Lead 1.0 10,000 Magnesium
>1.0
>10,000 Manganese 1.0 10.000 Mercury 0.0109 109 t
Molybdenum I.0 10,000 l
>1.0
>10,000 Rubidium 0.056 Selenium 560 0.0391 391 Silicon 1.0 Silver
>10,000 0.0006 Sodium 6
>l.0
>10,000 Strontium 0.413 4,130 Tin 0.62 6,200 Titanium 1.0 10,000 Tungsten 0.057 570 Vanadium 0.399 3,990 Zinc 0.0359 359 Zirconium 0.042 420
Table II.
Highest Residual Average Concentrations of Radiological Constituents Found in VMTRA Program Mill Tailings Constituent Concentration (PPM)
480 Table III.
Other Constituents for Which Limited Data are l
Available 1
I Constituent Concentration (PPM)
<1.4-6.3 Cerium 18 279 Cesium 0.9-15.1 Chlorine 27-6820 Europium 0.33-2.13 l
Hafnium 2.9-8.7 Lanthanum 4.6-43.8 Neodymium 41-95 Scandium 1.1-9.5 Tantalum
<0.5-2.6 Terbium
<0.1-5.4 Thorium 1.2-33.1 Ytterbium
<0.5-6.3 l
Table IV.
Elemental Composition of Vanadiferous Uranium Ore from the Salt Wash Member of the Morrison Formation (Jurassic).
The number in parentheses identifies the source of the data cited in the column.*
Element "I'
'**I " IEP"I Ore U,nmin.
Ore Unmin.
Ore Unmin.
(1) ss (1)
(21 ss (2)
(3) ss (3)
U
?!
3800 13 10400 11 V
4900 10 9510 578 16900 400 Mo 13
<5 100 8
200 26 As 168
<10 417 32 275 20 i
Zn 116 53 228
<89 180
<56 l
Cu 86 13 23 7
32 16 Ni 8
0.5 35
anotsat system (RCS) totalfloor sala Branch. UA Nucians Rouml=8=ry p2rticipaes as a paty.
frem,2me.aspgna to 270A60 sputand Carammamas. Weslangboa. DC30856. or Those perwuenos teniassrvene hosesse lowem the Sew measurement hand deltuer to 79ED Norfolk Avenue.
parties to the premmasme,subtset to any uncertainty salue, spec Sad he the Beenda, hEL between ?'43 a.m. and limitatsona in the order greatnaglesee la footnots, fuem 3.52 m 18E.
4:15 P.ra. on Federal werkdays.
intervene, and hows the appertunney to asenefissuona: ApWt23. test Pon possrnen espoassafsees coerracT-p:rticapsee fully hr thecamdsat of es gbenair daar-Aprd 25.1982 Myrea Fliesel. Office of Nuclear hrapas. n=claminar the opportensey te Asseedhuseat No.:45 Materia 1 Safety andSafeguards. US preseas evadsam and-==d==
paciaryOperatieg Userise Aia NFF-Nuclear Regulatory Comuniasion.
witnesses.
- 73. Amendensat reweed the Tahal Waaluastes DC2555s telephone (301)
Since the t'- bas mens s.
Specificonaan. Public couemensE 50ba555.
final determanasies that the====d===*
rapaasted as to proposed no sipuncaat iluolves na mismiaWa=* hasands hazaedsonesidesation: No.De consideration. if shoestaslam; - -i Comunaasion's.salated erah=Ha=-ef the im-.===
it will not stay the efecta ieness of the amendment. finding of emangency ern==d-ar Amer beanas held would circumstances, and final determination NRC stwrhas pmpend a avision to take place while the===ad-Lis la of no significant huards conseduseaten its lisenemygnidsace, issued July 27 s!!ect.
are e==8=i==J is a Salsey Evalunhos Sees, our the sEsposal erf mennel o&er A request der a.baenag.or a petition dated Apsil 31.1992.
than that defirsed te sechen m.02) of the ior lesve to intervena must be Eles adah A.,,f pubbs Dar==aat Amos Atoenc Energy Actof1954 (AEA). as the Sec stary of the ca===d==ian-U.S.
Nuclear Regulatory Geauniasion*
- w. B. F. Jones ManuaridIJirasy.
a==ad='t in urunhan mill tailings Washington, DC30555. Attention.
esa Fra daba Avenus. Ahapaappa..
' =;+ = '- ^ (Port A of the pesmaybrasia15001.
't;;'-
=y Information). he staff Dockr ting and.Servisen Branch, or may Aggerseyfbrlaceasse: Gerald has also prepared new licensing be delivered to tha Commission's Public Document Reorn. the Gehman Building-ChassaE. Esquiss. lay L Silhase, guidases on the processing of feed Bespiise. Shaw. Pittman. Potts &
matedals other than natural ores in 2120 L Street. NW, Washing;an. DC Tn-9-. 2300 N Street. NW uranluntmills(PartBof the 20555. by the above data. Wher*
W Ena. DC 20037..
Supplementary I= fan =*aa) la wtitions are filed during the last ten (10)
AIRC Directabilohn F.Stalz developing the sudd==ca staff analyzed ays of the motice period. It is requested Dated at Rockwitta. Maryland. tius sah day thet the petitioner promptly so inform of neay toer.
the policy and lagslineues involved for the Comadssion by a tell. free telephone For the Nuclesc Regulatory Com=ia aon nch guidamna docussmat.la:= der to call to Western Union at 1.(300) 325 8500 Steven A.Varga.
g
,, g,
{
- (in Missouri 1-(BDD) 3628700). De afectar.Orisione(Asocaorprojecar Ull.
with esse guidance I
Western Union operator should be given off,ar e/NlasAser Jteactor Jtepulation darni-nh,6e NBCis sebciting Detagram identification Number 3737 end the following message addressed to IDas.ee'.ucus FWed Ftz.es: e.45 am]
comsnents from the public. &e EnvirorunemaalPam=e== Agnacy NRC (Pre >ct Dhecaery tIlephone number, petitioner's name and Agreementsestes, and regionallaw-date petttton was level wasee osapaces. ====*=
mailed. plant name. and publication ta, -anaam IM PeeSties. flegaest ger received wiJl be esasidesed in doculag date and page amnber of this Federal pidisc Commente on.Sovised whether the guidense documents should Redster notics. A copy of the petitiarV N on DW of Mess.A5ensic be revisaid.
should also be sent to the Office of the Energy Aet of 1834, Seetion 11e42)
In the guidance documents and General Counsel US Nuclear /
R:gulatery Comun seion. Wsshington.
Dypseduct Masertalin Temnge associated suff analyses, the term "non-Impoundneontsand Positten and 11e.(2) byproduct material" is need to DC 30655, and to the attorney,fbr the Guldense en Wie Use of Uranium HE refer to radiaareive waste that is similar licensee.
/
Feed Meterlate OuterThen Natural Nontimely filings of pettrions forleave in physical and radiological Grea to inkevene, sanded pehmens.
characteristics (for exameple. low supplemental petttioris and/or requests aseutv: Nuclear Regulatory
]ific activity) to byproduct material.
e for hearing wig not be entertained Commission.
of MEA absent a detensination by &e acTiest Request forpublic comment.
but does not aset the definiUon in that Commission. the prooiding officer or the it is not deived from Atomic Safety and Licensing Board that aussauusv:De Nudear Regulatory ore F +
= prunarij g,, gts source y
the peWon and/spr request should be r'=====- (
is salicrung public masterial content.
gr:nted based upam a belencing of the comment en two dance h De suff analym in Pacts A and B fbetors spectned in 10 CPut 25Me)(1)N)-
"R sed Guidance on Disposal of Non-contain adh=1 definitions and (v) and 2314(d).
Atomic Enesgy Act of 2954 sectase e
===6ve bodiyound lainnnation Depasses Eight Company, et. aL Dechet 11e.(2) Byproduct Material in Tailings necessary as==d. =r==d the summary
-eand " Position ad No. aM22. Seaver Valley Fesser Seahen. Cuadmaca em tbs Use of Ursamma Mill guidance docuanenta, %e reader should 1mit 3Aiggangnest.Pumasylummie Feed Meteriale Other Den Natural
- consun the easiyees isr the terms and ama, er.-.a-.=stanguese January Oma:" along with the sesocQated staff tasa,e presensed is contesst.
13.1een analyses.
30538 Fedoest Regleter / Vol. 57. Ns. 93 / Wednesd:y heay 13. 1992 / Notices Part A--Revised Goldemos se Disposal com'ments within 30 days. before discossed. This analysis is limited to of Noe Atesmic Emergy Act ofless, granting the license amerdment to the options involving commingling with l
Secties 11a43) Bypseduct Material is ne.(2) licensee.
existmg tailings impoundments.
J Tashags impoundments 10.W mechanism to authonse the
- 1. In reviewing licenses requests for disposal of non.ne.(2) byproduct
2. Background
the disposal ' f sontce material wastes materialin a tauings impoundment is an De Uranium Mill Tailings Radiation o
amendment to the mill license under to Control Act (IMfRCA) of 1978 that have radiological charactenstics comparable to those of Atomic Energy CFR Part 40, authonzmg the receipt of amended the AEA to specifically Act (AEA) of 1964. section 11e.(2) the matenal and its disposal.
include uranium and thonum mill byproduct material (hereafter designed Addi,tionally, an exemption to the tailings and other wastes from the requirements of10 CFR Part 61. under process as radioactive material to be as "11e(2) byproduct material")in tailmes impoundments. staff will follow the authority of I et.a. must be granted.
licensed by NRC. Specifically the h hcense amendment and the i St.6 definition of byproduct material was the guidance set forth below. l.icensing exemption should be supported with a revised in Section 11e.(2) of the AEA. to of the receipt and disposal of such non.
8t*N *n8I 888 Paper addressing the include "... the tailings or wastes Y,
AEA. section 11e.(2) byproduct material issues discussed in this guidance.
produced by the extraction or
[hereafter designated as "non.11e.(2) concentration of uranium or thorium byproduct amatenal"l should be done NRC Staff Analysis of Disposal of Non, under to CFR Part 40.
Atomic Energy Act of 1s54.Secties from any ore processed primarily for its
- 2. Naturally occurring and accelerator 11a43) Bypseduct Materialla Taihags somce material content."
produced matenal waste shall not be The definition of byproduct material authonsed for disposalin an us.(2) y hrodh in Section 11e.(2) of the AEA includes byproduct matenalimpoundment.
all the wastes resultmg from the milling
- 3. Special nuclear matenal and Recently, the Nuclear Regulatory process, not just the radioactive Section 11e.(1) product material waste Commission (NRC) received several components. In addition. Title II of should not be considered as candidates requests to allow activities other than UhtTRCA== led the AEA to for disposalin a tailings impoundment.
the normal processing of native uranium explicitly exclude the requirement for without compelling reasons to the ore at licensed uranium milling facilities. the Environmental Protection Agency I
contrary,if staff believes that such We have, in the past. received. and, in (EPA) to permit 11e.(2) byproduct matenal should be disposed ofin a some cases, approved, similar requests. material under the Resource tallings impoundment in a specific These requests have fallen into two Conservation and Recovery Act instance, a request for approval by the categories.The first category of requests (RCRA).The designation of 11e.(2)
Commission should be prepared.
is to allow the processing of feedstock byproduct material contrasts 4.The us.(2) licensee must material that is not usually thous!.t of as significantly with the situation for demonstrate that the materialis not ore, for the extraction of uranium, and source material a and other radioactivr.
subject to applicable Resource then dism of the resulting wastes and materials controlled under the authorit)
Conservation and Recovery Act tallings in the facility's taihngs pile.De of the AEA.This possibility for dual regulations or other U.S. Environmental second category of requests is to allow regulation by both NRC and EPA can Protection Agency standards h,r the direct disposal of non Atomic become an issue when dealing with hazardous or toxic wastes prior to Energy Act (AEA) of1364.section mixed hasardous wastes. As a result of disposal.
11e.(2) byproduct material 8 [hereafter UMTRCA. NRC amended to CFR Part 40 5.The 11e(2) licensee must designated as "non 11e.(2) byproduct to regulate the uranium and thorium demonstrate that there are no material"). that was not generated -
talhngs and wastes from the mulhng Comprehensive Environmental onsite, into tailings piles.
process. Thus, under normal operation.
Response. Compensation and 1.iability in assessing these requests, the staff all the tailings and wastes in an NRC or Act issues related to the disposal of the has raised two policy concerns related Agreement State licensed mill producing non-11e(2) byproduct matenal.
to tailings piles.The first concern is that uranium or thorium are classified as 6.The 11e.(2) Licensee must the requested activity might result in "He.(2) byproduct material." and are demonstrate that there will be no complicated, dual, or even multiple disposed ofin tailings piles regulated significant environmental impact from regulation of the tailings pile, and the under Part 40.They are not subject to disposing of this material.
second concern is that the requested EPA regulation, under RCRA. However.
7.The us.(2) license must activity might jeopardize the ultimate the EPA Clean Air Act regulations still demonstrate that the proposed disposal transfer to the United States result in direct EPA permit authority will not compromise the reclamation of Government, for perpetual custody and over the mill tailings, whether or not the tailings impoundment by maintenance, of the reclaimed tailings they are commingled with non.ne.(2) demonstrating compliance with the Pile.
byproduct staterial waste.
reclamation and closure criteria of This analysis addresses the second ne UMTRCA also required and appendix A of10 CFR part 40.
category of ruivests. that is, requests to provided for long-term custody and
- 8. The 11e.(2) licensee must provide dispose of non.ne.(2) byproduct surveillance of the byproduct material documentation showing approval by the material in tailings piles. lssues relating and the land use for its disposal The Regional Low.lavel Weste Compact in to such proposals requesting regulatory Department of Energy (DOE)is the whose junediction the waste originates consideration of commingimg of tailings Federal agency currently designated as as well as approval by the Compact in with other radioactive wastes are whose jurisdiction the disposal site is a Henceforth, byproduct sielenal se defmed m located.
- For the purposes of this enelysis, the term non.
Secteen 11e421 of the AF.A will be referred to es 9.He Department of Energy should 11*121 bypredisce sietener wiu be used io refer so 11e421 byproduct metanal"
'*d'***** ****' **' "d*' baduct 8 F.neept W esse of seurne mewnel a *#
he informed of the Nuclear RegulatD -
meternmL as sterined in the AEA en section 11e421 metenal conseses only of the recheective Commission findings and proposed but is not leseDy considered to be 11e42) byprodset susnponents of the eneste. that ter uranium. rhem actton, with an opportunity to provide newnst.
or any combrnation of the twe l1s CFlt e&Athil s s.
v.MS&Mc's.es>.. % A.L N..,
Fedessi assister-/ vol. sr. No. sa / wednandayt usy 13, Isaa / Neitices assa7 the "cussedsel agency" by the Ah 461 httne Wastes used in the Manhattan Ensinaanns However, the.mspadualif To mine uranium or other unuse Ehaamct and early Atasuc Emessy mfumi sah te11m(28bypredmet mammel. MM cammies.m mated ese from undeW oc epm.
Commission pmgrama. Wastes soeuhmg pit mines. operstars frequendy need to frosc that processang and disposed of at provisies elle=4nglerthe tsemaler et dewater semies emines T)ma sesula these sites would qualify as na42) custo4
- titia.ed henne ipe eventumi in geenotese of euer weser with byproduct maastral. However, it is not long-m cusandy and seeunilsene of suspended er dieselsed constemana, cieer that all the n=*==iame d matenal e
other material soon.if theesseend were some d whack me m mem6m at these sites sesult from presessing of no more redooectice or tous than she processang the emine waaer to manafy ore for tharium. At some estes there was urenium er therium teilings themseless. Natsenal pollution Deschaege also proceemns for care wths and other The Elinunataan System or other nelease metals. The DOE. which accepts emu T
ddressed [,,,,
'[achgodoN la use inv i
and Some licensees have proposed to cases, the resulnns water ineatment control of theos==mn=1= DOE directly dispose of resoective wasterin Siter-cake er sludge seendues emceed the unname thee a semi of 1J iniusan cubic existing arenium adil teiltags artes. The 0.lEpercent licensable lamat for esusee F8'ds of ammmalislocated at mes in u msterials very from taillegs from
""'a==1 These madues de not senefy Stams, a.==e psepenals have extrection processes fbr instals and the definition of 11e.(2) byproduct conh the amesperistian of rcre-earth metals (such as coppw mateneL basance Wey de not seselt FUSRAP materials from New Jemmey to tratalue.columbiwn. zirconium) to fross the emaraction or esecentruaan.of taihas pues at namnium mills ist other spent resins from water. treatment
"'*******""*I'**88*-
tatu. no m a gen.and processes. However. because these NBC and the Acmement Stoms here D'""E matenals did not rasult from the been coatected by licensees and weste 4.4 NARM 68 8epose M sxtraction or r=manaica of uranium g These===*== wealt froen a mode range ase r thonestIsom ess.thep are sat 11 42) hmdw mm M -
of opsredoes, butarenot psomeDy a
YP" " "*A*"*IM *I O***
.."phaud" wama has elevend mill tailings sites. NBC has indacated mgelemd by the AEA. poet requests for abat asch mawrial dow not conshete di8Poulin eremium adl tauing ponds cono;ntrations of sousee matenal and 11e421 byproduct mamrial.
have included contaminated resins feom unless otherwaee examptad, require ion-enchange wou-weter punfying licensed coatsoi if the materials encaed 4.2 Secondary process Westes operations. NBC has also reeswed the 0.06-percent licensable 6.ntent of Fasqueady, natural ores that are inquines regarding the disposal of source matenal by weight) uerien is processed for sero-earth or other metals construction scrap and rodium.
to CFR part 40. Some of the wastes haue sign &Rcant concentrations of contaminated soil from old commercial Proposed for comsningling eentain radioactane eieraants. Examples include Operations.The individual States radioactive material not regulaaed by copper min andam and vannahum eres.
usually administer the reguletory NRC. that classify as naturauy-occurnns Somemmes the urannam is captused in a responsibility over MARM. butmany and accelerator produced endioactive side emessa recovery operetaan,in other pedoral agencies have material (NARM) and as such cannot be which uranium is precipitated out of the jurisdienenal responetbilities related to easily disposed of. la mast of the pregnaat solutaan, before or after the NARM.These includeEpA. the proposals the staff has seen, disposal of rare earth or other metal Ahhough this Consumer product Selbty Coaumssion.
thise materials in tailings side-stasem recovery operataan is the Deparanent of Health and Husion impoundments would not significantly liasoned by NRC. the lashags (which Services, and the Departnent of Labor.
increase the effect on the public health, constat of the crushed depleted ora and There is a State-licensed NARM sihty, and environment. Because of the the depleted solution after secovery of esposal facility in Clive. Utah. lleensed rel2tively lage volumes of these wastes, metals and tare earths) are not 11s.(2) to Envirocere of, Utah. Inc.
Iow-level waste disposal options are byproduct material his is because the Two conunon elaments ren through limited.Dese westes are saniler to ore was not processed primarily for its most of the requests we have received taihngs in volume, radioacnytty, and source material content, but for the rare for direct disposal of non 11e.(2) toxicity. Therefore, some weste earth w shw mmet If du tads sentain byproduct materialin talange piles, the producers see the mi!! tailings disposal greater then 0.06 percent uramust and material is of low spectSc-activity, and sitzs as providing an economical option thorium. they would be source matenal the materialis physically similar to kr such disposal and would thus be bcensable and have 11e.(2) byproduct material. Most of the to be dispeesd of in compliance with requests are for bulk matenellike soil.
- 4. Types ofIFasma Aeing Proposedfor NBC sagidations. NRC has received crushed rock. or aludges, contaminated Desposellom Tai /irqps Rrles requesta froei NRC and Ayeoment State with source material in relatively low ne NRC and the Agreement States licensees to dispose of such taillags concentrations.
(reeminas from procums to extract continua to receive requests for the oew meals)ina licanad uranium miu # P""i*"$#*#C*i'l*""
direct disposalef non-ne.(2) byproduct tashnes piles.
In response to a request from Region material into uranium mill tailings pilas.
IV, the C; rector of the OfSce of Nuclear
'lhe fouowang genera 1 categories of non. 43 Formerty Utilised Sites Remedial Malenal Safety and Safeguaeds (NMSSI 11e42) byproductmaterial iumstrate the AC#8'r program (NSRAP) providedguidance for add===ing requests submitted to NRC and the These sites primarily processed requests to allost the disposal of non.
Agreement Stasas for disposalinto metwial auch as ma=te sands, to 11e.(2) bygenduct materialla licensed uranium mill taihses pilas.lacensed extreet thorium for cummercial mill tailings M -
- He ataff ander authenty essaldished by tida K af apphraw= Cometament ra=*rmets considenMitbatsthe type &olmaterial h
ease issuedhe thonum sounca smasanal propoemd fac suchdisposal could be
20528 Federal Register / Vcl. 57. No. 93 / Wednisday. M3y 13,1992 / NoticIs orparated into two categories:(1) 6.1 RCRA Authority and Mixed Waste need strong assurances or permission NARM wastes: and (2) wastes generated by operations regulated under the AEA.
The NRC and Agreement State from either the State or DOE that the in the guidance, the staff concluded licensed uranium and thorium milling commingling would not compromise the facilities do not fall under the eventual transfer of title and custody.
that it would not approve a pohey of allowing disposal of NARM wastes in jurisdiction of RCRA.The AEA
- b. The license cannot be legally stilmgs impoundments. A major concem explicitly excludes 11e.(2) byproduct terminated, unless the custody and title
" h "' '
material from RCRA permitting.
have been transferred as stipulated in ulate N M. If tates or I.1 A However. radioactive wastes that are Section 83 b(1)(A) of the AEA.
not 11e.(2) byproduct material and Commingling of westes could contain hazardous wastes are mixed complicate this transfer and, hence. the NA e ao u c tive jurisdiction with respect to the' wastes and are not exempted from termination of the license.
commingled radioactive mattrials could RCRA. Commingling RCRA-regulated Because of these concerns. NRC staff be created. Furthermore, the westes with tallmgs could result in the wrote to DOE regardmg its position on Commission's authority. under action application of the EPA RCRA such transfers. DOE's response of June 84c of the AEA. to approve alternatives regulations and separate EPA permitting 10.1988, indicated its uncertainty to requirements. if the NARM wastes authonty.The licensee would have to regardmg authority to accept custodial wzre to violate standards. would be comply with both EPA-and AEA-related transfer of tailings sites, where impaired regulations.
radioactive material not constituting The staff viewed the oNier category.
NRC has revised the regulations in 10 11e.(2) byproduct material has been wastes generated by operations CFR part 40 (including appendix A) to commingled. In further correspondence, regulated under the AEA. as potentially conform to the appropriate portions of of October 5.1988, and March 16.1990, ecceptable in a mill tailings EPA's RCRA regulations. The UMTRCA. the NRC staff requested more specificity impoundment. Each such proposal as amended, stipulates that regulations from DOE.
sh:uld be considered on a case-specific for byproduct material be consistent DOE's initial responses addressed the bisis. The guidance identified four with the Solid Waste Disposal Act generalissue of DOE acceptance of a findings that would have to be made (SWDA). On November 13.1987. NRC Title 11 site containing non-11e.(2) beiste NRC would authorize such conformed the regulations of part 40 to byproduct material. DOE would have no disposal.
the EPA standards containing the RCRA objection to such a transfer provided it As a result of this guidance, present provisions of the SWDA. However. if a would not incur any additional costs policy is that NRC will approve of licensee disposes of source material related to the non-11e.(2) byproduct proposed disposals of source material compounds or mixtures other than material.To ensure that there would be on their individual ments, and only if uranium or thorium ores, in the tailings no additional costs due to the non-tha licensee can demonstrate the piles, only the source material 11e.(2) byproduct material. DOE following:
component of that compound or mixture suggested that NRC make the following
- a. The disposal will have no would be excluded from the provisions findings before transfer:
significant additional effects on public of RCRA. if the compound or mixture
-That there is no adverse ufsty and health and the environment. qualifies as hazardous." The bulk of environmentalimpact resulting from
the reclamation of the impoundment impoundment. In effect. disposal must resulting in dual regulation of the will not be impacted or that there are ecmply with the reclamation and closure tailings impoundment. To preclude this cntiria in part 40, appendix A.
dual regulatory authority and the no groundwater restoration issues).
-There are no outstanding
- c. The disposa, will not result in the complications resulting from it. includm.g tsiling becoming subject to RCRA or the potential conflicts in requirements the Q n"v
,nd y ppl r r ntal Comprehensise Environmental staff will not approve co-disposal of Rtsponse. Compensation, and Liability non-11e (2) byproduct matenal law (e.g., under RCRA or CERCLA)-
Act (CERCLA).
containing hazardous constituents.
These conditions will be met if the
first three conditions (a-c) discussed in advance. to take title to the site, upon section 5. above. are demonstrated.
6.2 Custody and Title Transfer completion of the reclamation.
By letter dated January 23.1991. DOE The first two conditions are self.
UMTRCA. title II. section 202 (Section responded to five specific questions evident and will not be discussed 83 of the AEA) stipulates that such title NRC staff had raised.The questions further. The other two conditions can be to the 11e.(2) byproduct material and to focused on the quantities and sufficient obstacles to any routine the land used for the disposal of11e (2) concentrations of several categories of dreisions to allow such commingling of byproduct material shall be transferred non.11e.(2) byproduct material that DOE byproduct and non.11e.(2) byproduct to either the United States Covernment would fmd acceptable to dispose of in msizri ls under UMTRCA. and are or to the State in which the land is tailings impoundments without discussed, along with other issues, located. UMTRCA identifies DOE. or jeopardizing title transfer. DOE's below.
any other agency so designated by the response stated that enteria for
- 6. Major issues President to be the custodial agency for determining acceptability should the U.S. Government. However, at its consider three issues:
Although the technical, economic and option, the State may elect to become
- a. Concentrations of hazardous aYd o en we a u se e c osure.
m ter aIs
' two concerns Tables showing concentrations ci t
i ot i piles.
re 8 to this f'
significant statutory and regulat
'Th typically found in tailings were issues may complicate such dis I;
materia e u
co m gled uld p b e con en ret o uld
Federal Raghster / Vol. 57. No. 93 / Wednesday. May 13, 1992 / N:tices 20529 selected from those tablee. DOE also concurrence would not be appropriate Soils contaminated with SNM may be recommended that if concentrations in or necessary. However, in order to similar to n e.(2) byproduct material in the non-11e42) b esceed those "* yproduct materiod -
reduce the potential for future problems physical. chemical and radiological
- ado tables (or other sources)pted from the with transfer to DOE. NRC staff will charactenstics. Dere are. however,
- * * " a nak notify DOE (with an opportunity to issues related to the disposal of assessment be performed.
Provide Comments) of each impending byproduct material or SNM.
Thus. DOE desenbed a pmness. with decision to allow non.11e.(2) byproduct contaminated soils in talhngs an ultimate resort to risk assessment.
material disposalin a taihngs impoundments that preclude routme that could be used to determine impoundment, acceptable concentrations of approval usmg the enteria in appendix 6.3 Acceptable Wastes A of 10 CFR part 40. Possession of constituents in non 11:42) byproduct byproduct material or SNM would have materials. The first demonstration.
As discussed in section 4 above. rnost discussed in Section s. above (that the of the requests for comminghng non-to be licensed under 10 CFR part 30 or disposal have no significant additional 11a.(2) byproduct material in taihngs
- 70. respectively, and not part 40. For affects on public safety and heahh and impoundments pertain to matenal SNM. the issuse of criticahty, material the environment), encompasses this similar to uranium mill taihngs and control and acomuntability, and site secunty might also have to be DOE consideration. Thus. this wastes. These are usually bulk rasterials addressed consideration will be met if the toes like soil. crushed rock, or sludges.
For these reasons. the staff will not staff guidance is adhered to.
contaminated with low concentrations
- b. Impact of the additional material of source matenal or NARM.
- Ep the die I fb quantity (volume) of non 11e.(2)
For the reasons discussed in section 5
,,t r al or SN t ugh the P ss byproduct matanals that the Title 11 site above the staff will not approve discussed in this guidance and analysis.
would have to accommodate.
commi hng of NARM in tailings if there is a compelhng reason. such as DOE stated that this determination impoun nts. However. cunent staff an immediate health and safety concem.
to consider a specific proposed would have to be made on a site-specific Policy is to consider on a case-specific of byproduct material or SNM m, disposal basis, considering cost schedule, design basis. wastes generated by operations a
capacity of the impoundment, and the regulated under the AEA.His would taihngs impoundment. approval c4 the impact of errors and uncertainties in allow consideration of byproduct. as Commission will be required.
these projections and estimates.This defined in section 11e.
consideration will be satisfied by the and rpecial nuclear ma(1) of the AEA.6.4 - Regub'.ory Issues terials (SNM) first two demonstrations discussed in wastes,in addition to source material There are two regulatory issues that section 5 above.
waste, for disposalin tailings require consideration m developing this
- c. Possibility that Redon-222 releases impoundments. Recently there have guidance:
from the disposal site would exceed the been inquiries to the staff about disposal
- a. Inasmuch as die, kind of material limits specified in 40 CFR 192.32 as a of SNM. contaminated soils in tailings under consideration is within the result of including non-11e.(2) byproduct impoundments. For the reasons purview of the States under the Low materials in the title !! site.
discussed below. NRC staff will not Level Radioactive Weste Policy The Radon.222 release limits in 40 normally approve disposal of 11e.(1)
Amendments Act of1985 (ll.RWPAA).
CFR 192.32 are incorporated in Criterion byproduct material (hereafter referred to the explicit approval of both the i
6 of to CF1t part 40 appendix A.nus, as " byproduct material") or of SNM in originating and the receiving Compact this consideration will be satisfied by tailings impoundments.
should be obtained if the waste is going the second demonstration discussed in Appendix A of to CFR part 40 anywhere but a designated Regional section 5 above, presents criteria for the disposal of facility. Although this is not specifically Therefore, demonstration of the first 11a.(2) byproduct material.These a health and safety issue, it is an issue 3
three findings discussed in section 5 criteria. to properly dispose of this that could cause problems for the 1
chove (health and safety, compliance material were developed based on the heensee and perhaps interfere with l
with appendix A. and no RCRA physical chemical and radiological ultimate reclamation of the tailings. As a problems). should result in the fourth characteristics of the material.De basis result. the policy shculd include a finding (DOE acceptance of title) being for most of the requests to commmgle requirement that the licensee's submittal met. However, there is one remaining non.11e.(2) byproduct material in Provide evidence of the Compacts' concern related to DOE's acceptance of tailings impoundments is that the approval of the proposed disposal.
title to tailings impoundments proposed materialis similar in b.De material being proposed for containing non-11e.(2) byproduct characteristics to 11e.(2) byproduct disposal in tailings impoundmen ts is material None of DOE's response to material but does not meet the material subject to the Commission's NRC on this question contains an definition, which is based on process authority under the Atomic Energy Act.
unequivocal statement that. if NRC and history, rather than characteristics.
It is mostly, if not all soil contaminated determines that the above discussed Because of this similanty to 11e.(2) with uranium, thorium. and associated concerns and criteria are satisfied. DOE byproduct material the enteria in radium (which is a decay product of will accept title to such a site. For appendix A are appropriate to use, to uranium and thorium) with radiological sxample. in the letter of November 6.
ensure safe disposal of this material, characteristics similar to those of j
1990. DOE stetes "At this time, we This premise is only valid for the tailings (11e.(2) byproduct material). The l
would interpose no objection if NRC types of materials discussed in section 4.
disposal of such materialis regulated by trent,ferred * * *." At a meeting on that is, bulk material whose primary to CFR 20.301 (10 CFR 20.2001 in the j
December 11.1990. NRC staff discussed radiological contamination is uranium, new part 2D). nat section states that no this issue with DOE and a possible DOE thorium, and radium in low licensee shall dispose oflicensed l
concurrence on individual NRC concentrations. Wastes contaminated material except by (a) transfer to an decisions to allow non.11e.(2) byproduct with byproduct material are sufficiently authorized recipient as provided in to material A=paaala DOE gM by different that this premise may not be CFR part 30. 40. 80, et 70. or 72; or (b)
( loner dated Deoseber 34.1sso, that its valid.
disposal authorized pursuant to i 20.302 e
assas Fedesal Register / Vol. 57. Ns. 93 / WcA-d y. hday is. Saa2 / Notapes (30.2002) er part al. Part 91 provides
- 7. Amaults ofStaffAsolysis whether the feed matenalis ore. the regulations for the disposal of radioactive waste seasived iron others.
NRC staffidentined b lauswing I*II*"8mg dediastsen of ere usuet be need:
while i 2EL302 (20.aont) aBow for es,seog.cgg, wig, map,egto aq.eeg Oreis a natural ornutrue matter that disposal by a homsene of n===ad for erect d=pa=1 of non-11e42) may be ansed and treated for the byprochset amterial in tallmes amaraction of any efies conserteents or materialin a ananaermet othewise i-- - "ts:
any other matter dress whsch sowoe authorized in the regulations.
- i. Eadi proposal will be tressed an its matetaalis extracted is a licensed Since the matermi proposed for indmdual ments, uramam er thorne mill.
disposalin todags impoundmaats wdl
- 2. The guidance discussed in sectmen 5.
be teamived freen homosess other &as will be followed. Specifically, for each
- 2. Determimetion of Whethat the Taed j
the impounenest ownerde CFR part et such co. disposal request, the staff will:
Materialls Maed Waste is he
'regulmion for such
- a. Rejecs the request if the non-11e.(2)
Nees to Fedessi Register motka disPoen W udw I su see hu l'ir -
saaterialis NAgtM waste.
.rendass: Far further explanation of this beu used by Emnem to depoor of
- b. Determine whether the roepseet is aseplex issue, see the decession their own wastes casite. It does not for bulk meterial contaminated with hpw escnon of die Staff Analysis that preclude disposal of rochoective waste has of saw merial. K du foUsers.
received from others. Section 3D.382 (in is fw byproduct usewid or if b proposed feed enMerid were i'
the new part 30), however, specifically SNM. detenusne if there is a assupelhas basardous or mixed weste,it would be limits &sposele eder that Port to reneen such as en innmechste health and subject to EPA regulation onder RCRA.
hcensed metenal generated in the safety concern, to pont the request. lf To avoid the marplexities of NRCTEPA heensee's activities, so it could not be es, a specific equest for appmot by the dual regulation. such feed meterial will used for the dispoemle discussed in this Commission will be orepared.
not be approved for procesemg at a
- c. Deterunine whether the proposed hcensed adu. N the boensee can show i
Paper. The new Part 20 became effective disposal wGl cause significent that the proposed feed material would on Jane 20.1 set, with discretion by add 6tional effects to public safety.
not be a basardous or mixed waste. if licensees to defer bnplementation until hanalth and the environneant.
not proposed for processmg at the mill, January 1.1993 (however, the
- d. Detersmane whether the proposed tble issue is resolved.
Commission has under consideration a disposal wG1 compronuse the Feed material exhibiting only a proposal to change the discretionary reclamation of the tailinge impoundment characteristic of hazardous waste implementation date to January L 1994). by determining whether comphance (ignitable, corrosiva, ructive. toxic)
Thus in order to allow disposal of with the reclamation and closure criteria would not be regulated as hazardous non 11e.(2) byproduct matenal at a stated in to CFR part 40, appendix A.
waste and could therefore be approved tailmes impoundment, either a part 61 w dlbe m e n d.
for recycling and extraction of source review would have to be performed and
- e. Not approve the toquest if the non.
a license under 10 CFR part et would 11:42) byproduct material contains material. However, this does not apply to residues from water treatment, so have to be issued to the mill operator, or hasardoos constituents regulated under an exemption to sudi a review and RCRA.
acceptance of such residues as feed hcense would have to be granted. The
- f. Notify DOE (with an opportunity to material will depend on their not being hazardous or mixed waste. Additionally, part 61 license to allow disposal of the P
C'"""#8I 8Pp *
- b f* M & PW8L If proposed W matwial contained a non-11a.(2) byprodact anatenal m the P
tailmes impoundment would be in 3.The licensee most provide waste listed under Subpart D (281M) h of 40 CFR It wodd be a basardous addition to the amendment to the part 40 ht *pproval by the waste and should not be approved.
heense authorizing recetyt of the n
- material, junediction the weste originates as well
- 3. Determination of Whether the Ore is as approved by the Compact in whose Being Processed 7,!....,Yforlis The besic objectives of pans 40 and jurisdiction the disposal site is located.
SoureMoterialContent 61 are the same: protection of public
- 3. Approval of the request will be health and safety and the environment accomphshed through an amendment to For the tailings and waste from the by disposal that controls and isolates the part 40 license of the impenndment proposed processing to qualify as 11e.(2) the wastes for long periods of time. Part byproduct amatenal the ore must be owner.
61.6 of title 10 allows for exemptions processed prunardy for its source-from the requirements of Part 611f such py,
,,,g gggen
.n g,, go, material content. There is concern that an exemption wdl not endanger life or of uren6um ase Feed asmoness Gener Dion wastes that would have to be disposed
,mtural Ores property. In order to avoid separate part of as redsoective or snized waste would 40 and 61 reviews and licenses for the Staff reviewing licensee requests to bo proposed for pracaemmf at a uranium disposal of non-11e.(2) byproduct procoes alternate feed matenal(material mill prunanly to be able to dispose of it material in tallings impoundraents, an other than natural cre) in uranium mills in the tailings pae as 11a42) byproduct exemption under Part 61.6 will be should foDow the guidance presented matenal.in determining whether the granted for each such proposed below. Besides reviewing to deterndne Proposed processing was pnmanly for cha=% that meets all of the other compliance with appropnate aspects of the source-matenal content or for the reqmrements diarumaad in this analysis. appendix A of to CFR part 40. the staff disposal of waste. either of the following The basis for such an exemption is that should also address the followmg issues: tests an be used:
the proposed disposal wiH nm endanger L Determination of Whether the reed
- a. Co.disposaltest. Determine if the life and property by virtme ofits meeting Moteriolls Ore feed maaerial would be approved for the criteria A=e-d in this analysis disposalin the tadags impondment (which includes demonstrating that the For the tailings and wastes from the. under the guadanos=== d in the July 1
renlan==Ha= and cleeurs attena in proposed processing to qualify as 11a42) 27.18es.ammereeshan from Hugh I.
byproduct material. the feed matenal Thompson to Aobert D.Marem. er appendix A ao part og willbe met).
must qualify as " ore." In determinlag subsagemstsevisions(aq asdesenbod
Federal Engster / Vol. S7. Nbcs3 / Wednesday. May 13, 1932 / Notices 20631 in Port A of this notice).Ifitwoo}ditt '
the State or Federal Govermnent for of, to maintain long-term custody of. and can be concluded that if a mill operator perpetual custody and memtenance.
serveillance over, the byproduct proposes to process it, the proosseing is During the past three years, several material and the land used for its Prunarily for the sourcs-matenal additional requests for approval of A=pa==I De AEA currently designates content. & material would have to be alternate feed materials have been the Department of Energy (DOE) as the h
P ysicauy and chemically similar to received. Decisions on those requests Federal " custodial agency." However.
11e.(2) byproduct material and not be are pendme until development of a the UMTRCA specificauy referred _ only subject to RCRA or other EPA genenc agency position.De analysis to 11e.(2) byproduct material, and hasardous weste segulations, as addruses the need for a definition of contains no provision aHowmg for the discussed in Part A.
the term ' ore" as used in the definition transfer of custody or title of any other
- b. I u certification aest. If the of byproduct matenalin the Uranium matenal. While tae apphcation of licensee certifies under oath or MiB Taihngs Radiation Control Act of section 151(b) of the Nuclear Waste affirmation that the feed material: (1) is 1Ns (UMTRCAl. and for critaria to policy Act could aliot this issue in a l*ing reclaimed or recycled in acconi deterenne if mill processing wastes from specific ceae. It does not provide a legal with RCRA. or does not contain RCRA alternate feed matenal wiu meet the basis for avouhng the labeling of a hazardous waste; and (2)is to be requirements for byproduct material taihnes disposal
- =4==nt as either iE-E -- Prunanly for the recovery of under a 10 CFR part 40 heense, a mixed waste faciuty or a low-level
{
uranium and for no other prunary purpose. it can be accepted.
1 Wad weste A=pa==I facihty with the complex regulatory burdens these labels carry.
If it can be deterunned, using the N UnfrRCA amended the AEA to One of the purposes of the guidance is to aforementioned gudence that the include uranium and thorium mill avoid these consequences.
Proposed feed material meets the tailings and other wastes from the The term " alternate feed materials" is defmition of ore, that it will not milling process as material to be used k indicate source of uranium or introduce a basardous waste not licensed by NRC. Speci6cauy, the thorium (throughout this analysis otherwise examipted. and that the definition of byproduct material was references 2 uranien miHs or ore pnmary purpose of its processing is for revised in section 11e of the AEA by should be taken 2 apply k thorium its sourcegnatorial content. the request addag' mille or ore, also). for a mill. that are not can be approwd.
And (2) the taihn8s or wastes produosd by natural are (ore is not defined in the NRC Staff Analysis of the Use of the pereenen or concentranon of urenmm or AEA norin UMTRCA). NRC staff has Uranium MiB Feed Materials Other
- '6"Etma 88FON i -
d Pnastdy for approved requests. in the form oflicense H8 88""* E888"*l **atent-Dan Natural Oues amendments, to allow processing of Such byproduct material faciudes all alternate feed materials in uranium L Introduction the wastes resulting from the milling mius.& requested license De Nuclear Regulatory Comodesion process, not just the radioactive amendments genernuy were to allow the (NRC) and Agreement States have components. In addition, title 11 of mill to use feed materials that were received, and in some cases approved.
Uhf!RCA amended the AEA to either processing wastes such as those requests to allow a uranium adil to explicitly exclude the requirement for derived through the extraction of other process feed material that was not EPA to permit 11e.12) byproduct material elements, or the residues from mine-natural (native. rsw) uranium ore and under the RCRA.The definition and water treatment.
dispose of the resulting waste in the RCRA exemption of11e.(2) byproduct
& following are examples oflicense facdity's tailings img-
- t. in those material contrasts significantly with the amendments approved in the past:
cases, the feed material was genereuy situation for source material and low-either processing wastes from other level radioactive waste (LLW). where
- 1. pmcessing Wastes Fnun Othe Opem hns extraction procedures or the residues only the radioactive component is from mine-water treatment.Dese regulated under the authority of the
& Rio Algom (Usbon uranium mill requests were handled on a case-by-AEA. EPA has to address hazardous in Utah has had its source. material case basis, and approvals were based constituents in those matenals license amended several times in the on the interpretation that the proposed separately.
period from 1982 to 1987 so the mill feed material was refined or processed As a result of UMTRCA. the NRC could receive alternate feed materials.
ore. This designation of the feed amended to CFR Part 40, to regulate the h mill was authonzed to use material as ore is critical to the uranium and thorium tailings and processing wastes from: a uranium determination of disposal methods. His wastes from the milling processes.Dus, hexafluoride conversion facility, a ste ns from the definition under section under normal operation, all tailings and niobium-tantalum recovery facility, and 11e.(2)of the AEA whichlimits wastes in an NRC or Agreement State from an yttrium.lanthanides recovery byproduct material ongin to " ore licensed mill producing uranium or facility.h materials were processed primarily for its source thorium are classified as "21e.(2) radiologically consistent with the material content."
byproduct material" and are disposed existing tailings, but. in the first if the alternate feed material does not of in tailings piles regulated under part example, the fluoride was in higher meet the definition of ore, or is not 40.Dey are not subject to EPA concentration (greater than one percent) processed primarily for its source regulation. under RCRA. However. if than in the existing tadings. In 19n7 material there are two concerne.%e material that did not qualify as 11e.(2)
NRC also authorized the Quivira Mming first is that complicated, dual regulation byproduct material was placed in a Company to process raffinate sludge of the tailings pile by both NRC and the mill's tailings impoundment. any from a uranium hexafluoride conversion Environmental Protection Agency (EPA) hazardous constituents it contained plant.De uranium content of these under RCRA could result.De second could lead to regulation by EPA.
wastes (the yttrium-lanthanides wastes concess is that the aquested activity he UMTRCA also required either the averaged 1.17 percent and the uranium might jeopardine the ultimate transfer of United States, or the State in which the hexaDuoride waste streams o.e to s.7 the reclauned tauines impounskment to byproduct material has been disposed percent) was hisber than the average
I 30582 Fedesel Regater / Vai. 57. No. 93 / Wsdnesday. $ day 13. 1882 / Notaces actaral are = - H in the United Neubar the AEA nor to CFR part e frasi which sowce masenal as entracwd m a States.
conamnes a derasution of"are" as at hoensed areanum = lawnuei mit
- 2. Wastes Fran Trestment of Mine appeam an the defasnues ef ne42)
W ater bypmduct material The term 'unmimed Two mejorconsidmetsens that went and unpmcessed are" is, however.
into this proposed de6mtion of ore were:
Soane annes have to be dewetared as denned separately in part 40. in retsuen 1.lt is broad enough to include a wide the shahs or pits Gli wMk groeid.eestar to the exempoco in to CFR 40.u(b) for venery of feed materists.
This water often costaans dissolved sosarce matanal in ore, as; L The defiantyyn centusses to be tied coristilsents as a raeult of flow through into the nedsar fasel cycle. Because the and contact with are bodaes. k snaat Ore laits natuse) fone prior to sery extractsen of uteruum in a hcensed saill therefore be trentad before it can be pesosestag, such as gnadsag. roasting er remains the pnmary purpose of discharged oGaeta. Tsestrooms is often benef metag, or refamme, processing the feed material. It excledes via ion.ezchange cal=== whis
.g.k fact that the term "any are",
secondary arenren ande-stream rathe concentrate high levels of uranium on
,, r than "untermed and unprocessed recovery operamens at antis processing rasms or the shasta.Several mills is need in the deGmtion of 11e.(2) m for eher metalsMus tailings from pntern Nadaarlac, Spid Back, bypmduct matuial implies est a and side-strosas operations at facilities Wyommg. and Atlas hals Corp
- broader range of feed materials could be that are not hoensed as urenien or Moab. Utah) have obtained lacanae processed in a mitt, with the westes still horsom sulla, would not meet the sinendment and g m these being considered as 11e.(2) byproduct definition of11e42) byproduct material.
residues / wastes esoush ee amH.
m*i,3,3 Although the inwnt of Congrees to The NRC staff approved the legislative history confirms the defiams ne42) 6 a mewrial pmcessing of eew alternate feed validity of a broad interpretation of the appeem to how ban to moompees ee matwiela, considenag eam to be
,,,,.any are." The definition of 11e42) wastes fraum all feed meterial processed rzfined and processed are.Dns byproduct material as arismally Primarily for Ms sauce.matenal content dzsignation as are is essentaal so that presented in UMTRCA was:
two sigadicenHesses muk from ee the residue from uranium processing can ne mehees er weseos prodmeed by the proposed dsRattoon of ore.
qualdy as 11e42) byprodact matenal for
- ''h*"C'"C'"t*"'I""""*'
Since sens of the feed material could the reasons stated eerber. With this thwium fran any source metenet santain baserdens components,in interpretation. the resuhant millms However, there was a concern that addition to source material, the first wastes were legitimately classified as tailmes resultang from the processag of significant issue is whether material that would otherwise have to be disposed of 11e42) byproduct asternal.
ore containing less than om paronet as hazardous waste can be processed in However, because there is not a uraniam (the minamum concentration d2fimtion of are in 10CFR Part 40 and that would still meet the defmition of a uranium mill and disposed ofin the tailings impoundment as 11e.12) because of the potential policy issues source material) would fall outside the byproduct asterial. If such feed saaterial involved in approving the procesamg of definition. To preclude that possibility,it were not processed at a uranium null. it feed malenal other than natural cre, the was suggested that the words "any ore would be classified as mixed waste stiff has put recent requests on hold, processed pnmarily for its source pendmg estabhshasent of an agency material content" be substituted for (radioactivity regulated under AEA.plus position.
"any source material."
hazardous weste regulated by EPA) and would thus have to be d=fw=ad of in a 1 D8C"88I#"
la its decision in a case involving mined waste incihty.
whether certaan materialin and near the To deteranne if the feed amterial Uranium mills were designed and West Chicago,111inois, facihty of Kerr-operated to process natural uranium-McGee Chemical Corporation (Kerr-would be regulated as hasardous waste, one must first determine if it swets the btaring rock (i.e ore). usually mmed McGee Corporation v. f.'RC. 903 F2d 1 deranition of solid waste. since nserby. m order to produce uranium (in (D.C. Cir.1900) was 11e42) byproduct hazardous wate is a subset of solid the form of yellowcake). There usually matenal or source material, the United waste. under RCRA.The EPA was no question of other feed matenal States Court of Appeals arrived at a regulations that implemented RCRA or what constituted ore. However, there broad interpretation of the definition of state (40 CFR 261.1-261.4) that solid have been occasions when other byproduct matenalin which the concept waste is any discarded material not matenal has been proposed for of ore is not restricted to native rock. It excluded in the regulations and includes processing at uranium mills, also cited Chairman Hendrie's recycled material. A materialis recycled Mill tailings that meet the definition of testimony before Congress that led to if it is reclaimed. Reclaimed is dermed us.(2) byproduct matenal must be the wordmg that now exists,in the AEA. as. "* *
- processed to recover a usable st:bilised in accordance with the defming 11e.(2) byproduct material as product * * *" Since alternate feed entena in appendix A of to CFR part 40, estabhshms that a broad reading of the material would be reclaimed at the mill.
but are not subject to separate defmition was in hne with it would be considered sohd waste. it regulation as 1.1.W or as hazartlous Congressional expectations, also would be classified as byproduct.
weste under RCRA. The wastes and The previous discussion leads to the which epa defines as."* *
- not one of tadmits produced in a urshium mill conclusion that the term " ore"in the the pnmary products of a productive proceestna ureamm-bearins rock from defmition of ne.(2) byproduct material process * * *" However. 40 CFR
- arby munes would meet the definition can be apphed to a broad spectrum of 261.2c(3) provides that byproducts that of tie 421 byproduct matenal However, feed matenals from which uranium or exhibit only a charactenstic of e is not obvioen. ironi the definition thorium is extracted. In view of the hazardous waste (ignitable, corroswe, alone, whether wastes produosd from foresoms. NRC staff has recommended 9'ocesemg feed matenet that is a definition of ore as follows:
auctive, toxic) and that are bemg I" 'h*
reclaimed are not regulated as g
4I oes a n eurat er
,e matter that may hasardons wasas. To support the bM*d ""'nal.
l'*===8 *=d uneend tar une emarmeem d *seclaimed" provimien,at seest be any w en easema er==v se=r manner demeneersted that there is a known
Fedseat Rapster / Vcl. 57. W. 33 / Wedneedsy. Msy 13, 1992 / Notices 3B533 market for the meterial and documentation provided. auch as processed prunarily to convert what 150.15e(s) pnor to the State terminatmg contracta abowing that a secand person would have been Lt.W or mixed wate the hanse.
uses the material as an ingredsset in a into 11e.(2) byproduct matenal would Productaos process. An enception to this not meet the definition of11e.(2)
R"'h'I! M'il'"d' 'h h d'Y byproduct material.
exemPtson is sludge from a water treatment plant. 30 resedues from mine-Therefore, as part of its review of a wakt treatment would achpaaldy.
licensee proposal to process matenal Since feed matenalis being und as Other than natural ore, the staff would
- "#"N#"70*
8/08 0I have to determine whether the (ura u is o i
ng ng Pnmanh b N wum-h So e n
reclauned and be would meet the EPA mmption to regulation as
. isYe erminat w
o o d ave
'## * *8 "I charactenstic bazardous waste. except to be made on a case specific basis, but ' " ** '"
if it were mine-water tasalment residuta. either of the following tests can be en' ed:
)
W p*oposed feed matanal would 1.
spm test:if the feed matenal still be hazardous waste ifit contained a would be approved for disposalia the (Docket see, smi I
waste listed under subpart D (part tasimps impoundment, under the En6eryr Operatione, Inc.t teoesee of 261.30.33) of the EPA regulations. It is guidance contamed in the July 27,1988.
Constalerstlen of leeuence of unlikely that faad matarial for uranium mmendwn imm Egh 1. hmpen mills would contain such substances.
ben a Manin, or subsequent "i z to Facility Operating Assurances need to be provided that si ns. H can be concluded eat if a
. Proposed No algnlBoemt Consisimlion Determination.
these proposed feed materials do not m
operate pmposes to pmcess it. the and C,T M, for Hearing /
contain RCRA or TSCA liased hazardous prwasains is prunenly for the source.
T wutu.
material content.h matenal would b U.S.Wuclear Regulatory Constituents with hazardous have to be physically and diennically Commissio characteristics that were in feed simaar k 11e.(2) byproduct mekrial and considenas (the Commissiorf)is ce of an amendment matenals processed at a uranium mill node subject 2 RCRA or other EPA would eventually 6ad up in the tellings hasanim wasm mgulations, as to Facility Opgrating Liceans No. NPF-material. As such. they)would beimpoundment as 11a.(2 byproduct discussed in this notice.
R M h Estegy %tions. Inc.
(the licensee). for operatiqh of the Grand 2hnsae certificot, tast:If b Colf Nuclear Station. Unii 1. located in regulated under appendrx A of to CFR licensee certifies under oatn or Geh M. Mm/ssippi.
part 40 which provides for momtonng affirmation that the feed aseterial:(1)is, h proposed amendpent would i
and control of hazardous constituents.
being rectanned or recycled m accord screase the trip astpo$ts of four circuit
,I he, the ultimate fate of hazerdous with RCRA or does not contain RCRA breakers for the
' pool
- enstituents that might be in arenrum hazardous waste; and (2)is to be makeup (SMPU) v j
mill feed materral would not escope processed primanly for the recovery of in response to NR Generic Letter as-regulatory overmsht.
uranium and for so other primary
- 10. the hcensee has $lentified the need The second significant issue that must purpose, it can be accepted.
to replace four valv6 actuators for the be addressed is the potential of convertma material that would have to
- d. Results ofStaffAnofysi, N vah widi rg y a m us k rs.
During the des nie process,it was be disposed of as LLW or adxed waste The staff has determined to issue determined that requiredlarger into ere. for processing and disposal as guidance on the dermition of ore and on valve actuator ' tors wbuld require ne.(2) byproduct material. N the issues related to feed material that circuit breakers thlushpr trip possibility of converting such wastes to could be considered waste. Although setpants.
trip setpoints are 11e.(2) byproduct material con be very Agency guidance does not carry the specified in
' 1 Specifications attractive to owners of such material.
weight of a regulation, the staff (TS), and the I mes6 request a TS This is because of the high cost of concludes ht the time and resources change to t the use or higher disposing of LLW and especasuy of required for rulemaking on the dormition trip setpoin Allowing for e standard mixed waste. An owner of such material of ore would not be justified in this
- 30. day F Register noti 4e would could pay a mill operator =ame==e=Uy instance.Wre are only a few nulls that delay appro less to process it for its uranium content are in active or standby status and that beyond the, el of the requested change uled end of the current and dispose of the resulting 11a.(2) would be able to process alternate feed refueling tage.N staff concludes byproduct material than to dispose of material. and it is estimated that the that the li has pecmded'an the metenal as waste at sa appropnate Agency would recove only one or two aa:eptab basis forits request and that 3
f cihty. Utah ofBcsals have already such requests a year. However, the staff exigent efrcumstances exist. j j
expressed concern over " sham A=pa==t-will include the definition of ore the next Beforefissuance of the proposed (i.e consertang a millinto a LLW tirne amendments to to CFR pan 40 are license mendment. the Commisbion disposal site).
proposed.
will ha e made findings required by the The proposed definition of ore wedd issuance of the guidance would also Ato Energy Act of1954, as amended i
include any matenal froen which source assist Agreernent States. As a policy, the (the t) and the %ami== ion's \\
r matenalis extraceed in a hcensed mill Agreement States are not required to cons.
and woehl thes seem to allow such adopt this giudance as a reatter of t
Th6 Commmemn has made a sun deterummerion that the amendmentgomed sham desposals. Hmuever the delimition compaeduhty.However.if an Agreement cf us.(2) bypredact amaterial regeres State implements a similar policy, the regfest no hema thet the are be processed ** *
- State will have some ar r== est co prunanirser as sensee meestis!
NRC willnot queesian he pohcy 2
,g, g,p
,y,,,g,g,,,,,,
==an=ar and thus would met perma s di pseems reviews and in mak=g es mm of en kciuty in shassW bestr'enel that was deternameten as sogamed ta to CFR aamudsacs wie the pseposed i
b
E U. S. Nuclear Regulatory Commissico Staff Response to Public Comments on
" Revised Guidance on Disposal of Non-Atomic Energy Act of 1954, Section lle.(2) Byproduct Material in Tailings Impoundments" and
" Position and Guidance on the Use of Uranium Mill Feed Materials Other Than Natural Ores" INTRODUCTION The U. S. Nuclear Regulatory Commission staff developed two proposed guidance documents:
" Revised Guidance on Disposal of Non-Atomic Energy Act of 1954, Section lle.(2) Byproduct Material in Tailings Impoundments"; and " Position and Guidance on the Use of Uranium Mill Feed Materials Other Than Natural Ores." These documents and their associated staff analyses (hereafter referred to as " Staff Analysis") were. published in the Federal Reaister on May 13, 1992, and public comments were requested on the proposed guidance.
Twenty-four letters were received in response to the notice. Ccaments were received from Federal agencies, States, industrial groups, NRC licensees, a member of the U.S. Congress, a law firm, an environmental group, and an individual. As expected, the comments varied significantly, depending on the affiliation of the commenter.
Several commenters indicated that the proposed guidance provided too much flexibility, while other commenters believed that the guidance was too restrictive. Some commenters supported the guidance, while others thought it needed major modifications.
'All of the comments were carefully reviewed, categorized, and grouped by subject areas. Comments were categorized based on which guidance document was addressed: Category A addresses comments on Part A of the guidance document, pertaining to non-lle.(2) byproduct material; Category B addresses comments on Part B of the guidance, pertaining to alternate feed materials; and Category C addresses comments that are applicable to both Parts A and B.
The following major comment groups were identified:
Category A - Disposal of Non-lle.(2) Byproduct Material A1.
Types of material to be allowed for disposal A2.
Relation of non-lle.(2) byproduct material to low-level waste A3.
Mixed waste issues A4.
Transfer of title and custody AS.
Uranium mill tailings impoundments as disposal sites A6.
Other disposal topics
.l 1
Category 8 - Alternate feed Material
]
Bl.
Definition of ore B2, Mixed waste determination for feed material B3.
Determination that material is to be processed primarily for source material B4.
Other feed material topics Category C - General Comments Applicable to Both Guidance Documents C1.
Comments Applicable to Parts A and B The comments in categories A, B, and C are summarized and discussed in the following responses to comments.
Included in each comment topic are:
(1) a list of commenters that presented one or more issues; (2) a summary of the comments and issues raised by the commenters; (3) discussion and response to the comments by NRC staff; and (4) any modifications made to the guidance in response to these comments.
The numbers in parentheses after the name of the commenter were assigned by the NRC staff during the comment review and refer to a specific comment.
RESPONSES TO COMENTS A1.0 Types of Material to be Allowed for Disposal A1.1 Commenters Umetco Minerals Corp. (3-1, 3-2, 3-3, 3-4)
Fuel Cycle Facilities Forum (5-2, 5-3, 5-4, 5-5)
Don & Hiller for Envirocare of Utah, Inc. (6-7) colorado Department of Health (9-1)
Office of the Governor, State of Wyoming (11-7)
Rio Algon Mining Corp. (13-1, 13-2)
American Mining Congress (14-5, 14-6, 14-8)
Washington Department of Health (16-2)
Utah Department of Environmental Quality (20-4, 20-5, 21-4, 21-5)
A1.2 Summary of Issues Eight commenters expressed opinions on various types of material that should be authorized for disposal in tailings impoundments. A mill operator and two industrial groups expressed agreement that several types of materials identified in the Staff Analysis should be permitted in tailings impoundments.
Several commenters opposed aspects of the policy that would either exclude or severely restrict other types of waste for disposal.
Six commenters expressed opinions on th prohibition of naturally occurring i
and accelerator produced (NARM) waste from tailings impoundments. Wyoming and Utah agreed that NARM wastes should not be allowed in impoundments.
Colorado and Washington, Rio Algom, and the American Mining Congress (AMC) argued that NARM wastes and mine wastes should be permitted in tailings impoundments.
2
Wyoming agreed with the policy to allow disposal of 11e.(1) byproduct material (normally considered " byproduct material") or special nuclear material only when the Commission determines that there are compelling reasons to do so, while Utah objected to even the possibility of such disposals.
Rio Algom, Envirocare, and the AMC expressed the opinion that NRC should more
{
clearly define the materials that would or would not be allowed to be disposed 4
of in tailings impoundments. They were primarily concerned with defining and identifying NARM wastes and differentiating them from mine wastes and other
)
radioactive wastes that would be permitted in. impoundments.
A1.3 Discussion and Response to Comments NARM wastes: The policy excluded NARM wastes because of concerns related to NRC's regulatory authority over those materials and over sites containing those materials.
This was discussed in the Staff Analysis. To clarify what material will be permitted in impoundments, rather than define NARM, the policy has been revised to indicate that only radioactive material regulated by NRC under the Atomic Energy Act (AEA) will be permitted.
lle.fl) byoroduct and special nuclear material: The staff agrees with Utah that it is unlikely that there would be any circumstances where it would approve disposing of 11e.(1) byproduct material or special nuclear material in an lle.(2) byproduct material tailings impoundment. Nevertheless, staff seeks to have the flexibility to allow such a disposal if special circumstances warrant.
In any case this disposal would require specific Commission approval.
A1.4 Modifications to the Guidance Item 2 of the guidance has been revised to state that radioactive material not regulated under the AEA, rather than NARM, shall not be authorized for disposal in a tailings impoundment.
A2.0 Relation of Non-11e.(2) Byproduct Material to Low-Level Waste A2.1 Comenters Umetco Minerals Corp. (3-1, 3-2, 3-3, 3-5)
Fuel Cycle Facilities Forum (5-1, 5-2, 5-3, 5-4, 5-6)
Don & Hiller for Envirocare of Utah, Inc. (6-1, 6-8)
Crain, Caton & James for Rhone-Poulenc Inc. (7-1)
Office of the Governor, State of Wyoming (11-5)
Rio Algom Mining Corp. (13-3,13-4)
American Mining Congress (14-7)
Utah Department of Environmental Quality (20-8, 21-8)
A2.2 Summary of Issues l
Seven commenters responded to Item 8 of the guidance in Part A of the Federal Reaister notice (FRN), which requires approval of the disposal by the Regional Low-Level Waste (LLW) Compact in whose jurisdiction the waste originates, as well as the one where the disposal site is located. Wyoming and Utah agreed 3
i
with the requirement. The fuel Cycle Facilities Forum supported the requirement of LLW Compact approval, except for several categories of waste that both it and Rio Algom contended should not be subject to such approval, because of their similarity to lle.(2) byproduct material.
Rio Algom expressed the opinion that LLW Compact approval should not be required when the non-11e.(2) byproduct material and the impoundment where it is to be disposed of are owned by the same company.
Rhone-Poulenc opposed the requirement of LLW compact approval as unnecessary and restrictive, stating that Compacts would have economic incentives to j
disapprove such disposals and force such wastes into their LLW disposal sites.
Envirocare raised several issues related to the Low Level Radioactive Waste Policy Amendments Act of 1985 (LLRWPAA).
It objected to the language in the Staff Analysis, which did not clearly state that Compact approval is required by law.
It stated that approval of the Governor of the State in which the disposal impoundment is located should be required, in addition to approval by l
the Compact.
It also stated that the guidance should authorize the State or Compact, in which the impoundment is located, to charge or collect fees applicable to disposal in a LLW facility, under the LLRWPAA.
Five commenters responded to Item 10 of the guidance, which discusses the regulatory mechanism to authorize disposal of non-lle.(2) byproduct material in tailings impoundments. Umetco, Rio Algom, and the Fuel Cycle Facilities Forum supported the position that an exemption to the requirements of 10 CFR Part 61 be granted under 10 CFR 61.6.
The AMC stated that a joint 10 CFR Part 40 and Part 61 license would be redundant.
Envirocare stated that the guidance should expressly provide for a hearing to address the propriety of the Part 61 exemption and other issues that may need to be addressed.
A2.3 Discussions and Response to Comments LLW Compact aDDroval: As stated in the staff analysis, LLW Compact approval is required because non-lle.(2) byproduct material suitable for disposal in an lle.(2) byproduct material impoundment would likely be LLW and within the purview of the States, under the LLRWPAA.
The origin of the material (e.g.,
mine waste, secondary process wastes, etc.) is irrelevant to this issue, unless the material can be shown to meet the definition of byproduct material under Section lle.(2) of the AEA.
If the material can be shown to be lle.(2) byproduct material, it can be disposed of in a tailings impoundment without meeting the requirements of this policy. Similarly, ownership of non-11e.(2) byproduct material is irrelevant to the issue of whether it is LLW and thus within the purview of LLW Compacts.
We agree that there may be economic incentive for a LLW Compact not to approve disposal of non-11e.(2) byproduct material in an impoundment, thus forcing it to the Compact's LLW facility.
In any event, as discussed above, under the LLRWPAA, the material would be within the purview of LLW Compacts.
LLRWPAA issues: We agree with Envirocare that the requirement in the guidance for approval by LLW Compacts stems from the LLRWPAA, as stated in the staff analysis.
Since the guidance is clear on the requirement, we see no need to revise it or add a statement tying it to the LLRWPAA.
Gubernatorial approval, 4
however, does not follow from the LLRWPAA and therefore, will not be added to the guidance. There have been several legislative proposals for.such gubernatorial approvals in recent years; NRC has gone on record as considering these proposals unnecessary, and they have not been supported by the U.S.
Congress.
The issue of fees and surcharges should be worked out between owners of non-11e.(2) byproduct material, impoundment operators, and LLW Compacts.
NRC will neither expressly authorize nor prohibit them.
(However, NRC fees and other charges will be handled similar to that for any other mill license amendment.)
Joint Part 40 and Part 61 license: We agree with the AMC that a joint Part 40 and Part 61 license would be redundant and do not anticipate such a joint license.
An exemption to Part 61 (and to a Part 61 license) will eliminate the need to issue such a joint license.
Conduct oublic hearina on Part 61 exemotion: We do not agree that the grarting of an exemption to Part 61 under 10 CFR 61.6 should require a mandatory hearing. However, since the mechanism for authorization of a disposal of non-11e.(2) byproduct material in a tailings impoundment is an amendment to a Part 40 license (per Item 10 of the guidance), there would be opportunity for a hearing, in accordance with 10 CFR 2.1205.
A3.0 Mixed Waste Issues A3.1 Commenters Cabot Corp. (4-7, 4-8)
Don & Hiller for-Envirocare Inc. (6-3, 6-10)
Colorado Department of Health (9-2, 9-3)
American Mining Congress (14-4)
Texan Department of Health (17-1, 17-2)
Utah Department of Environmental Quality (20-7, 21-7)
Office of Environmental Restoration, U.S. Department of Energy (23-4)
A3.2 Summary of Issues Three commenters responded to Item 5 of the proposed guidance, which states that the licensee must demonstrate that there are no Comprehensive Environmental Response Compensation and Liability Act (CERCLA) issues.
Envirocare and Colorado indicated that meeting the requirement is difficult, if not essentially impossible.
Cabot Corp. requested that NRC clarify its concerns on this issue.
The AMC, Colorado, and Cabot Corp. recommended that NRC and the Environmental Protection Agency (EPA) work together to formulate consistent, non-overlapping mixed waste regulations and cooperate on the design and review of mixed waste disposal facilities, so that mixed waste disposal could be allowed in tailings impoundments.
Envirocare Inc. recommended that EPA be given the opportunity to comment on the propriety of the disposal of non-11e.(2) byproduct material 5
1 e
and the propriety of relying upon Part 40, Appendix A for the management of the combined waste materials.
Four commenters specifically addressed NRC's guidance in relation to EPA's regulations.
Texas _ requested a list of constituents and their limiting concentrations (and analytical methods) so Resource Conservation and Recovery Act (RCRA) waste could be differentiated from byproouct waste.
Texas also stated that the phrase in Part A, Section 6.1 of the FRN, "...containing hazardous constituents regulated under RCRA," is ambiguous and should be replaced by "...containing waste streams classified as hazardous under RCRA."
Utah said there must be a sampling protocol for incoming shipments, to ensure that no RCRA wastes were disposed of.
The Department of Energy (DOE) was concerned that the tailings impoundment should not be subject to Any of EPA's regulations and that there be only one regulator at a site.
A3.3 Discussion and Response to Comments CERCLA issues: NRC staff realizes that demonstrating that there are no CERCLA issues related to the proposed disposal could be difficult.
However, the staff's concern is that sufficient documentation must exist to provide reasonable assurance that CERCLA remedial action will not be mandated later at tailings impoundments. The acceptance of only radioactive non-11e.(2) byproduct material, regulated under AEA, will assist in providing that assurance.
Federal inter-aaency cooperation: The NRC staff agrees that more inter-agency coordination with EPA to resolve mixed waste issues is needed, and NRC will continue to werk with EPA, as resources permit, to resolve significant issues.
Relation to EPA reaulations:
The guidance is general and is not' intended to provide all implementation details. Guidante exists in other documents regarding concentration limits and~ procedures for sampling and testing.
The phrase in the staff analysis, "...the staff would not approve co-disposal of_ non-11e.(2) byproduct material containing hazardous constituents regulated under RCRA," was intended to convey the concept that the staff would not approve co-disposal of non-11e.(2) byproduct material that would bring the tailings impoundment under the purview of RCRA.
NRC staff considers that the tailings impoundments should not be subject to any additional EPA regulation as a result of the co-disposal of non-lie.(2) byproduct material [ tailings are already subject to regulation under 40 CFR 1
Part 192 and other EPA standards; in addition, tailings are subject to EPA regulation under Superfund].
Item 4 of the guidance, however, does refer to RCRA regulations or other EPA standards for hazardous or toxic wastes.
To further ensure that RCRA hazardous waste is not inadvertently disposed of in mill tailings impoundments, Item 4 has been-revised to indicate that the lle.(2)~ licensee also must demonstrate, for waste containing source material as defined under the AEA, that the waste does not also contain material classified as hazardous waste according to 40 CFR Part 261 or polychlorinated biphenyl according to 40 CFR Part 761. Thus, source material physically mixed with other constituents, would require the classification in accordance with 40 CFR Part 261, or 40 CFR Part 761.
(These provisions would cover material 6
L.
1 1
such as: characteristic hazardous waste; listed hazardous waste; and polychlorinated biphenyls.) The demonstration and testing should follow ac anted EPA regulations and protocols.
A3.4 Modifications to the Guidance Item 4 of the guidance has been revised to provide additional specificity to ensure that no RCRA material is included in the non-11e.(2) byproduct material.
4 i
A4.0 Transfer of Title and Custody j
1 A4.1 Commenters Don & Hiller for Envirocare of Utah, Inc. (6-2)
Colorado Department of Health (9-4)
Office of the Governor, State of Wyoming (11-1)
American Mining Congress (14-9)
Washington Department of Health (16-1)
Utah Department of Environmental Quality (20-6, 21-6)
Office of Environmental Restoration, U.S. Department of Energy (23-1)
)
A4.2 Summary of Issues When a mill tailings site owner has completed reclamation and decommissioning, the licensee must transfer title of the 11e.(2) byproduct material and the disposal site to DOE or the State where the site is located.
DOE or the State will then become responsible for the care and maintenance of the site, under the general license in 10 CFR 40.28. Two commenters expressed doubt that DOE had authority to accept title to the non-lle.(2) byproduct material at a disposal site.
Envirocare noted that the discussion in the Staff Analysis cited Section 83 of the AEA as the authority for the transfer, but that Section 83 only discusses transfer of lle.(2) byproduct material.
Utah stated that there are no other statutory requirements for the Federal government to take long-term custodial care of non-11e.(2) byproduct material and that doing so may be outside the scope of the AEA.
Two States asked for clarification or guidance on the technical findings that need to be made for DOE to take title to a tailings impoundment in which non-11e.(2) byproduct material has been disposed of. Colorado asked for guidance on elements that need to be addressed, stating that Sections C and D of Paragraph 5, " Previous Staff Guidance," offered no such details.
Washington asked for clarification of the statement that there be no groundwater restoration issues and whether this applied only to non-11e.(2) byproduct material disposal, or to previous (11e.(2) byproduct material) disposals at the site.
Two commenters expressed opinions on the mechanism to ensure DOE acceptance, for perpetual custody, of an 11e.(2) byproduct material site in which non-11e.(2) byproduct material has been disposed of. Wyoming proposed that the policy continue the requirement, contained in the previous guidance, that DOE (or the State in which the site is located) agree in advance to accept title to the specific site. Alternatively, Wyoming suggested that the 7
licensee be required to provide financial surety of the same kind required of an operator of a LLW disposal facility.
The AMC stated that providing DOE with an opportunity to comment on each proposed action to allow disposal of non-lle.(2) byproduct material is unnecessary. AMC stated that there are a
{
number of ways of obtaining generic DOE approval and concurrence short of requiring specific approval for each license amendment and suggested that the Chairman of the NRC work out an alternate approach with the Secretary of Energy.
DOE requested 120 days, rather than the 30 days in Item 9 of the policy, to comment on a proposed license amendment to allow disposal of non-lle.(2) byproduct material in an impoundment.
A4.3 Discussion and Response to Comments Authority for DOE to take title to non-lle.(2) bvoroduct material:
We agree with Envirocare and Utah that the Uranium Mill Tailings Radiation Control Act (UMTRCA) (and Section 83 of the AEA) do not discuss transfer of radioactive material, other than 11e.(2) byproduct material, to DOE. However, UMTRCA does not preclude DOE from accepting an 11e.(2) byproduct material disposal site that also contained other radioactive material.
DOE has agreed to accept custody of such sites, provided that NRC makes specific findings, as discussed in the Staff Analysis. Additionally, Section 151 (b) of. the Nuclear Waste Policy Act of 1982 authorizes DOE to assume title and custody of low-level radioactive waste and the land on which it is disposed of.
Since the non-lle.(2) byproduct material that would be allowed to be disposed of under this policy would be LLW (which is the reason that approval by LLW Compacts is required), DOE does have authority to accept title and custody of an lle.(2) byproduct material site in which such non-11e.(2) byproduct material has been disposed.
Clarification of technical findinas: We agree with Colorado that the discussion in 5. Previous Staff Guidance does not offer details on the technical elements that need to be addressed to allow DOE to accept a site with non-lle.(2) byproduct material.
Section 6.2, " Custody and Title Transfer" discusses findings that NRC must make to satisfy DOE and concludes that those findings will be satisfied by various technical reviews that are part of an NRC licensing review process.
However, the policy and the Staff
. Analysis paper do not, and are not. intended to, actually present guidance on technical elements of those reviews.
The statement related to groundwater restoration issues is in the context of
' disposal of non-lle.(2) byproduct material in tailings impoundments. However, Appendix A of Part 40 requires licensees to clean up groundwater contamination at 11e.(2) byproduct material disposal sites irrespective of whether non-11e.(2) byproduct material is disposed at the site, so the statement on groundwater restoration issues is valid for all 11e.(2) byproduct material sites transferred to DOE.
DOE / State aooroval of disoosal: The NRC staff agrees with Wyoming that an explicit, advance commitment from DOE or the State, to take title to a tailings impoundment in which non-11e.(2) byproduct material has been disposed of should be required, to preclude future problems of title transfer.
The 8
guidance has been revised to include a concurrence by the State or DOE, within 120-days'of the request, to take title to the impoundment after closure.
A4.4 Modifications to the Guidance Item 9 of the guidance has been modified to include, within 120 days, a concurrence by DOE or the State in which the tailings impoundment is located.
A5.0 Tailings Impoundments as Disposal Sites A5.1 Commenters Cabot Corp..(4-8)-
Don &' Hiller for Envirocare of Utah, Inc. (6-5, 6-6)
American Mining Congress (14-2)
)
U.S. Representative Wayne Owens, Utah (15-1, 15-2, 15-3)
Utah Department of Environmental Quality (20-2, 20-3, 21-2, 21-3)
A5.2 Summary of Issues Three commenters expressed opinions on the technical merits of disposing of non-11e.(2) byproduct material in tailings impoundments.
Congressman Owens stated that tailings impoundments were never designed for, and are unsuitable for, disposal of radioactive waste.
In contrast, the AMC stated that tailings impoundments are among the most attractive places to dispose of radioactive waste materials similar to uranium tailings and that the guidance should point out the advantages of using tailings impoundments for disposal of non-11e.(2) byproduct material. Cabot Corp. recommended a study of the characteristics of 11e.(2) byproduct material in impoundments and a comparison to source material and mixed waste.
If the materials are similar, Cabot recommended that NRC and EPA work together to make regulatory and legislative changes to allow mixed waste to be disposed of in tailings impoundments.
Envirocare of Utah raised two concerns related to standards to be applied to impoundments disposing of non-11e.(2) byproduct material.
Envirocare stated that licensees should be required to demonstrate that they have the capacity to dispose of all their existing 11e.(2) byproduct material before being authorized to dispose of non-11e.(2) byproduct material.
Envirocare also stated that an 11e.(2) byproduct impoundment owner requesting to dispose of non-11e.(2) byproduct material demonstrate that the entire impoundment will comply with the current standards in Part 40, Appendix A.
It was Envirocare's opinion that some older impoundments either do not comply with current standards or that NRC has interpreted standards differently for older impoundments.
Congressman Owens expressed general opposition to the use of mill tailings impoundments for disposal of wastes other than tailings generated at the site.
He stated that the proposed policy reverses long-standing NRC policy against such disposals at tailings impoundments. He also stated that the House of Representatives incorporated a provision, in H.R. 776, that would prohibit disposal of non-11e.(2) byproduct material at tailings impoundments, unless the governor of the State agrees to such disposal.
9
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Utah asked if a mill in " standby" status would be eligible to receive non-11e. (2) byproduct material.
Utah also stated that such disposal in Utah would require compliance with Utah facility 2 siting and land-disposal laws that may be stricter than uranium regulatory requirements for siting a uranium i
mill.
A5.3 Discussion and Response to Comments Suitability of tailinas imooundments for disoosals:
Staff disagrees that tailings sites are unsuitable for disposal of other radioactive wastes. As the Staff Analysis points out, radioactive waste that would be allowed in tailings impoundments under the guidance is similar to lle.(2) byproduct material in physical characteristics but doesn't meet the legal definition of Ile.(2) byproduct material.
The standards that are applied to such disposals, (i.e., Appendix A of Part 40), were specifically written for 11e.(2) byproduct material and are technically valid for other material with the same characteristics.
We agree with AMC that there are important advantages in disposing of non-lle.(2) byproduct material in tailings impoundments and discussed some of them in the Staff Analysis.
However, the guidance is meant only to guide NRC staff in the review of a licensee request to allow a specific disposal and is therefore not the place for a general statement on the merits of disposing of non-11e.(2) byproduct material in tailings impoundments.
We agree with Cabot Corp, that lle.(2) byproduct material in tailings impoundments are both radioactive and exhibit hazardous characteristics; the regulations in Appendix A of Part 40 specifically recognize this dual nature of 11e.(2) byproduct material.
Further, at least some material currently classified as " mixed waste" is similar in physical and chemical characteristics to lle.(2) byproduct material and therefore would appear, from a technical standooint, to be candidate material for disposal in tailings impoundments.
However, current legislation prevents such material from being considered for such disposals.
EPA and NRC have worked and continue to work on issues related to mixed waste and regulatory difficulties in its disposal.
Standards to be aoolied: We agree with Envirocare that licensees should be required to demonstrate the capacity to properly dispose of existing 11e.(2) byproduct material.
That demonstration would be part of the demonstration required under Item 7 of the proposed guidance, which requires the licensee to show compliance with the reclamation and closure criteria of Appendix A of Part 40. We agree with Envirocare that an impoundment owner show compliance with the current standards in Appendix A of Part 40. Again, that j
i demonstration is required under Item 7.
We disagree with Envirocare's statement that older impoundments are held to different standards than newer impoundments.
All reclamation plans for tailings impoundments are evaluated j
using the same criteria (Appendix A). Although methodologies to evaluate
{
compliance with A;;pendix A criteria have evolved over the years, the Commissior, nas detereined that unless significant health, safety, or environmental concerns are identified, it is not necessary to re-evaluate previNsly-approved reclamation plans.
1 Revrrsal of lono-standiro NRC colicv: Staff disagrees that the proposed e
guilance reverses a lons-standing policy against using uranium mill tailings 10
I I
sites for disposal of radioactive materials other than mill tailings produced at the site..There are two categories of such material; lle.(2) byproduct material not ~ produced at the disposal site and non-11e.(2) byproduct material.
I NRC has encouraged the disposal of lle.(2) byproduct material produced at 1
-in-situ mills into tailings impoundments associated with conventional mills, to prevent the proliferation of small disposal sites. Criterion 2 of Part 40, Appendix A specifically addresses this. As for disposal of non-11e.(2) byproduct material in tailings impoundments, the subject of the proposed guidance, NRC has had guidance in place since July 1988. The proposed guidance is an update of the 1988 guidance and can in no way be considered a reversal of that guidance.
H.R. 776:
NRC believes that requiring gubernatorial approval for disposal of non-lle.(2) byproduct material in tailings impoundments would be inappropriate because it would be detrimental to the development and implementation of national waste management strategies.
NRC staff believes that approval of' the disposal of non-lle.(2) byproduct material by regional LLW State compacts, rather than by individual States, would best ensure that neither national nor regional LLW programs are compromised. This provision was considered by Congress and did not survive final passage of the Energy Policy Act of 1992.
Elioibility of mills in standby status: Uranium mills in standby status are prime candidates to receive non-11e.(2) byproduct material, since their standby status allows them to resume processing ore. These sites would need to submit a license amendment request that demonstrated that the site could accommodate the material without significant effect to health, safety, or the environment and the site reclamation plan would need to be revised to address any impacts the additional material could impose.
St te reauirements for disposal site: We agree with Utah that Utah, or any other Agreement State with LLW licensing authority, could require tailings impoundments to meet State siting and land-disposal laws, before disposing of non-lle.(2) byproduct material.
NRC, however, would not enforce State regulations at an NRC licensed site. Additionally, an exemption to LLW disposal requirements (Item 10. of the guidance) would have to be granted by-the Agreement State in accordance with its regulations.
AS.4 Modifications to the Guidance Item 10 of the guidance has been modified to indicate that if the impoundment is located in an Agreement State with LLW licensing authority, the exemption of the non-lle.(2) byproduct material from regulation as LLW must be granted j
by the State.
11 i
A6.0 Other Disposal Topics A6.1 Commenters Cabot Corp. (4-9)
Don & Hiller for Envirocare of Utah, Inc. (6-4, 6-9)
Office of Environmental Restoration, U. S. Department of Energy (23-2,.23-3)
A6.2 Summary of Issues Cabot Corp. requested clarification on the level of documentation a licensee needs to provide in support of a request to dispose of non-11e.(2) byproduct material in a tailings impoundment. Envirocare was concerned that the guidance was not adequate to address the documentation, required of licensees, to demonstrate that the disposal of non-11e.(2) byproduct material will have no additional effects on health or the environment.
Envirocare indicated that a detailed environmental analysis would be required to address the transportation of the non-11e.(2) byproduct materials, and a new or supplemental environmental impact statement (EIS) would be needed for the disposal site. This commenter did not want the guidance to shortcut the National Environmental Policy Act (NEPA) and wanted any license amendment or exemption application to be subject to the environmental protection requirements of 10 CFR Part 51. The commenter also stated that the guidance may result in a proliferation of Part 61 LLW sites and may increase the number of waste transportation corridors.
DOE recommended that the guidance specifically preclude disposal of any materials that would compromise the long-term stability of any Title II site and also pointed out that the guidance should'not be applied to Title I sites.
A6.3 Discussion and Response to Comments Licensee documentation:- The prc, posed policy and accompanying Staff Analysis
'do not, and are not intended to, provide detailed technical guidance to licensees proposing to dispose of non-11e.(2) byproduct material in tailings impoundments.
Items 4 through 8 of the proposed guidance identify demonstrations or documentation that licensees must provide in support of a proposed non-11e.(2) byproduct disposal but do not provide technical details.
Section 6 of the Staff Analysis contains general discussions of the demonstrations, but does not actually present guidance on the technical aspects.
Detailed technical information is available in various NRC documents, including regulatory guides and technical NUREGs.
Health and environment: The staff agrees that a license amendment to allow disposal of non-11e.(2) byproduct material is subject to environmental review, under Part 51. Any license amendment requires an environmental report from the licensee under 10 CFR 51.61 and, under 10 CFR 51.21, an environmental assessment, unless it meets a criterion for categorical exclusion (10 CFR 51.22). The environmental review process would identify impacts from a proposed non-11e.(2) byproduct disposal, including transportation impacts.
Item 6 of the proposed guidance adds an additional constraint in that it
)
12
requires'that there be no significant environmental impacts from the proposed
. disposal.
Proliferation of situ:
The staff agrees with Envirocare that adoption of the proposed guidance will result in additional sites containing low-level I
radioactive wastes. However, no new disposal sites would be created as a result of the proposed guidance, since existing tailings impoundments would be used for disposals.
In fact, the proposed guidance may result in fewer radioactive waste disposal sites, since material that might have been disposed of in a new site or that would take up valuable space,in a LLW disposal facility could be disposed of in an existing tailings impoundment.
Transportation effects will be addressed in the environmental review; however, most of the material proposed for disposal. in an impoundment would have to be transported away from its present location, in any event.
Lona-term stability: The staff agrees with DOE that disposal of non-11e.(2) byproduct material that would compromise the long-term stability of a tailings impoundment should be precluded.
Item 7 of the proposed guidance requires compliance with.the reclamation.and closure criteria of Part 40, Appendix A.
Reclamation and closure criteria are contained in Criteria 4 and 6 of Appendix A and include criteria to ensure the stability of the impoundment and control of the radiological hazards for 1000 years, to the extent achievable, and in any case, for at least 200 years.
Title I sites:
The staff agrees with DOE that the proposed guidance is only intended to apply to currently licensed mill sites and not the UMTRCA Title I sites, which are, by definition, abandoned, inactive sites designated for remedial action under UMTRCA.
Bl.0 Definition of Ore j
Bl.1 Commenters Umetco Minerals Corp.-(3-6)
Cabot Corp. (4-1)
Fuel Cycle Facilities Forum (5-7)
Crain, Caton & James for Rhone-Poulenc Inc. (7-2)
Bureau of Land Management, U. S. Dept. of the Interior (10-1)
Office of the Governor, State of Wyoming (11-8)
Allied-Signal Inc. (12-2)
Rio Algom Mining Corp. (13-4, 13-5)
-American Mining Congress (14-10)
Utah Department of Environmental Quality (21-10)
Bl.2 Summary of Issues Seven commenters agreed with the definition of ore, as developed in the Part B 9uidance._ Several pointed out that this definition would allow secondary process wastes and other material that contained source material to be recycled.
Rio Algom and.the American Mining Congress indicated that mine waste treatment sludges and a wide variety of other materials should be allowed to be processed as ore. Cabot Corp. indicated that this policy would decrease the number of disposal sites.
13
4 Two commenters disagreed with the definition of ore:
Rhone-Poulenc stated that it was too restrictive and did.not agree with the recent Kerr-McGee court decision; Utah' stated that it was overbroad and that NRC should define ore in a' manner that would deter waste disposal.
Wyoming indicated that the proposed definition should be established by rulemaking, to avoid inconsistent definitions being applied.
Bl.3 Discussion and Response to Comments Definition of ore:
The NRC staff agrees that, under the definition of ore provided in the guidance, materials such as water treatment sludges containing source material (but not EPA-regulated hazardous constituents) could be used as feed material at a uranium mill. The definition does not restrict rare earth tailings from being processed for uranium or thorium.
On April 27, 1990,.the U. S. Court of Appeals (Kerr-McGee Corporation v. NRC, 903 F2d 1 [D.C. Cir. 1990]) ruled that NRC improperly interpreted UMTRCA as requiring extraction of thorium or uranium to be the first, chief, or principal reason for processing ore brought to a mill.
NRC had decided that ore processed first for its-rare earth content and later for thorium was not lle.(2) byproduct material, because it had not been processed "primarily for its source material content." The court decision pointed out the legislative history of the definition of 11e.(2) byproduct material and that the word "primarily" has a range of meanings (as does ore).
If off site tailings.are designated as source material, it implies that they may be categorized as ore.
The court concluded that UMTRCA was intended to bring previously unregulated radioactive end products of the source material extraction process within the scope of NRC regulation and to provide for safe stabilization of the mill tailings.
The NRC staff does not agree that the proposed definition of ore is overbroad.
The definition is consistent with that generally used in the mineral extraction industry.
We agree with Utah that the definition of ore alone-would not preclude sham disposal; Item 3 of the proposed guidance, which requires a determination that the processing is primarily for its source l
material content, is intended to address that concern.
Rulemakina:
Section 4 of Part B of the FRN, "Results of Staff Analysis,"
states that the time and resources required for~ rulemaking on the definition of ore are not justified, in light of the number of expected requests for processing of alternate feed material.- As also stated, the staff will include a definition of ore when amendments to Part 40 are proposed.
The staff considers that the promulgation of the guidance itself will prevent the application of inconsistent definitions of ore..
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B2.0 Mixed Waste Determination B2.1 Commenters Umetco Minerals Corp. (3-7, 3-8, 3-10)
Cabot Corp. (4-2, 4-3)
Fuel Cycle facilities Forum (5-8, 5-9) 1 Utah Department of Environmental Quality (21-12)
B2.2 Summary of Issues Several commenters supported the position that feed materials exhibiting only a characteristic of hazardous waste would not be regulated as hazardous waste because of EPA's exemption for certain recycling activities.
However, Utah questioned the NRC analysis of recycling _ and stated that just because a useable product is extracted from mixed waste does not exempt the remaining waste from RCRA, unless it is the extracted product that initially made it RCRA waste.
Cabot Corp. indicated that the phrase
... containing hazardous constituents, regulated under RCRA...,"
in mixed waste determinations, was ambiguous, and asked for clarification, especially regarding heavy metals.
Cabot Corp. also suggested that the policy be broadened to allow disposal of additional classes of secondary materials, such as hazardous sludges and spent materials. Umetco Minerals and the fuel Cycle Facilities Forum indicated that NRC should have the ability to authorize or deny use of feed material (subject to an environmental impact evaluation) containing a compound listed in 40 CFR 261.33, but not derived from activities listed as waste streams under 261.33(a)-(e).
Umetco Minerals agreed that evaluation of other constituents in alternate feed material is needed.
82.3 Discussion and Response to Comments Reevelino: NRC disagrees with Utah's conclusion on recycling.
The interpretation in the Staff Analysis is based on review of EPA regulations and discussions with EPA staff.
Mixed waste determination:
In the Federal regulations, " mixed waste" refers to material containing both hazardous waste and source, special nuclear, or by-product material subject to the AEA.
The purpose of Item 2 of the proposed guidance is to ensure that hazardous waste, subject to EPA regulation, is not disposed of in a tailings impoundment as a result of processing alternate feed material.
The discussion in the staff analysis is an overview of mixed waste issues, but is not intended to be a detailed technical guidance document.
Each proposed request to process alternate feed materials will be evaluated by the staff, who may also consult with EPA or State officials on a specific mixed waste determination.
Item 2 of the guidance has been revised to clarify the hazardous waste determination.
15
Policy considerations: The proposed policy cannot be any broader than existing legislation or. regulations will allow nor can NRC expand its authority. -The proposed guidance seeks to allow use of alternate. feed material, without resulting in a tailings impoundment becoming subject to EPA RCRA regulation.
82.4 Modifications to the Guidance Item 2 of the guidance has been revised to clarify the hazardous waste
' determination.
l B3.0. Determination That Processing Is Primarily for Source Material B3.1 Commenters Umetco Minerals Corp. (3-9)
Cabot Corp. (4-4, 4-5, 4-6)
Fuel Cycle Facilities Forum (5-10, 5-11)
Office of the Governor, State of Wyoming (11-3)
American Mining Congress (14-11, 14-12)
Utah Department of Environmental Quality (21-9, 21-11, 21-13)
B3.2 Summary of Issues Several commenters discussed the basis or need for Item 3 of the proposed staff guidance and the related issue of " sham disposal." Cabot Corp. and the Fuel Cycle Facilities Forum argued that " sham recycling" is mostly a false issue, that NRC should not be concerned with the motivation of the mill owner / operator, and should eliminate this from consideration.
Umetco Minerals Corp, supported the approach in the proposed guidance. Utah, however, believes that it does not protect against sham disposal.
Several commenters questioned the co-disposal test. Cabot Corp. indicated that the.co-disposal test for determining if the ore is being processed primarily.for its _ source-material content is too cumbersome and probably requires the licensee to provide costly documentation and a risk assessment.
The commenter also requested that NRC develop more detailed and specific guidance regarding the licensee's documentation in support of a co-disposal
-arrangement.
The AMC indicated that the test is redundant or only minimally helpful.
Several commenters discussed the licensee certification test.
Cabot Corp.
recommended that the certification be only that the material is being accepted for bona fide reclamation of its uranium or thorium content.
Utah stated that the policy should include licensee documentation, using current RCRA testing procedures to demonstrate that a proposed feed material is'not a RCRA waste.
Utah further indicated that the policy did not adequately address the potential for sham disposal, because any licensee could " certify" that the primary purpose of processing material, once it was received, was to extract uranium. Wyoming indicated that the test must go beyond a licensee's declaration of intent and should address the actual economics of the transaction. Other commenters stated that financial arrangements in the acquisit' ion of feed materials are not relevant. AMC stated that demonstrating 16
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a known market and a willing purchaser for alternative feed is not always possible, but processing is still desirable and should not be considered " sham recycling." The Fuel Cycle Facilities Forum pointed out that some recyclers charge the suppliers of waste to take their material, and this is not sham recycling.
B3.3 Discussion and Response to Comments
" Sham disoosal": As discussed in the Staff Analysis, the definition of 11e.(2) byproduct material requires that it be derived from ore processed crimarily for its source material content. The determination discussed in Item 3 of the proposed guidance is to address that aspect of the definition.
If ore is processed in a uranium mill primarily for its source material content, it 'is irrelevant whether the ore would have had to have been otherwise disposed of if it were not processed.
Co-disposal test: The NRC staff disagrecs that the co-disposal test is redundant or only minimally helpful. The clearest way to show, beyond any doubt, that proposed feed material would be processed primarily for its source material content, is to show that it would be allowed to be disposed of in the tailings impoundment, in any case. Such a demonstration would dispel any accusation of " sham disposal." We agree that it may be cumbersome in some cases and that more detailed guidance would need to be provided to a licensee choosing to apply this test.
licensee certification test: We agree that the determination of whether proposed feed material is RCRA waste should include demonstrations with i
documentation.
Since Item 2 of the proposed guidance requires that licensee
)
demonstration, the certification with respect to RCRA aspects has been deleted from item 3.
We agree that a licensee certification may not be sufficient to prevent sham disposal, but also agree that the economic aspects may not be l
i able to differentiate between legitimate uranium processing and sham disposal.
j We therefore have expanded the test to require both a licensee certification l
and justification.
The licensee justification can be based on financial considerations, on the high uranium content of the ore, or on any other grounds that the licensee determines will justify that the proposed processing is primarily for the uranium content of the material and is not sham disposal.
The staff determination of whether the test is met will be made on a case-specific basis.
83.4 Modifications to the Guidance Item 3 of the guidance has been revised to eliminate licensee certification of RCRA aspects of the proposed feed material and expanded to include licensee justification that the proposed processing is primarily for the source material content of the feed material. The wording of the co-disposal test has been modified to cite the accompanying guidance on disposal of non-11e.(2) byproduct material rather than the 1988 guidance or the SECY document that presented the draft version of the accompanying guidance.
17
B4.0 Other Topics on Alternate feed Material B4.1 Commenters Umetco riineral Corp.-(3-11)
Office of the Governor, State of Wyoming (11-2, 11-6)
Allied-Signal Inc. (12-1)
.84.2 Summary of Issues Umetco Minerals indicated that the disposal of wastes from alternate feed material should be permitted on a case-by-case basis and not be subject to LLW Compact approval, while Wyoming stated that approval should be obtained.
Wyoming indicated that the guidance should further discuss post-closure ownership and should require advance commitment-from DOE or the State to take title to the impoundment, for waste generated as a result of the processing of alternate feed materials.
Allied-Signal stated that the term " waste" should not be used in describing alternate feed materials, because of the negative connotation associated with that term.
B4.3 Discussion and Response to Comments LLW Compact aooroval:
LLW Compact approval is not required for disposal of waste, from processing alternate feed material, under the proposed guidance, since such wastes would not be LLW and thus not under the purview of Compacts.
1 The purpose of the proposed guidance is to ensure that processing of alternate feed materials would only be permitted if the resulting wastes meet the definition of lle.(2) byproduct material.
Processing of feed material that would not result in lle.(2) byproduct material would not be permitted, under the proposed guidance.
Prior commitment to take title:
Prior commitment, by DOE or the State in.
which the tailings impoundment is located, to take title to,a disposal site after closure, is not needed.
The purpose of the proposed guidance is to ensure that processing of alternate feed materials would only be permitted if the resulting wastes meet the definition of lle.(2) byproduct material. DOE (or another Federal agency designated by the President) is required, under Section 83 of the AEA, to take title to such a site.
Use of the term " waste": We agree that the term " waste" should not used to describe alternate feed materials.
If material can be used in accordance with the proposed guidance to recover source material, it is not waste. However, l
some material,- from which source material could be recovered, would nevertheless meet the definition of hazardous or mixed waste, under EPA regulations. The proposed guidance would not allow such material to be
. processed.in a. licensed mill.
18
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N C1.0 Comments Applicable to Parts A and B Cl.1 Commenters Utah Chapter Sierra Club (8-1)
Office of the Governor, State of Wyoming (11-4)
'American Mining Congress (14-1, 14-3)
Utah Department of Environmental Quality (20-1, 21-1, 21-14)
John Darke (22-1)
C1.2 Summary of Issues Two commenters expressed general views related to both of the guidance documents.
The Utah Chapter Sierra Club opposed the use of tailings impoundments as disposal. sites for materials imported from other locations.
The commenter indicated that the problems found at existing sites.should not be increased for the benefit of the mill owner. Utah indicated that rulemaking, rather than issuance of guidance, is the appropriate mechanism to institute the practices discussed in the proposed guidance documents.
John Darke questioned whether the guidtnce would apply only to future actions or would also be used to exonerate past actions.
He also asked what written guidance, in each case, did the NRC use for reviewing and accepting license amendments for such disposal and processing activities.
There were several specific comments directed at both Part A and B of the FRN.
Wyoming stated that the guidance should more clearly establish how material is to be characterized and should require independent testing and verification.
AMC objected to the "definitional" approach to regulation of radioactive material and stated that NRC should develop broader and more flexible policies, to allow more material to be disposed in tailings impoundments.
Utah stated that DOE should' sign off on any change in disposal practices at mills.
C1.3 Discussion and Response to Comments Use of tailinas imooundments:
We disagree with the Sierra Club in that most tailings impoundments are excellent sites for disposal of high-volume, low-activity radioactive waste.
Rulemakina: The NRC staff does not consider the proposed guidance, with the possible exception of the definition of ore, to fall within the scope of
- rulemaking.
The proposed guidance provides the staff with procedures for implementing existing regulations. As. stated in the Staf.f Analysis accompanying Part B, the staff concluded that the time and resources required for a separate rulemaking on the definition of ore are not justified, but that the definition will be added when Part 40 is next revised.
Aoolicability of auidance: Although the guidance is intended to apply to future actions, it draws on, and revises, past and existing NRC policies and practices.
Past NRC actions were taken under policies and practices in effect at the time they were taken.
l.
19
Characterization of material:
Both guidance documents require conclusions that are based on required characterization.
The presentation of technical j
implementation criteria and other details related to characterization is beyond the scope of this guidance.
Scope of cuidance:
The guidance documents address disposal and processing of off site material.
The basis for limiting the policy was discussed in the Staff Analyses. NRC must work within the existing legislative mandates and regulatory framework.
The Staff Analysis in Part A of the FRN discusses the general position taken by NRC staff.
DOE aooroval: As noted in Section 6.2 of the Staff Analysis of Part A of the FRN, there was considerable discussion between NRC and DOE during the development of the proposed guidance for disposal of non-11e.(2) byproduct material.
Additionally, Item 9 of the guidance has been revised to include a concurrence by the State or DOE, within 120 days.
Prior commitment, by DOE, to take title to a disposal site that has processed alternate feed material, is not needed.
DOE (or another Federal agency designated by the President) is required, under Section 83 of the AEA, to take title to such a site.
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20
j NUCLEAR REGULATORY COMMISSION Uranium Mill Facilities, Notice of Two Guidance Documents:
Final Revised Guidance on Disposal of Non-Atomic Energy Act of 1954, Section 11e.(2) Byproduct Material in Tailings Impoundments; Final Position and Guidance on the Use of Uranium Mill Feed Materials Other Than Natural Ores AGENCY: Nuclear Regulatory Commission.
ACTION: Notice of final guidance.
SUMMARY
- The U.S. Nuclear Regulatory Commission has finalized two uranium mill licensing guidance documents after consideration of comments received in response to a request for public comment in a Federal Reaister notice published May 13, 1992 (57 FR 20525). Only minor changes were made to the proposed guidance documents titled, " Revised Guidance on Disposal of Non-Atomic Energy Act of 1954, Section lle.(2) Byproduct Material in Tailings Impoundments" and " Position and Guidance on the Use of Uranium Mill Feed Materials Other Than Natural Ores."
ADDRESSES: Copies of the comments and the NRC staff responses, as well as SECY-91-243, can be examined at the Commission's Public Document Room at 2120 L Street NW. (lower level), Washington DC.
FOR FURTHER INFORMATION CONTACT: Myron Fliegel, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555; telephone (301) 415-6629.
l SUPPLEMENTARY INFORMATION:
Final Revised Guidance on Disposal of Non-Atomic Energy Act of 1954, Section 11e.(2) Byproduct Material in Tailings Impoundments 1.
In reviewing licensee requests for the disposal of wastes that have radiological characteristics comparable to those of Atomic Energy Act (AEA) of 1954, Section 11e.(2) byproduct material (hereafter designated as "lle.(2) byproduct material") in tailings impoundments, staff will follow the guidance set forth below.
Since mill tailings impoundments are already regulated under 10 CFR Part 40, licensing of the receipt and disposal of such material (hereafter designated as "non-lle.(2) byproduct material'"] should also be l
done under 10 CFR Part 40.
2.
Radioactive material not regulated under the AEA shall not be authorized for disposal in an lle.(2) byproduct material impoundment.
'"non-11e.(2) byproduct material" as used here is simply an encompassing term for source, special nuclear, and lle.(1) byproduct materials.
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3.
Special nuclear material and Section lle.(1) byproduct material waste
-should not be considered as candidates for disposal in a tailings impoundment, without compelling reasons to the contrary.
If staff believes that such material should be disposed of in a tailings impoundment in a specific instance, a request for approval by the Commission should be prepared.
4.
The 11e.(2) licensee must demonstrate that the material is not subject to applicable Resource Conservation and Recovery Act (RCRA) regulations or other U.S. Environmental Protection Agency (EPA) standards for hazardous or toxic wastes prior to disposal.
To further ensure that RCRA hazardous waste is not inadvertently disposed of in mill tailings impoundments, the lle.(2) licensee also must demonstrate, for waste containing source material, as defined under the AEA, that the waste does not also contain material classified as hazardous waste according to 40 CFR Part 261.
In addition, the licensee must demonstrate that the non-11e.(2) material does not contain material regulated under other Federal statutes, such as the Toxic Substances Control Act. Thus, source material physically mixed with other material, would require evaluation in accordance with 40 CFR Part 261, or 40 CFR Part 761.
(These provisions would cover material such as:
characteristically hazardous waste; listed hazardous waste; and polychlorinated biphenyls.) The demonstration and testing should follow accepted EPA regulations and protocols.
5.
The 11e.(2) licensee must demonstrate that there are no Comprehensive Environmental Response, Compensation and Liability Act issues related to the disposal of the non-lle.(2) byproduct material.
6.
The lle.(2) licensee must demonstrate that there will be no significant environmental impact from disposing of this material.
7.
The 11e.(2) licensee must demonstrate that the proposed disposal will not compromise the reclamation of the tailings impoundment by demonstrating compliance with the reclamation and closure criteria of Appendix A of 10 CFR Part 40.
8.
The 11e.(2) licensee must provide documentation showing approval by the Regional Low-Level Waste Compact in whose jurisdiction the waste originates as well as approval-by the Comract in whose jurisdiction the disposal site is located.
9.
The Department of Energy (DOE) and the State in which the tailings impoundment is located, should be informed of the Nuclear Regulatory Commission findings and proposed action, with a request to concur within 120 days. A concurrence and commitment from either DOE or the State to take title to the tailings impoundment after closure must be received before granting the license amendment to the lle.(2) licensee.
- 10. The mechanism to authorize the disposal of non-lle.(2) byproduct material in a tailings impoundment is an amendment to the mill license under 10 CFR Part 40, authorizing the receipt of the material and its disposal.
Additionally, an exemption to the requirements of 10 CFR Part 61, under the-authority of 6 61.6, must be granted.
(If the tailings impoundment is located in an Agreement State with low-level waste licensing authority, the State must 2
I
take appropriate action to exempt the non-11e.(2) byproduct material from regulation as low-level waste.) The license amendment and the 6 61.6 exemption should be supported with a staff analysis addressing the issues discussed in this guidance.
Final Position and Guidance on the Use of Uranium Mill Feed Material Other Than Natural Ores Staff reviewing licensee requests to process alternate feed material (material other than natural ore) in uranium mills should follow the guidance presented below.
Besides reviewing to determine compliance with cppropriate aspects of Appendix A of 10 CFR Part 40, the staff should alsc address the following issues:
1.
Determination of whether the feed material is ore.
For the tailings and wastes from the proposed processing to qualify as lle.(2) byproduct material, the feed material must qualify as " ore."
In determining whether the feed material is ore, the following definition of are must be used:
Ore is a natural or native matter that may be mined and treated for the extraction of any of its constituents or any other matter from which source material is extracted in a licensed uranium or thorium mill.
2.
Determination of whether the feed material contains hazardous waste.
l If the proposed feed material contains hazardous waste, listed'under subpart D 99 261.30-33 of 40 CFR (or comparable RCRA authorized State regulations), it would be subject to EPA (or State) regulation under RCRA.
To avoid the complexities of NRC/ EPA dual regulation, such feed material will not
'I be approved for processing at a licensed mill.
If the licensee can show that the proposed feed material does not contain a listed hazardous waste, this issue is resolved.
Feed material exhibiting only a characteristic of hazardous waste (ignitable, corrosive, reactive, toxic) would not be regulated as hazardous waste arid could therefore be approved for recycling and extraction of source material.
However, this does not apply to residues from water treatment, so acceptance of such residues as feed material will depend on their not containing any hazardous or characteristic hazardous waste. Staff may consult with EPA (or the State) before making a determination of whether the feed material contains hazardous waste.
3.
Determination of whether the ore is beina processed primarily for its source-material content.
For the tailings and waste from the proposed processing to qualify as 11e.(2) byproduct material, the ore must be processed primarily for its source-material content.
There is concern that wastes that would have to be i
disposed of as radioactive or mixed waste would be proposed for processing at a uranium mill primarily to be able to dispose of it in the tailings pile as 3
i
11e.(2) byproduct material.
In determining whether the proposed processing is primarily for the ource-material content or for the disposal of waste, either of the following tests can be used:
a.
Co-disposal test: Determine if the feed material would be approved for disposal in the tailings impoundment under the " Final Revised Guidance on Disposal of Non-Atomic Energy Act of 1954, Section 11e.(2) Byproduct Material in Tailings Impoundments," or revisions or replacements to that guidance.
If the material would be approved for disposal, it can be concluded that if a mill operator proposes to process it, the processing ~is primarily for the source-material content. The material would have to be' physically and chemically similar to 11e.(2) byproduct material and not be subject to RCRA or other EPA hazardous-waste regulations, as discussed in the guidance.
b.
Licensee certification and justification test: The licensee must certify under oath or affirmation that the feed material is to be processed primarily for the recovery of uranium and for no other primary purpose.
The licensee must also justify, with reasonable documentation, the certification.
The justification can be based on financial considerations, the high uranium content of the feed material, or other grounds. The determination that the proposed processing is primarily for the source material content must be made on a case-specific basis.
If it can be determined, using the aforementioned guidance, that the proposed feed material meets the definition of ore, that it will not introduce a hazardous waste not otherwise exempted, and that the primary purpose of its processing is for its source-material content, the request can be approved.
Dated at Rockville, Maryland, this th day of August 1995.
For the Nuclear Regulatory Commission.
Joseph J. Holonich, Chief High-Level Waste ar.d Uranium Recovery Projects Branch Division of Waste Management Office of Nuclear Material Safety and Safeguards 4
pa ath a
4 L'NITED STATES i
j j
NUCLEAR REGULATORY COMMISSION I
2 WASHINGTON, D.C. So66Hoo1
%,*****/
November 19,1998 l
MEMORANDUM TO: Joseph J. Holonich, Chief Uranium Recovery Branch Division of Waste Management, NMSS Senior Project Ma[n FROM:
Myron Fliegel Uranium Recove ran h
{
Division of Waste Management, NMSS l
SUBJECT:
DIFFERING PROFESSIONAL VIEW ON COMMISSION PAPER TITLED:
USE OF MILL TAILINGS IMPOUNDMENTS FOR THE DISPOSAL OF WASTE OTHER THAN 11E.(2) BYPRODUCT MATERIAL AND REVIEWS OF APPLICATIONS TO PROCESS MATERIAL OTHER THAN 1
NATURAL URANIUM ORES l
l Please find attached my Differing Professional View (DPV) on the subject Commission Paper. I request that the DPV be attached to the Commission Paper.
i
Attachment:
DPV
November 19,1998 DIFFERING PROFESSIONAL VIEW ON COMMISSION PAPER TITLED:
"USE OF MILL TAILINGS IMPOUNDMENTS FOR THE DISPOSAL OF WASTE OTHER THAN 11E.(2) BYPRODUCT MATERIAL AND REVIEWS OF APPLICATIONS TO PROCESS MATERIAL OTHER THAN NATURAL URANIUM ORES" Myron Fliegel Senior Project Manager Uranium Recovery Branch, DWM, NMSS l have reviewed the Commission Paper that this Differing Professional View is attached to and i disagree with some of the conclusions and recommendations in that paper. Furthermore, I believe that the Commission Paper does not adequately document the history of these issues, including the considerable controversy involved and the resulting difficulty the staff and the Commission had in developing the current guidance. The guidance attempted to balance the desire to allow disposal of material other than 11e.(2) byproduct material and processing of altemate feed material with the legitimate concems of all interested parties, including those outside the milling community.
Development of NRC Guidance documents i
SECY-91-243, August 7,1991, was the result of several years of staff effort to develop guidance on the issue of allowing the disposal of waste other than 11e.(2) byproduct material in tailings impoundments. In developing the guidance, the staff consulted and corresponded with the U.S.
Department of Energy (DOE) over the course of several years to obtain its views on the acceptability of various types of wastes that could disposed of in uranium tailings impoundments. The guidance proposed in SECY-91-243 was consistent with DOE's views, as documented in DOE letters dated November 16,1990, December 24,1990, and January 23, 1991. The guidance was developed in part because of the staffs' belief that it would be in the nation's interest to allow the use of mill tailings impoundments for the disposal of non-11e.(2) wastes.
The September 20,1991 SRM required the staff to revise the guidance to 1) require explicit approval of low-level waste (LLW) Compacts, and 2) address the need for an exemption from Part 61. The Commission directed the staff to publish the revised guidance in the Federal Registerfor public comment. By memorandum dated October 24,1991, the staff provided the Commission with its revised guidance and its proposed Federal Register notice.
Secy-91-347, October 25,1991, requested Commission approva! of proposed guidance to allow processing in a licensed mill of material other than natural ore. The December 3,1991 SRM approved publishing the guidance for comment and directed the staff to prepare a single Federal Registernotice containing both guidance documents.
By memorandum dated March 27,1992, the staff transmitted its proposed FederaIRegister notice to the Commission. COMSECY-92-007, April 30,1992, approved the Federa/ Register notice, with minor revisions. The guidance was published in the Federal Register on May 13,
j i
1992. Twenty-four letters of comment were received on the guidance. In addition to comments from industry and environmental groups, comments were received from the Wyoming Govemor's office, State agencies in Colorado, Texas, Utah, and Washington, and a U.S.
Congressman.
The comments that were received varied significantly in the views expressed. Several
)_
- commenters indicated that the guidance provided too much flexibility, while others believed it was too restrictive. Some commenters supported the guidance, while others thought it needed major modifications. The staff analyzed all the comments and revised the guidance. SECY 211, August 15,1995 requested Commission approval of the revised guidance. The September 1,1995 SRM approved the guidance, which was then published in the Federal Registeron September 22,1995.
i One of the reasons for briefly summarizing the history of the non-11e.(2) byproduct material disposal and altemate feed material guidance documents is to emphasize the considerable effort that went into developing and finalizing the guidance. The issues involved are complex and the divergent views of all the interestcf parties need to be considered. I believe that before revising the guidance because of comments from one interest group, much more analysis of the issues and possible consequences of revisions, are needed. In the sections that follow, I have tried to identify some of the concems and issues that need to be considered. A more thorough analysis than I was able to perform in the limited time available to me would likely identify more issues.
Excluded Material 1
The guidance on non-11e.(2) disposal precludes disposal of several categories of material, i
including material regulated under the Solid Waste Disposal Act, the Toxic Substance Control Act, and the Cornprehensive Environmental Response, Compensation, and Liability Act, and radioactive material not regulated under the Atomic Energy Act (AEA) of 1954. The Commission Paper states that the basis for the prohibitions is the ability of the long-term custodian to accept the site upon license termination. The major concem identified is that of dual regulation of the site after license termination. The Commission Paper argues that NRC need not be concemed with allowing these materials into tailings impoundments, and the resulting dual regulation issues, if the long-term custodian will agree to accept the site. Since the guidance requires an acceptance by the long-term custodian, it is argued that the specific prohibitions are not needed.
There are, however, several problems with this approach:
DOE's position on acceptable material was documented in correspondence to NRC and the guidance was written to be consistent with that. DOE formulated its position after several years of consideration. Before considering revisions to the guidance, NRC should elicit DOE's views. However, it should be recognized that DOE will incur costs just to reconsider this issue. DOE staff involved in the earlier dialogues with NRC may no longer be available or may have to spend time to refamiliarize themselves with the issues. DOE staff that did not participate in that earlier dialogue would have to review the old material before beginning to reconsider the earlier DOE position. Once appropriate DOE staff have familiarized themselves with the issues involved, the process of reconsidering the earlier DOE positions could be initiated. That process, leading to either new DOE positions or affirmation of previous positions, could involve considerable DOE effort. I therefore suggest that, before NRC even considers this approach, discussion with DOE be initiated.
If, after reconsidering the issue, DOE were to decide that it will continue to preclude material that could result in dual regulation, removing items 2,4, and 5 from the NRC guidance would not help licensees. Instead of having to deal only with NRC on requests for disposal of non-11e.(2) material, licensees would also have to obtain approval from DOE. Furthermore, DOE would have to prepare its own guidance to its staff to deal with requests from NRC licensees.
The approach proposed in the Commission Paper puts a significant burden on DOE to review specific applications for disposal and determine if it will accept the material proposed. Even if DOE were to determine that it should continue to preclude the disposal of the types of material precluded in the current guidance, it would still have to review applications to ensure that the material proposed for disposal does not contain prohibited material. Under the current guidance, NRC performs that review, which is appropriate for a ingulatory agency. The concurrence required under item 9 of the current guidance does not require DOE to perform a detailed review of licensee information. It is there for two reasons: 1) for NRC to ensure that the long-term custodian is aware of the specific non-11e.(2) disposal and agrees to accept the tailings impoundment after closure, and 2) to allow the long-term custodian the opportunity to reject the proposed disposal. The review that DOE would perform to provide that concurrence could rely on the NRC staff review and documentation and need not be at the level of detail of NRC's review.
Regardless of the long-term custodian's position on accepting a site subject to dual regulation, there are reasons why NRC should not accept such a situation if at all I
possible. One reason is that there is likely to be a need to expend additional NRC l
resourcec on a tailings site subject to dual regulation. Staff experience with tailings sites in Wyoming and Utah on issues related to ground water contamination and cleanup, which are subject to concurrent jurisdiction, is that considerable staff resources can be spent interacting with State agencies, it is unlikely that issues related to disposal of the materials proposed will involve less staff resources interacting with appropriate State and Federal agencies. Additionally, the Commission Paper acknowledges that NRC would have the additional burden of determining, with the help of the long-term custodian, what additional funds would need to be added to the long-term care fund for material regulated by others.
j The potential for conflicts between requirements for 11e.(2) disposal and disposal of i
materials currently excluded by the guidance needs to be considered. The current-l-
guidance (in item 10) directs the staff to issue an exemption, under 10 CFR 61.6, to the requirements in Part 61 to preclude such conflicts between 11e.(2) byproduct material I
and LLW disposal requirements. Conflicts between regulatory requirements for 11e.(2) byproduct material disposal and other waste disposal, regulated by other agencies, may not be so easily resolved. Furthermore, even if it were determined that there are no conflicts under current regulations, there is a potential for such conflicts in the future, as regulations are revised. As an example, a State could try to circumvent an NRC decision on a tailings site containing material not regulated by the Federal government, by writing or revising its regulations goveming that material.
Approval by LLW Compacts The guidance on non-11e.(2) disposal requires the Fcensee to obtain approval of the LLW Compact in whose jurisdiction the waste originates as well as the Ocmpact in whose jurisdiction the disposal site is located. The Compact approval requirement was not originally proposed by the staff in SECY-91-243, but was added to the guidance at direction of the Commission.
However, st&ff recognized that it was appropriate because of the legal status of the waste (i.e.,
as LLW) that the guidance would apply to.
Even if LLW Compacts are not currently functioning well, the legal status of the material has not changed, nor has jurisdiction been taken from the Compacts. Additionally, at a public meeting held in August 1998 in Denver, the Executive Director of the Rocky Mountain Low-Level Radioactive Waste Compact Board emphasized that Compact's jurisdiction with regard to LLW disposal and stated its strong support for the requirement, in the guidance, of LLW Compact approval.
Notwithstanding the industry's desire to avoid having to get Compact approval for disposal of LLW in tailings impoundments, the Commission may not have the legal authority to alicw such disposals under cunent law. For these reasons, I conclude that the requirement for Compact approval should remain in the guidance.
Alternate Feed in preparing the guidance on the use of attemate feed material, the staff was attempting to balance two potentially conflicting goals. On the one hand, the staff wanted to allow licensees the ability to process any material that had reasonably recoverable quantities of uranium. On the other hand, the staff realized the potential for abuse of a policy that allowed material that would otherwise have to be disposed of as radioactive waste and at considerable expense, to be processed for uranium, with the bulk of the material going into the tailings impoundment as 11e.(2) byproduct material. This potential abuse has been referred to as " sham disposal" or, probably more accurately, as " sham processing." As almost any earthen material will contain some uranium, if licensees were allowed to process any material "for its uranium" there would be no way to preclude what essentially could become a LLW disposal facility.
The staff guidance attempted to prevent sham processing in the following way. The definition of I
11e.(2) byproduct material requires that the ore be processed "primarily for its source material content." Licensees would not engage in sham processing if the remaining wastes could not be disposed of in the tailings impoundment as 11e.(2) byproduct material. However, Part 40 does not contain a definition of" ore" as used in the definition of 11e.(2) byproduct material. The staff guidance therefore provided a very broad definition of ore that could be applied to virtually any material brought to a mill for processing. It attempted to prevent sham processing by considering whether the material was being processed primarily for its source material content.
The guidance identified two methods for a licensee to show that the processing was primarily for the source material content of the alternate feed material, thus allowing the waste to be disposed of in the tailings impoundment as 11e.(2) byproduct material. The licensee could propose either method.
l The first method, the "Co-disposal test," essentially stated that if the material would be allowed to be directly disposed of in the tailings impoundment, then the licensee's request to process it for uranium was clear evidence, in and of itself, that the licensee was processing for the source material content.
The second method is the " Licensee certification and justification test." This method requires a certification under oath that the feed material is to be processed primarily for the recovery of uranium and documentation to justify the certification. The method of justification is left to the licensee and does not necessarily have to be based on financial considerations. In some instances, the justification can be relatively straightforward. For example, there have been some req':ests to process material with uranium concentrations of over 3 percent, with some of the material ranging up to 65 percent uranium. Natural ore that has been processed in American mills typically contained only a few tenths of a percent of uranium. The high uranium content of the material can be used to justify that the processing is primarily for the source material.
A justification, based on financial considerations can easily be made if the licensee pays for the altemate feed material. However, if the mill operator is to be paid to accept the material, if the material would otherwise have to be disposed of at considerable expense, and if the material contains only low concentrations of uranium, a legitimate concem is that the processing is being j
proposed to skirt LLW disposal requirements, i.e., it is sham processing. The justification requirement in the guidance forces the licensee to address this concem.
The Commission Paper recommends that the staff be allowed to remove considerations of economics currently in the guidance and that the Commission vacate the April 12,1993 Presiding Officer's decision in LBP-93-7. As discussed above, the guidance does not require a financial test. What the Commission Paper apparently is attempting to do is to remove the requirement that a licensee justify that material proposed for processing is to be processed primarily for its source material. If the Commission removes the justification requirement it will, in effect, be sanctioning sham processing. I therefore recommend that the Commission direct the staff to retain the justification requirement in the guidance.
Proposed Resolution Although I have presented a differing view on the industry's request to revise the two guidance documents discussed in the Commission Paper, it is my opinion that uranium mill tailings impoundments are excellent places to dispose of low activity radioactive material. Most of the i
staff involved in developing the guidance shared the view that it would be in the best interest of the nation to allow use of the excess disposal capacity in tailings impoundments for other radioactive earthen waste. In developing the guidance we tried to accomplish that objective.
However, it became apparent to us that the conflicting laws, regulations, and jurisdictional I
authorities of various programs prevented us from doing anything more than the current guidance allows. At that time we concluded that we could not allow other material to be disposed of in tailings impoundments nor simplify the process without new legislation. I continue to hold that view. However, the legislation that would be needed to allow disposal of a far l
greater variety of non-11e.(2) material in tailings impoundments need not be very complex nor l
lengthy. As an example, an addition to the AEA along the following lines may be all that is l
needed:
t i
Earthen material and building and construction debris, including hazardous material that would otherwise be regulated under the Solid Waste Disposal Act, contaminated with radionuclides of the uranium or thorium decay chain and of comparable activity to that already in the tailings pile, can be disposed of at a licensed uranium mill tailings impoundment; provided that the requirements promulgated in conformance with Sec. 84 of the AEA are met. Material disposed ofin uranium mill tailings impoundments under i
this provision shall be deemed to be byproduct material, as defined in Sec.11e.(2) of the AEA.
Such legislation would allow NRC to approve disposal of much of the radiologically contaminated earthen material currently presenting disposal problems, without the need for approvals by DOE, Compacts, or States. Furthermore, the problem of dual regulation would be eliminated. Finally, the concem regarding licensee justification that alternate feed material will be processed primarily for its source material should be resolved, since most candidate feed material could be disposed of directly into the tailings pile, thus meeting the "co-disposal test."
I therefore suggest that NRC propose legislation, along the lines identified above, to address this problem. _ If Congress is indeed interested in solving this problem, the solution it is not very difficult.
l l
1 e.
'}
[po ucg o,
UNITED STATES f"
i NUCLEAR REGULATORY COMMISSION
{~
E W ASHIN GTON, D.C. 20555 v
September 20, 1991 OFFICE OF THE SECRETARY MEMORANDUM FOR:
James M. Taylor Executive Director for Operations Harold R.
Denton, Director office Gove nmental and Public Affairs d-8 M
FROM:
John C.
- Hoyle, cting Secretary
SUBJECT:
SECY-1-243 - DISPOSAL OF MATERIAL OTHER THAN ATOMIC ENERGY ACT OF 1954, AS AMENDED, SECTION 11e.(2) BYPRODUCT MATERIAL INTO URANIUM MILL TAILINGS' IMPOUNDMENTS This is to advise you that the Commission (with all Commissioners agreeing) has approved the fol;owing actions in regard to the revised guidelines proposed in SECY-91-243:
I One issue not addressed in the policy guidance is the role of the Regional LLW compacts.
Inasmuch as the kind of material under consideration is within the purview of the States under the Low Level Radioactive Waste Policy Amendments Act of 1985 (LLRWPAA), the explicit approval of both the originating and the receiving Compact should be obtained if the waste is going anywhere but a designated Regional facility.
Although this is not specifically a health and safety issue, it is an issue that could cause problems for the licensee and perhaps interfere with ultimate reclamation of the tailings.
The policy should be revised to include a requirement that the licensee's submittal provide evidence of the Compact's approval of the proposed disposal.
In view of the fact that low-level waste containing source material is classified as Class A waste under 10 CFR Part 61, staff's conclusion that licensing the disposal of such material received from others under the mill operator's Part 40 license without justifying and granting an exemption from Part 61 needs to be explained.
Specifically, the discussion in Section 6.4 of Enclosure 4 should be expanded to include the explanation.
Because of the current sensitivity of this SECY NOTE:
DUE TO A PENDING DECISION RELATED TO THIS MATTER IN THE STATE OF WASHINGTON, SECY WILL MAKE THIS SRM AND SECY-91-243 PUBLICLY AVAILABLE WHEN THE FINAL SRM IS ISSUED
issue and the importance of the precedent being set to the national low-level waste efforts, the Commission would like to see the explanation and modifications to Section 6.4 before publication.
After making the revisions indicated above and after Commission review of Section 6.4, the staff should publish the revised policy guidance and staff analysis in the Federal Register notice i
for public comment.
(EDO)
(SECY Suspense:
10/11/91)
The staff should seek the comments of the Agreement States and LLW compacts on the FRN once published.
After receiving public comment the staff should provide the i
Commission with an analysis of the comments and any recommended l
modifications to the guidance.
(EDO)
(SECY Suspense:
3/1/92) l cc:
The Chairman l
Commissioner Rogers Commissioner Curtiss Commissioner Remick OGC OIG ACNW l
l
l 1
Draft Revised " Guidance on Disposal of Atomic Energy Act Non-Section 11e.(2)
Byproduct Materialin Tailings impoundments"if Staff Recommendations Are Approved The mechanism to authorize the disposal of material other than Atomic Energy Act of 1954, 1
Section 11e.(2) byproduct material (hereafter designated as non-11e.(2) byproduct material') in a uranium mill tailings impoundment is an amendment to the mill license under 10 CFR Part 40, authorizing the receipt of the material and its disposal. The 11e.(2) licensee shall submit an i
environmental report meeting the requirements of 10 CFR 51.45 in support of its license amendment request.
J If the 11e.(2) licensee is seeking approval to accept for disposal materials regulated under the Resource Conservation and Recovery Act, the Toxic Substance Control Act, or the Comprehensive Environmental Response, Compensation and Liability Act, the licensee should obtain the necessary permits (s) or an exemption to such permit (s) from the appropriate regulatory agency (ies), in addition to receiving from NRC the necessary approval under 10 CFR Part 40. If the requirements for disposal of such material are more stringent than those required in Part 40, then NRC would view those as adding conservatism to the design. If the Part 40 requirements are more conservative, NRC would still require that its regulations are met.
Through this approach, NRC believes that any conflicts between the different regulatory requirements could be handled. In the rare instances where the State imposed requirements would conflict with NRC's responsibilities to fulfill UMTRCA, NRC would rely on Federal preemption to avoid such conflicts. However, as NRC has successfully done at mill sites currently undergoing regulation, it would hope to cooperatively work with States. Such cooperative arrangements in the States of New Mexico and Wyoming have allowed current mills to move toward reclamation and license termination. As such, NRC's willingness to work with individual States who are cooperative to achieving sound resolution to waste issues should avoid any conflicts as long as individual States exhibit the reasonableness NRC has found in past work on areas where concurrent jurisdiction was present.
In reviewing licensee requests for the disposal of wastes that have radiological characteristics comparable to those of 11e.(2) byproduct material in tailings impoundments, staff will follow the guidance set forth below. Since mill tailings impoundments are already regulated under 10 CFR Part 40, licensing of the receipt and disposal of non-11e.(2) byproduct material should also be done under 10 CFR Part 40.
1.
Only those non-11e.(2) byproduct materials with physical and chemical characteristics similar to those of 11e.(2) byproduct material present in tailings impoundments and containing the primordial element (s) (uranium and/or thorium) and their daughter elements as the only radionuclides present, can be approved for disposal.
2.
Special nuclear material and Section 11e.(1) byproduct material waste should not be considered as candidate for disposalin tailings impoundments, without compelling reasons "Non-11e.(2) byproduct material" as used here is simply an encompassing term for source, special nuclear, and 11e.(1) byproduct material.
l
F 2
t to the contrary. If staff believes that disposal of such material in a tailings impoundment in a specific instance is acceptable, such approval will only be granted after review by the Commission.
l 3.
The 11e.(2) licensee must demonstrate that the material proposed for disposal will not modify the physical or chemical characteristics of the material already present in the tailings impoundment and that the proposed disposal will not compromise the reclamation of the tailing impoundment in accordance with the reclamation and closure criteria of Appendix A of 10 CFR Part 40.
i l
4.
A concurrence and commitment from the long-term custodian (either the Department of Energy (DOE) or the State in which the tailings impoundment is located) to take title to the tailings impoundment including associated non-11e.(2) product materials after closure must be received before granting the license amendment to the 11e.(2) license. The licensee should inform DOE and the State in which the tailings impoundment is located, of the U.S.
Nuclear Regulatory Commission findings and approved action.
l 5.
If the licensee proposes to dispose of low-level waste in the tailings impoundment the l
licensee must certify that the disposal of low-level waste under these criteria does not require a license under 10 CFR Part 61, as long as such disposal is in accordance with these criteria and adhere to the criteria in Appendix A of 10 CFR Part 40.
i t
- s
./ 3 7b 'l s,..
LBP-93-7 UNITED STATES OF AMERICA 93 APD 12 P : :4 '
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judge BERVED APR 18 S93 James P.
Gleason, Presiding Officer
)
In the Matter of
)
Docket No. 40-08681-MLA
)
UMETCO MINERALS CORPORATION
)
ASLDP flo. 92-666-01-!LA
)
(Source Materials License
)
No. SUA-1358)
)
)
April 12, 1993 INITIAL DECISION This proceeding concerns itself with objections by the State of Utah (State) to the Nuclear Regulatory Commission (NRC) issuance of a license amendment to UMETCO Minerals Corporation (UMETCO or Licensee).2 Under UMETCO's license, uranium milling and waste disposal processes are conducted the Company's White Mesa Mill facilities in Blanding, at Utah.
An informal hearing on the license amendment under NRC's Subpart L procedures was granted to the State and a 8State of Utah, Request for Hearing and Request for Action (July 2. 1992).
9304140156 930~4T2*'
PM ADOCK 04008601 N2 C
-p
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t i
~
2 Presiding Officer designated to adjudicate the controversy.'
I.
BACKGROUND On January 18, 1989, UMETCO submitted a license amendment application to perform plant processing tests on approximately 600. wet tons of feed material at the Mill.
The stated purpose of the testing was to determine if UMETCO could economically process the material for its uranium content with tailings resulting from the process to be disposed in the Mill's impoundment.
The feed material, obtained from the Teledyne Wah Chang Albany Company (TWCA),
originated from the processing of ore to recover zirconium at TWCA's facilities in Albany, Oregon.)
Prior to the filing of UMETCO's application, the State of Utah, an Agreement State, had been consulting with NRC officials concerning the disposal of contaminated wastes in uranium mill tailings ponds at active mills, and had notified UMETCO of its apprehension.'
The State's major concern involves the possibility that UMETCO, instead of aB. Paul Cotter, Chief Administrative Judge, ASLBP, Desigt stion of Presiding Of fice:' (July 20, 1992); ggg alms Presiding Officer, Memorandum and Order (August 5, 1992).
l
'W4ETCO's application noted the 600 tons as being less than 10% of the source material still available from TWCA for processing.
Hearing File, Attachment 1.
' Hearing File, Attachments 3 and 4.
i
(
)
l i
3 pursuing its avowed purpose of reprocessing for uranium, is i
8 actually engaging in the disposal of low-level radioactive waste.
Under its agreement, the State has regulatory jurisdiction over all low-level radioactive waste materials or other wastes going into such facilities.5 j
From January 1989 to April 1992,,NRC Staff personnel at Region IV and Headquarters wrestled with UMETCo's license application and the policy questions raised by a State of
~
Utah claim of possible jurisdiction over the material.
The critical issue in the Staff's view was whether tailings resulting from UMETCo*s processed material could qualify as byproduct material under Section lle(2) of the Atomic Energy Act of 1954, as amended (AEA).
Sam Hearing File, Attachment 8,
at 2.
In the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA), the AEA was amended, adding a new category to the definition of byproduct material, to cover the tailings or wastes produced from ore processed primarily for its source material content.'
I If the tailings from the SL2., Attachment 2.
'Certain terms have important special meanings in the r
context of UMTRCA considerations:
"lle.
The term byproduct material means the tailings or wastes produced by the extraction (2'
or concentration of uranium or thorium from any f
ore processed primarily for its source material content."
NRC regulations.The term " source material" has two definitions under As defined in 10 C.F.R. Care must be taken not to confuse them.
S 40.4, " source material" means:
5
s
4 f
material in question here are byproduct material, NRC's jurisdiction is clear under the Atomic Energy Act and it could authorize the materials tailings to be placed in the mill's impoundment.
To resolve any uncertainties, the Staff brought the matter before the Commission and issued new proposed licensing guidance for public comment.'
(
The Cdmmission notified the Staff it had no objection to the UMETCO license amendment provide'd the amendment met the proposed guidance criteria.
Th e S t a',f f, determining the criteria had been met, issued the li' cense amendment and authorized UMETCO's plant testing of the material.s The State then filed its hearing request'.
Pursuant to 10 C.F.R. 5 2.1231,- a hearing file has been made available by the Staff, a prehearing conference and site visit to view the White Mesa Mill facility and material (1) Uranium or thorium, or any combination thereof, in any physical or chemical form or (2) ores which contain by weight one-twentieth of one percent (0.05%) or more of:
(i) Uranium, (ii) thorium or (iii) any combination thereof.
Source material does not include special nuclear material.
Thus, in this case, " source material" could mean both the l
ore (containing at least 0.05% uranium) from which UMETCO I
plans to extract uranium and the uranium itself.
To avoid I
confusion, in this decision, tae term " source material ore" means the former.
7Hearing File, Attachment 8, Taylor to Commission (April 16, 1992); 57 Fed. Reg. 20525, 20530 (May 13, 1992).
sid., Attachment 9, Chilk to Taylor (May 13, 1992); 0, Hall to UMETCO (June 2, 1992).
c t
5 was conducted by the Presiding Officer, and presentations by the parties have been timely filed.'
II.
DISCUSSION 1.
The State of Utah argues that a proper analysis of the feed material is fundamental to determine which governmental entity has regulatory jurisdiction.
Asserting the State's regulatory control over solid or mixed waste as well as low level radioactive waste,and naturally occurring radioactive material (NARM), Utah claims NRC only retains jurisdiction over the processing of source material ore.
The Resource Conservation and Recovery Act (RCRA) places regulatory authority over solid waste (to include hazardous vaste) in the Environmental Protection Agency (EPA).'"
Hazardous waste is solid waste as defined by EPA in 40 C.F.R.
Part 261, Subpart A, S 261.3.
If hazardous vaste, regulated by EPA, is mixed with radioactive waste regulated by the NRC, the combination would have to be disposed in a mixed wast'e facility.
Eg2 57 Fed. Reg. at 20532.
- However,
' Presiding of ficer, Memorandum and Order, November 6, 1992.
As the Staff notes (Staff Brief at 3), the Presiding Officer provided the State an opportunity of rebuttal to the other party presentations.
This is an informal proceeding and the offer was intended to expedite the development of the record.
The burden of prcof was not changed thereby and neither the Staff or Licensee requested an opportunity for surrebuttal.
"The administration and enforcement of the RCRA program in Utah has been delegated by the EPA to the Utah Department of Environmental Quality.
State Brief at 7.
6 specifically excluded from the definition of solid waste in RCRA is byproduct material as defined in Section 11e.(2) of the Atomic Energy Act of 1954, as amended."
The State argues that since it has jurisdiction over the processing of RCRA waste and the disposal of solid waste within its borders, NRC regulations should contain specific procedures and requirements to insure that any material received by NRC licensees is not hazardous.
The State also contends that the relevant parts of an alternative optional testing procedure in the new guidance, a Co-disposal test, should be included in NRC's license amendment decision."
The State claims that by following its new guidance in granting the UMETCO license amendment, the NRC committed j
multiple errors in first, utilizing a new and unreasonably expansive definition of ore; second, by placing undue reliance on UMETCO's certification that the TWCA material contains no hazardous waste; and third, by accepting, without an independent review, UMETCo's certification that its primary purpose for receiving and processing the
{
i
~
material was the recovery of uranium."
l In setting forth its new guidance, the NRC expanded the meaning of the term ore, as used in Section 11e.(2) of the I
"42 U.S.C.A. 6903(27).
" State Brief at 16.
j i
"Id. at 11.
af l
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i
? f 7
Atomic Energy Act of 1954, as amended.
This was to permit, like the present case, feed material other than natural ore to be used by licensed mills to extract source material.
The State contends that, with the new definition, the NRC has broadened the class of materials considered as ore to such an unreasonable length that it does not conform to UMTRCA's mandate and policy.
In support of its position, the State submitted a list of various definitions of "cre" compiled by the U.S.
Bureau of Mines, none of which are compatible with HRC's definition."
In order to qualify material as Section 11e.(2) byproduct material under the new guidance, a certification 1
is required that the primary purpose for receiving the ore 4
is the extraction of uranium."
The NRC received such a certification from UMETCo.
The State contends there is an obligation on the part of the Staff to look behind the required certification, where, as in circumstances such as here, UMETCo was being paid to receive the material and where the possibly unprofitable economics of processing for uranius raises questions concerning the factual objective of the transaction.
The state submitted evidence to indicate that UMETeo faced difficulties in realizing any profit from
" State Drief at 19-21 and n.46.
"57 Fed. Reg. at 20531.
?
i 8
extracting uranium from the TWCA material; also that it may have benefitted TWCA financially to compensate UMETCO to receive the material rather than having to pay higher disposal costs for it as mixed or low level radioactive waste.8' Finally, it is the State's position that this transaction, based on NRC's new def nition of oro, may jeopardize the ultimate transfer of the material to the Department of Energy (COE).
For the long term protection of the public's health, the Atomic Energy Act requires that, prior to license termination, land and byproduct material on it must be transferred to either the Department of Energy or the State where it is located.8' The State contends that a successful Court challenge to the Staff's new definition of byproduct material could result in DOE being relieved of the obligation to assume future long-term custody and title to the land and material involved here.
In support of this concern, the State reference,s commentary in the new guidance that portends some reluctance on the part of DOE to handle commingled materials.s The State concludes by requesting license 8' State Brief at 21-26.
8'42 U.S.C.A.
SS 2113(a)(2), (b) (2),
is57 Fed. Reg. at 20528.
F v
d
1 T,7
3<
l 9
hmendment changes to (1) require submittal of information on the transaction arrangements between UMETCO and TWCA and also economic processing information on uranium recovery from UMETCO so the NRC Staff can independently determine whether UMETCO's purpose was for uranium processing or waste disposal; (2) require UMETCO to develop protocols in its
~
current processing to determine whether future materials it processes contain RCRA hazardous waste; and (3) require the Staff to follow its own procedures on consultation with the DOE that are set forth in its new guidance on the transfer of non-11e(2) byproduct material."
2.
In UMETCO's Brief, the Licensee informs that the process treatment sludge from TWCA has a grade of 0.18%
uranium, a proportion comparing favorably with concentrations in other material processed at the White Mesa Mill.
The Licensee further responds that its testing demonstrates that the material is not a hazardous waste.2o Accordingly, in its view, the material does not come under EPA or the State of Utah's regulatory framework.
Pursuant to NRC's Staff request, as previously indicated, the Licensee filed a certification that the material was not RCRA hazardous waste and that the primary purpose for processing the material was the recovery of uranium.22 The
" State Brief at 29-31.
2oUMETCO Brief at 4.
2:Id. at S.
e
y t
5 e
10 Licensee also responded to an inquiry, from the Utah Solid and Hazardous Waste Control Board, that its non-hazardous waste determinations had been confirmed using a new EPA Toxicity Characteristic Leaching Procedure (TCLP) test method. 22 The Licensee contends it has performed all i
required testing under appropriate EPA and RCRA protocols to prove the materials are not hazardous wastes.23 UMETCO terms the State's argument misdirected in the latter's assertions that the NRC has to review the economic particulars of the TWCA-UMETCO transaction to determine whether the transfer is, in reality, a sham disposal.
Without a regulatory requirement, in Licensee's view, this is a challenge to NRC's licensing guidelines.
Citing Union of Concerned Scientists v.
AEC, 499 F.2d 1069 (D.C. Cir.
1974), the Licensee contends the NRC hearing here is an inappropriate forum to challenge po'licies prescribed by Commission regulation.8' UMETCO arg.ues further that if serious evaluation were to be provided to the State's
" economic" argument, EPA's regulatory considerations for determining sham recycling or disposal has more relevant criteria.2s According to UMETCO, financial consideration is enly one of six factors considered by EPA and then only "Id. at 6.
23I4. at 17.
8'Id. a t 7-10.
2550 Fed. Reg. 614, 637-638 (January 4, 1985).
+'
11 where the potential for sham disposal is high.
In the Licensee *s view, the UMETCO-TWCA transaction would have no difficultypassingmusterusingEPA}stestingprocedure."
In referring to the State's allegation that the new NRC definition of ore is too broad, the Licensee argues that this contention also basically challenges the regulatory guidance,'and is improperly raised in the present forum.
UMETCO also cites case authority in support of NRC's new definition of ore.2r To the State's argument that UMETCO should be required i
to meet the co-disposal test contained in the new guidance requirements for disposal of non-11e(2) byproduct materials, the Licensee alleges the TWCA material meets the " key substantive elements" of that test.2a In responding to the State's call that the Staff require UMETCO to develop additional protocols for testing further shipments of TWCA waste, the Licensee states it has no basic objections in future amendments to the development of appropriate hazardous waste determination protocols."
Finally, the Licensee indicates the State also calls for different licensing guidance than is applicable here, in claiming there should be a license requirement to ensure 3MTMETCO Brief at 10-15.
8'Id. at 15-16.
"Id.
"Id. at 16-18.
i
"Ql e
,; e 12 that DOE will either take title to the material at issue, or as a minimum, follow the procedures outlined in NRC guidance for non-11e(2) byproduct material.
UMETCO contends that the NRC has regulatory license control over the mill tailings and wastes in controversy and there is no evidence that the DOE vould refuse to exercise its responsibilities under the law."
3.
The Staff's Drief alleges,that Utah's arguments fail to address four of the five issues admitted for adjudication in this proceeding and raises five new issues instead.
In the Staff's view, "it appears that Utah no longer challenges the contents of the material on site, or the (license) amendment before the Presiding Officer."
Although the Staff response addresses all the issues raised by the State, it submits the Utah b'rief should be rejected without further consideration.
The Staff further points to Utah's neglect in not detailing deficiencies or omissions in the license application as required by 10 C.F.R. 5 2.12 3 3 (c). "
In support of it's licensing action, the Staff alleges that the material received by UMETCO, after testing and evaluation, was determined to be uranium ore and not hazardous or mixed waste.
T1e Staff references evaluations or testing performed by the Oak Ridge National Laboratory, "Id. at 18-20.
" Staff Brief at 4-7.
l
?I e,
I
^
13 UMETCO, TWCA, and the Oregon Department of Environmental Quality.
ReferringtoUtah'srequest{orsafeguardsin license amendments for TUCA materials in future shipments, the Staff indicates that consideration of those activities would have to meet the same standards but such issues are
- ,i outside the jurisdiction of the present proceeding.88 The staff's brief provides a lengthy commentary on the commission's proposed new guidance.88 It states the i
guidance was developed to meet a clarification of the l
statutory detinition of byproduct material, as enunciated in i
4 a rederal court of Appeals decision.
The clarification was necessitated by previous NRC definitions which categorized such materials according to their initial use rather than their mineral and chemical characteristics.
The decision (Kerr-Meces v.
U.S.
truelear Reaulaterv commismiqm, 903 F.2d 1 (D.C. Cir. 1990)) held that in applying the definition of byproduct material in the Uranium Mill Tailings Radiation control Act of 1978 (UMTRCA), the NRC provided too n ow an interpretation of ore processed primarily for its sou_,e material content.
The Court held that NRC's action frustrated the purposes for.which UMTRCA was enacted -
"to bring previously unregulated radioactive end products of...
sotrce material extraction.... within the scope of HRC p
83 d. at 7-9.
1 S.
I' 3857 red. Reg. 20525, 31 31g.
EY
15 In connection with the jurisdictional issue raised by the State, the Staff asserts that even though delegation of regulatory control over ucire materials was made to ' Utah as an Agreement State, the Nnc retained jurisdiction over the processing of source materials and section 11e(2) byproduct material." On Utah's claim that the NRC has an obligation to determine whether TWCA's purpose in shipping the material to UMETCO is waste disposal, the Staff responds that TWCA's t-motive is irrelevant and neither UMTRCA nor the Court in Kerr-Mecen refer in any way to the intent of the supplier of ore material."
i In responding to the State's argument concerning the i
potentially uncertain role of the DOE in this transaction, the Staff states there is no requirement in the law that DOE certify its willingn'ess to take ultimate jurisdiction over the materials involved in this controversy.
Since the material is section 11e(2) byproduct material, unless the State retains custody, the DOE is obligated under UMTRCA to assume control of it."
on the State's claim that the Staff should be required to use the Commission's guidance on disposal of non-Section 11e(2) waste material at NRC licensed tailing sites, the staff replies the claim raises a
" Staff Brief at 16.
"Id. at 16-17.
"Id. at 17-18.
b
7 3:
e 16 new issue, and no reasoning being supplied, the matter must be dismissed.4a P
The Staff also argues it has no authority to review the economics of the TWCA-UMETCO transaction.
The area is outside the zone of interests protected by the Atomic Energy Act according to the Staff, and economic concerns are not reviewed in license amendment applications.
Consequently, this claim also requires dismissal.'8 4.
In a response brief, the State claims (1) it has the right in this proceeding to challenge NRC's new guidance; (2) it had not raised issues outside the scope of the proceeding; and (3) the NRC's reliance on the guidance led to deficiencies and material omissions in the UMETCO license amendment.**
The State contends the license amendment disputed herein was issued at a time when the new guidance was open procedurally for public comments.
Accordingly, the guidance has not reached the status of a substantive rule and the staff's actions based on it and the guidance itself are within the scope of the present proceeding."
The State alleges that the overriding issue raised in its request for hearings is whether UMETCO is engaged in
- Ld.
'814. at 19.
- State Brief at 1-11.
"Id. at 1-4.
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17
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p.1 waste disposal or reprocessing.
If engaged in vaste disposal, the State, not the NRC, has jurisdiction.
As a consequence, characterization of the materials and the jurisdiction issue are basic matters within the scope of the proceeding and the State's arguments are directed at either or both of those questions; these issues are also involved in ascertaining DOE's obligation to take title to the materials."
The State contends the new definition of "cre" in the guidance is too broad and therefore the NRC must analyze independently whether the material is waste material.
Not j
having done so, the license amendment is deficient."
The State proclaims it is NRC's basic responsibility to determine whether mirrCO is engaging in reprocessing or waste disposal.
And to rely on the Licensee's certification alone is an abdication of NRC's obligation to ascertain objectively whether the material is being received to avoid low level radioactive waste disposal requirements.
The state contends the substance of the transaction can only be determined by reviewing related processing and economic information.
And finally, the State reiterates that a mischaracterization of the materials by the NRC will place "Id. at 4-5.
"Id. at 6-7.
gy:
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a 18 in jeopardy DOE's legal responsibility for their long-term custody."
III.
ANALYSIS E
I A.
Legal Issues 2
Anumberofissueshavebeenj{inedinthisproceeding l
raising basic questions on the applicability of NRC's proposed guidance."
The major issues are first, whether the criteria that hazardous or mixed waste are not to be included in NRC's licensed 11e(2) byproduct material facilities are satisfied in this case; second, whether the Licensee's certification that feed material is to be processed primarily to recover source material is adequate to assure that waste disposal is ned intended; and third, s
whether the proposed definition of cro, as used by the Staff in this case, is within the regulatory authority of the NRC.
Prior to treatment of these issues, other controverted matters can be briefly resolved.
"Id. at 7-11.
"The Staff has noted at several points, that the Commission itself approved the issuance of this license amendment provided it met the guidance.
ESA NRC Staff Brief at 20-21 and NRC Staff Response to Questions at 2.
At the time of its approval (in the form of a "no objection"), the Commission did not have before it the particular arguments raised by the State of Utah in this proceeding.
19 i
(1) Minor Issues UMETCO argues that much of the State's contentions are inappropriate in the present proceeding as they constitute a challenge to NRC's licensing guidel nos.
It is settled procedure, however, that guidelines, let alone proposed 9
-l guidelines as involved here, are not protected from confrontation.
Unlike regulations, they merely present acceptable methods of meeting regulatory requirements and are subject to questioning in adjudicatory hearings.5 The Staff contends that no consideration should be provided the State's Brief since it fails to address most of the issues admitted for adjudication, raises new issues in 1
its place, and neglects to detail deficiencies or omissions in the license application as required by 10 C.F.R.
S 2.1233(c).
Although propounded in an extended manner, the State basically raises questions in this proceeding on jurisdictional authority, claims of errors in NRC reliance on the new guidance with its expanded definition of ore, concerns'about the responsibility of the Department of Energy to assume long-term custody of tailing ponds and 4
byproduct materials, and proposals that the NRC obtain and evaluate Licensee's processing and economic information.52 SMetrenolitan Edison comoany (Three Mile Island Nuclear Station, Unit No. 1), ALAB-698, 16 NRC 1290, 1299 (1982).
5' State Brief at 6-26.
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The discussion of these matters does in' fact trace to the issues admitted in this proceeding.5' With respect to r
failure to detail deficiencies or omissions in the license application, as required by 10 C.F.R.
S 2.1233(c), the 3
Staff's concern is not well-founded.
The State's case is I
i",
directed at alleged deficiencies in NRC,s processing and l
approval of tlie Licensee's application and not the s
application itself.53 f
Both the Licensee and Staff argue a lack of merit in the State's claim that the license approval should contain
(
some assurance that the Department of Energy (DOE) will take long-term custody and control of the UMETCO property.
No l
statutory or regulatory requirement demands that Agency's I
prior concurrence, agreement or approval of impoundments of byproduct materials.l The statutory responsibility of the q
1
)
[
DOE is clear once waste mattrial or mill tailings comes within the NRC's lic'ense purview as byproduct material.
A different view would be tantamount to an absurdity that t
agencies of the Federal Government should certify to the performance of their duties and intent to carry out the law.
The Staff analysis in the proposed guidance, which discloses tha' uncertainty of DOE regarding its responsibilities for long-term custody, only refers to the disposal of unn-11e(2) i 58 Presiding Officer, Memorandum and order at 2 i
(November-6, 1992).
'8 State Brief ati 30.
i l
1 i
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-v 21 e
byproduct material."
No basis has been provided leading to a conclusion that DOE will not live up to its t
l responsibilities concerning the disposition of byproduct material.
The Licensee and Staff each comment adversely on the State's claim that the Licensee should be required to develop trotocols for future shipments of TWCA material.55 J
l Although UMETCO indicates it has no objection to future appropriately imposed requirements concerning hazardous l
waste determinations, the Staff's argument that the question has no place in the instant proceeding has merit.
The issue here is the proprie$y of UMETCO's license amendment granted by the NRC.5' Additional shipments of the TWCA material to l
UMETCO are not matters that can be considered for adjudication in this proceeding.
If pursued, these only become subjects for future licensu amendment i
t consideration.5' Due to the substantive nature of this contention, however, a recommendation on it is included l,
hereafter.
l "S7 Fed. Reg. at 20528.
85Staff Brief at 8-9; UMETCO Brief at 16-17.
l
" Hearing File, Attachment 10.
S' Presiding Officer, Memorandum and Order at 2 (November 6, 1992); 333 also Prehearing Conference Transcript (Tr.) at 37 (October 29, 1992); 113 also Carolina Power and Licht Comnany (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), CLI-80-12, 11 NRC 514, 516-517 (1980).
4 9..
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22 The Staff indicates the State raises a new issue in s
suggesting that, for the TWCA material, tLe NRC use the co-disposal test in the proposed guidance procedures for disposal of non-Section 11e(2) wastes.se Although the State does not provide explanations for the " relevant portions" of the test that should be used, its proposal appears to relate again to the State's concern that DOE will ultimately refuse to accept custody of these materials."
The conclusions provided heretofore concerning DOE's t
acceptance of it's statutory responsibility for byproduct material suffices to reject this issue as well.
The State t
does not, except for the DOE issue, provide explanations to justify the application of other provisions of the Co-disposal test.
(2) (Major Issues) 1.
The first major issue (which involves the jurisdiction question) is whether the evaluation of the TWCA materials, demonstrates that hazardous or mixed waste are not
- included, i
All parties in the case agree that uranium mill feed materials should not be mixed waste, lig., a mixture of
" Staff Brief at 18-19.
" State Brief at 16 and 31.
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hazardous chemical waste and radioactive material."
If the feed material is.found to be mixed waste, the tailinas resulting from the processing of that material for its a
if$
source material contbnt may be hazardous and subject the "x
1
.ff).
tailings to a complicated dual regulation by NRC and EPA."
1 3
'i 5
" Hazardous waste means those wastes designated as hazardousbyEPAreg;ulations in 40 C.F.R.
Part 261.
f
" Uranium Mill Facilities, Request for Public Comments on Revised Guidance on Disposal of Non-Atomic Energy Act of 1954, Section 11e.(2). Byproduct Material in Tailings Impoundments and Position Guidance on the Use of Uranium Mill Feed Materials Other Than Natural dres, 57 Fed. Reg. 20525, May 13, 1992 (Guidance).
C The Staff's guidance'for the use of feed materials other than natural ores has instructive bac); ground.
The Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA) amended the Atomic E6ergy Act (AEA) to specifically include uranium rad thorium mill tailings and other wastes from the' process as radioactive material to be licensed by NRC.
Specifically, the definition of byproduct material was revised in Section lle.(2) of the AEA to include "... th'a tailings or waste. produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content."
The defi'nition of byproduct material in Section lle.(2) of the AEA includes all the wastes i
resulting from the milling process, not just the radioactive components.
In addition, Title II of UMTRCA amended the AEA to explicitly exclude the requirements for the Environmental Protection Agency (EPA) to permit lle.(2) byproduct material under the Resource Conservation and Recovery Act (RCRA).
The designation of 11a.(2) byproduct material contrasts significantly with the situation for source material and other radioactive materials controlled under the authority of the AEA.
This possibility for dual regulation by both the NRC and EPA can become an 1
issue when dealing with mixed hazardous vastes.
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24
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And if the feed material is found to be a mixed waste, jurisdictionforre;gulatingitfallswthEPA.
Thus if the 7.,
material received by UMETCO is determi,ned to be hazardous
(
I
',j waste, EPA has juri'sdiction.
].
3 As previously' indicated, the EPA has delegated i
administration andjenforcement of the ederal RCRA program to Utah."
$ccordingly, the State of U,tah, under its authority from EPA for the handling of' RCRA materials or under its agreement authority from the,NRC for the disposal l
of low level radioa'ctive vaste, regulates mixed waste within the State."
h In its request for a hearing, thd State expressed a j
belief that UMETC01had not independendly characterized the materials and was relying instead on a'n outdated RCRA test, conducted by TWCA in 1987, to verify t e feed materials did not contain RCRA colnstituents."
The State complains that a
the NRC relied on Licensee certification under NRC's new As a result of UMTRCA, NRC amende Part 40 to regulate the uranium and th,d 10 C.F.R.
orium tailings and wastes from the milling process.
Thus, under h.'.
normal operation, all the tailings and wastes in if an NRC or Agreement State licensed mill producing Y
uranium or thorium are classified,as "11e.(2) 1 byproduct material" and are disposed of in tailings piles regulated under Part 40.
They cre rot subject to EPA regulatton under RCRA.
57 Fed.
Reg. at 20531.
"Sucra, note 10.
i; "Sucra, note 5.
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,' ; t guidance to determine that the TWCA material is not an RCRA mixed or hazardous waste.65 The State does not offer evidence in its brief that it considers the 600 tons of TWCA material currently at UMETCO's White, Mesa Mill to be a mixed waste.
In contrast, UMETCO and the, Staff offer convincing evid'ence that the TWCA material does not contain characteristic or listed hazardous waste subject to regulation under RCRA or the State., UMETCO submitted, in response to Staff requests during the license amendment i
review, an analysis by TWCA of the m,aterial existing in the V-2 pond located at the TWCA site.
This analysis, performed in June 1987, established that on the basis of the then existing EP Toxicity Test, the mater,ial did not fail any of the tests.
At that time, TWCA anticipated the now existing EPA protocol, the Toxicity Characteristic Leaching Precedure (TCLP), and tested six compounds fodnd to be present in the TWCAmaterialwhichwerepartofthe)TCLP.
When these six compounds were tested, they were not found in the extract,
(
thus confirming they would not be considered hazardous by the existing EPA TCLP rule.
The 1987 tests performed by TWCA confirmed that the matarial is not ignitable, not corrosive, not reactive, does not exhibit characteristics of IP toxicity, and does not contain 40 C.F.R.
Part 261 listed hazardous vaste."
State Brief at 6, 7.
i l
"UMETCO Brie f, Appendix at 4-2p (December 18, 1992).
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26 In September 1989, the Oregon Department of Environmental Quality reviewed and concurred with the TWCA determination thap the V-2 materials were not hazardous weste as defined by 40 C.F.R. Part2f1ortheOregon regulations.
Finally, in June 1992, UMETCO had the TWCA m
material currently on-site at the White Mesa Mill retested using the current, EPA TCLP.
The results of this test ccr. firmed that RCRA materials are not present in concentrations close to regulatory limits and that the feed material is not considered a RCRA hazardous material."
In January 1989, the NRC conducted an unannoun:cd radiation safety inspection at UMECCO White Mesa Mill.
The NRC collected sam'ples of the TWCA material on site and forwarded the samples for analysis to Oak Ridge National Laboratory.
ORNL identified several hazardous constituents I
in the material, but did not classify the material as hazardous waste as defined by 40 C.Fi.R. Part 261."
On the basis of this inspection, the Staff requested the Licensee to verify that the identified hazardous constituents did not result in classifying the material as a hazardous waste as d
(.
defined by EPA under 40 C.F.R. Part 261.'O The licensee
{.
Id., Appendix at 3.
j
?
" Letter, R. A.
Van Horn, UMETCO to Ramon E.
- Hall, 1,
Director, URFO, NRC (July 21, 1992).
" Hearing File, Attachment 6, NRC Inspection Report 40-8681/89-01 (May 8, 1989).
701d., Attachment 5 (April 10, 1989).
4
T:
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,., y i
1 r
..?
submitted information to the Staff and the Staff found that r
f.
the feed material met the criteria of the new draft D.
6 guidance."
A finding that the TWCA material was not v.
i f
hazardous, was later reconfirmed by the Oregon Department of N-Environmental Quality.'2 On the basis,of UMETCO's and the Staff's filings, it must be concluded that the feed material
}i received from TWCA is not a mixed waste.
p g-The NRC Staff, reviewing the license amendment) request c
has been given the,new guidance, as previously mentioned, to f
determine if the feed material is mixed waste."
Under the guidance, proposed feed material would not be approved for processing at a licensed mill if the material were hazardous
).
3 or mixed waste.
The guidance requires the licensee to show that materials proposed for processing are not hazardous or mixed waste. The guidance also provides the option for I
the licensee to certify under oath or affirmation that the feed material does'not contain hazardous waste."
t The State does not argue in this case that the material is hazardous.
The State claims that the license
}
s.
e.
E "Id., 1, Memo to Docket File No. 40-8681,
@li-Pete J. Garcia (June 2, 1992).
)
72 F.,
Letter from: William H.
Dana, ODEQ to Ramon E.
- Hall,
, [-
URFO, NRC (July 1, 1992).
]Y[
"57 Fed. Reg. at 20530.
'J
[
Ip' "Id.
.J.
[s; "Id. at 20531.
I l 7' Utah Brief at 7-10.
?
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el
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5 i Ad
.4n.
28
- v f.-
q Ti certification that the material does not contain RCRA i
hazardous waste is inadequate and th,at the new guidance should contain relevant portions of the Co-disposal Test."
UMETCO believes,,as indicated, that,it has performed all the required testing;under appropriate EPA RCRA protocols, and has demonstrated that the material is not an RCRA hazardous waste.
Any testing requirements would be for future licen e
}'
amendments and are not appropriate for discussion in this proceeding.78 Utah's concern with the NRC's basis for accepting the material seeks a requirement for the Staff to follow a different procedure in its review of amendment applications, thus challenging the Staff's review activities and future amendments."
It must be stated that the Staff's new guidance for j
determining whether feed material is a mixed waste appears confusing.
Part B, paragraph 2 of the Guidance entitled
" Determination o'f whether the feed material is Mixed Waste" states in,part:
If the licensee can show that the proposed feed material would not be a hazardous or mixed waste, if not proposed for processing at the mill, this issue is resolved.(80)
(Emphasis added)
"Id. at 15-17.
"UMETCO Answer Brief at 16-17.
" Staff Brief at 6.
sc57 Fed. Reg. at 20532.
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f I
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29 f,f It then goes on to enumerate certain specifics defining i
ip, hazardous waste.
However, paragraph 3 of the guidance 1
entitled "Determinat' ion of whether the, ore is being processed primarily'for its source-matdrial content,"
U. '
i contains the following:
b.
Licensee dertification test.
If the licensee certifies under oath or
~
affirmation that the feed material:
(1) is being reclaimed or recycled in accordance with RCRA, or does not contain RCRA hazardous waste.
i The guidance, accordingly, appears to provide two approaches to assuring that the feed material does not contain hazardous constituents.
Had the Staff not used its traditional approach to assuring compliance with its i
requirements, the use of only a certification without knowing the underlying basis to assure that the feed 9.
material was not a mixed waste may not have been adequate.
v I,f' i As found above, however, in this case the NRC and the C
(f Licensee went beyond mere license certification to determine d'.
that the feed material was not a mixed waste.
W.-
e u '.
e G-Dased on the information in the Hearing File reviewed if.'
I').
above, it has to be concluded that the TWCA material on-site t.
at the UMETCO White Mesa Mill does not possess the
- ::[
appropriate characteristics to be considered hazardous N
r}
waste.
Although the finding here must be that the feed h$
material at the White Mesa Mill is not a " mixed waste," it
,f.j.
is suggested that specific protocols in future UMETCO i.k.
license amendments to determine if alternative feed
.9
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lkbi
g(y ~
~
s c
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30 g.y i
[j; materials contain hazardous components might be reassuring.
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?-
2.
The second basic consideration is whether pyJ certification, under oath or affirmation by the Licensee, p,
.j".
that the feed material is to be processed primarily for the
'}I recovery of uranium and for no other primary purpose, is j
determinative on the issue that the process is not for the I
disposal of w&ste.
A fundamental grgument of the Stat,e centers on a requirement in NRC's new guidance that a licensee certify its primary purpose in processing the feed materials to be the recovery of uranium.
The State's a,rgument focuses on the circumstances in,this case wherein the Licensee mill processor or " buyer",is being paid to receive the material.
It is the State's view, in the light of this circumstance, that where, as may be the case here, the market for uranium is depressed, costs of waste disposal are high, and the close proximity of competitive natural ore for processing uranium substantially would reduce transportation costs, an obligation rests en the NRC to do something other than merely accept Licensee's certification.
And here, that
' ll other, the State contends, is to search the financial considerations and processing costs to determine the m
%y,.,
transaction's authentic purpose.
In the State's view, a
-f mere certification doesn't do it.si
?/
j a: State Brief at 22-26.
'f. t -
i h'h
- 7. -
e
\\
l 31 The Staff's response, buttressed by; case precedent, is that the financial reviews suggested by the State are outside the health and safety zone of interests protected by
\\
the Atomic Energy Act.
No requirement exists in NRC regulations on uranium mill licenses for obtaining information on costs of purchase or processing of feed materials."
It is the Staff's position that profit arrangements in materials transactions are irrelevant to the licensing 4
process as long as there is an affirmation that the primary purpose is to recover uranium.a' The determination of
)
whether ore is being processed primarily for its source material content, according to the Staff, is to be based solely on i
the licensee's certification under oath or affirmation that the feed material.
- 2) is to'ba processed primarily for the recovery (of uranium and for no other primary purpose.(s)
No question has been raised that the Licensee in the instant case has not complied with these guidance prerequisites.' The challenge is to an alleged inadequacy in those requirements to meet the circumstances of the present case.
The basis for the Staff's contention that economic and sStaff Brief at 19.
sStaff Response to Questions from Presiding Officer at 4-5 (March 2,1993).
"Id. at 6.
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b,
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h 32 Jr processing considerations involved in the UMETCO materials y..
Q acquisition are outside its purview is not relevant here.
t:
i l'*.[
In the cases cited in the Staff's Brief, economic issues were rejected as matters for litigation since they are l $D.
generally considered outside the health and safety domains
??
Y I;
which constitute the normal regulatory arena for the NRC.
.ff
' g..
Here, howevstr., the matter is one of cas, ting light on the raison d'etre of the transaction itself. Without more xi substantive reasoning, the State's claim for having the
/. (
I [;,
transaction walls pierced cannot be easily dismissed.
E Reviewing some of the particulars of economic matters q.
involved in license transactions is simply one means by n
a f_i which a licensee's intention for obtaining material can be
+.
f.
determined.
Arguably, this can become a valid area for y
(.
questioning where a, licensee is being paid to receive TWCA's processed waste tailings.
Although not required for a resolution in this case, the reasonableness of the State's proposed criteria against 3
the standard,used for this license amendment requires some
'l,'
consideration to determine whether a review of economic factors should be made part of NRC's guidance in a proper K
case.
In the Staff's view, the certification provision i
" eliminates the need" for any other resort to the licensee's e
motives or intention concerning the proposed procescing.
D Citing the Court's edict in Kerr-McGee, the Staff asserts that " tailings from ora substantially erecessed for source w
M 4..
h.hdt.
]
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{*i't
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material (is) Section 11e.(2) byproduct material".es
~-
(Emphasis added). ;However, this assertion appears to have j
54<J an "after the fact" or retroactive aspect somewhat dissimilar to the prospective outlook contemplated by a 1 3 certification. Apparently, the only geans by which the W genuineness of a licensee's intention can be tested is 1 pJ.' provided by.the regulations concerning false statements 1,. which, in the Staff's view, would "be evident if uranium were not extracted or if the material,were disposed without ~ processing."" NRr:.' regulations require that licensees maintain records of byproduct material,, provide opportunities for inspections, and make records of such materials available to the NRC.e7 An opportunity, therefore, to retroactively police compliance with the t certification requirement may be seemingly provided. However, neither the regulations nor guidance speak to reviewing any specific amount or quandities of uranium to be extracted. It appears credible under existing procedures, for mill operators, intent on diseosino of waste material in f mills tailings ponds, to merely process minimum extractions ji of uranium. Consequently, the question arises whether a e, 5 certification, without more, would adequately protect v... against ulterior motives to dispose of waste. ,,y .c h. asy, i
- t$
[/; say, g. t s710 C.F.R. SS 40.61(a), 4 0. 62 (a) (b). 6:. i
- i. i.
\\ j _;.,'. m ~~ T. 1,I (if. 34 a. Having raised that possibility, however, it is unnecessary for a resolution of this ca,se, that we need be concerned by such other considerations. UMETCO has requested and been granted an amendment,to perform plant 3.i tests of the 600 wet tons of TWCA material on its premises in order to determige whether it can process the recovery of Mg uranium economically. It is authorized to do that and [ nothing more. As the Staff testimony r,eflects, future shipments of material from TWCA in Oregon will be' subject to the licensing amendment process.as It is not evident from the filings,that the State's principal concern is, focused on the specific license ,h j amendment involved in this proceeding -- that authorizing -l. UMETCO to test the alternative feed materials. In early correspondence, the State cautioned UMETCO that, unless euthorized by the NRC or the State, the Licensee was not to " continue to receive (TWCA) material in Utah." Emphasis supplied." The State's principal interest appeared (and appears) to be the future shipments of TWCA materials from the state of Oregon. Its requests for relief can reasonably be construed as only directed at such future shipments: the test amendment should be used not only by UMETCO to plant test 'the TWCA material but also by the NRC to require submittal of data so that it can make an adequate determination about the TWCA saTr. 37 (October 29, 1992). " Hearing File, Attachment 3. t
- ?'
g
(b$ ' $!;kk.Y s .,y. }$. 7" l 35 material. The NRC will then be in a position to judge the merits of any future amendment requests by UMETCO to I receive TWCA materials.[") condition the license amendment to UMETCO to include a requirement that UMETCO report arrangements it has with TWCA and that UMETCO supply processing information' to the NRC so that'the NRC may make a complete independent analysis of the facts surrounding the TWCA material instead of relying on an unrealistic definition of ore and license certification.(") NRC must use this process test amendment to have UMETCO develen erotocols to determine whether any material it processes contain(s) RCRA hazardous vaste.(") (Emphasis added). 3, None of the foregoing nor any other statement addresses the testing of the TWCA material located at UMETCo's mill. In requestina.t responses from the State suggesting specific wording for an unacceptable license amendment in this case, the Presiding officer was advised the following would be ' adequate: A. s. Befo're the licensee may receive industrial process streams for secondary recovery of source material, the licensee shall: (1) Develop and receive approval from the.NRC of a materials testing program; and (2) on a case-by case basis, receive approval from the NRC for receipt of stch material where the NRC has concluded that the primary " State Brief at 2. "Id. at 3 0. "Id.
-__ --- --- --------- z,, ;;-- 7--- &..: g,.:.;3Q bf0.'5M?-TW3?~ " '.~T7X,T*'*...'[ s t hi5 ' o 36 t .,I purposA of processing is not waste disposal. Here again. the State's concern appears to be the future shipments of TWCA naterial for processing instead of the testing operations approved by the NRC." l In evaluating UMETCo's request for the license amendment,, the Staff complied with ti e Commission directive h in determining that the License amendment met the gu ida nce. As of the issuance of this decision, the new guidance has not been approved or re, vised by the Commission and the circumsta'nces herein may hav,e some impact on its future formulation. In order to assure, prior to processing rather than after, that disposal of waste is not involved in the handling of previously processed ore, the Staff may want to concider some of the State's suggested criteria to assist in resolving uncertain or ambiguous cases." [ In summary, although the circumstances of this L i particular transfer of materials raises legitimate questions for the NRC to consider in its review processes, it cannot be concluded that the issuance of the license amendment here i .[ was erroneously granted on the basis of a sham transaction. However, since there is no indication that the Staff intends " State of Utah's Answer to Questions at 1-2 (March 2, 1993). Staf f Requirements Memorandum (May 13, 1992); Letter, I y5 iall to UMETCo (June 2, 1992). t j "Sig UMETCO Brief at 11-15. e h
J/!.g. g Q t'F ?7tNM #M.?."y ": "'.T. N-w : g." - m ' 'j ,g.c ,' A A to? 4 d i 37 8 e
- g. '
to inspect the testing operations of UMETCO, during or after u [ its commencement and to assure that WETCO's testing l sy;- operations are implemented to carry out their stated i purpose, staff inspections of UMETCO's testing procedures b: BJ and operations should be implemented.' A. 2 j. The conclusion to uphold the licensing amendment has been reached to this point on the merits of the testing that and other tests not was carried out during NRC Staff revi,ew, required by the agency's guidance. A,s indicated, the j.c Licensee offered tests conducted by TWCA, the Oregon i r Department of Envi.ronmental Quality, and UMETCO itself as s. b. proof that the feedstock material did not contain hazardous 1 l waste. With this consideration climinated, there is no (g I further uneasiness that the issuance of the license h' amendment would impose dual regulation on the source c; material cre, or the tailings from the processing of that I t j.: source material. This was a concern of Congress and the NRC 'y j during the passage of UMTRCA, and was one of the principal U-reasons for the issuance of the agency's guidance statement k I,' with regard to alternative feedstock." s,. I' 3. The third fundamental issue is whether the new definition of ore in the proposed guidance, and as applied in this case, is beyond the regulatory authority of the NRC. y. F.h, ' E. ""To avoid the complexities of NRC/ epa dual 1 F regulation, such feed material (containing RCRA Wastes) Will l' not be approved for processing at a licensed mill." 57 Fed. k(' Reg. at 20530. l. l s: 1 o
tqQ L**;y!.y"?r '.~ c-e -
- y.,
~ ~.. .?w.... b r.: A g. $5' C?; - .^ .t -- 38 W,. e A[ This issue raises the question of whether the Staff if acted reasonably in issuing a liceqse amendment to test 'I i process alternative feedstock which.does not include RCRA J 3 regulated wastes. Nothing is found in UMTRCA or the AEA 4 expressly authorizing the NRC to do such, but again, the merits of the testing conducted on this material in this ,] case find's no reason for excluding the issuance of a license i amendment limited to the testing of the material and nothing more. The Staff went beyond the Li,censee's certification thattheTWCAmaterialdidnotincqudehazardousormixed t l waste before it issued the license amendment. The Staff not i l only conducted its own test through Oak Ridge National Laboratory on samples collected by NRC inspectors but i 1 required proof of a comparison of the concentrations of hazardous constituents in the source material with the normal tailings which are disposed at the site; required an I acsessment of the potential impact from disposal of the s I material on the site's ability to meet the requirements of f Criterion 5 of Appendix A to 10 C.F.R. Part 40; and required an assessment of the health and industrial hygiene hazards h associated with the possession and processing of the source 3 e.6 material." These tests, although not challenged or examined in this hearing, are evidence that the Staff has E analyzed the TWCA material in such a manner to demonstrate Q that the processing and introduction of the byproduct .b " Hearing File, Attachment 5. 4 i
, h. k W ?'..'. ?, D,..,';?'?:R *i'"'N ~ ,1 ' j p. "Y. ,I 39 6 k materials into the waste impoundment will do nothing to A threaten the health and safety of the general public beyond that which is already, allowable at the s,ite under NRC a gal2 licensing practices. .i The NRC's " Guidance on the Use of Ur'anium Mill Feed I Materials other Than Natural Ores" was issued in May of 1992." It was issued because the NRC had been receiving h requests from licensed uranium mills to profess feedstock a sfi that could not be considered natural cre. According to the in guidance statement, "(u]ranium mills were designed and j y operated to process natural uranium bearing rock (ore).... h There usually was no question of other f'eed material or what I \\ constituted ore."" However, with the advent of requests .6 to process what is now called " alternative feedstock," and the commission's decision to allow such material to be ~N: processed in licensed uranium mills, the staff was faced ig.f with a new problem involving the NRC's interpretation of the f, term " byproduct material." y-d,.. The wastes and tallings produced in a uranium mill f,6 processing uranium-bearing rock from nearby mines .'i would meet the definition of 11a.(2) byproduct 1 saterial. However, it is not obvious, from the i definition alone, whether wastes produced from t processing feed material that is something other than rock mine (sic) from the earth meets the
- f definition of 11e. (2) material. ('")!
/.- d
- )
- 57 red. Reg. 20525 (May 13, 1992)'
- i..
"M. at 20532. E Sv
- M.
d' i(
[ ' [ ~." ' " p'bfe,N (b 40 'I 'r For the purposes of regulation under the AEA, Section
- q 11(e)(2) byproduct material is defined as "the tailings or wastes produced by the extraction or concentration of
{ uranium or thorium from any ore processed primarily for its i source material Eontent."'88 Since current NRC regulations j. only recognize ore as being naturally occurring,802 the
- i
~( Staff chose to create a new definition of " ore" in order to t \\ facilitate the inclusion of the wasges and tailings from the l processing of alternative feedstocks within the definition i of 11(e)(2) byproduct material. The operative phrase which effectively includes the wastes and tailings from the processing of alternative feedstock within the definition of 11(e) (2) byproduct material is highlighted herein: { Ora is a natural or native matter that may be mined and treated for the extraction of any of its constituents er any other matter from which source material le extracted in a licensed uranium er thorium mill. The new definition of ore was made part of the agency's guidance statenant, and, the Staff is directed to make a determination "of whether the feed material is ore" using !,j the new definition.'88 It is with this definition that the v. state of Utah has taken exception. $) In the process of making its case against the UMETCo 1 license amendment, the state argues, correctly, that until l UH42 U.S.C. $ 2014 (e) (2).- ( ,iS
- 10 C.F.R. S 40.4 (1992).
i.' 7 0H57 Fed. Reg. at 20530. yt Sik' 1 M nE.L'
,, $%,y '. }30; -i-- c.~. Wy.?!v: x _ - :- y;x
- y 5
q. ,3 9,,, ; c Y.' g;,f - $j 41 the issuance of the guidance statement, ore was understood Lr a to be naturally occurring matter. yenthestaffchanged { 'l the definition of ore to include "any matter from which .~ source material is extracted," the new definition apparently x: 'g ;1 has no limits. According to the State, since the definition .l of ore underlies the scope of the statutorv definition of y 11(e)(2) byproduct material, "relian6e on the draf t guidance 4 definition of ore has created a diff6 rent and broador i definition of 11(e)(2) byproduct material than (that found .t in the Atomic Energy Act)." To treat 11(e)(2) byproduct material expansively for the purpose of determining whether certain radioactive waa_tas should be suf) ject to UMTRA's (sic) remedial requirements is an entirely ,I different inquiry to that involving the TWCA i material. The issue the state is challenging is the breadth of the materials that may be used for processing to create 11(e)(2) byproduct material. . The question here is whether the NRC should develop an expanded definition of 11(a)(2) byproduct material so as to expand the nuclear fuels cycle to include materials like the TWCA material....(8) A major thrust of the staff's legal justification for k[- its definition of cre cosas from the Kerr-Mecae decision interpreting those portions of the legislative history of t I ir i UKfRCA which dealt with the change 1,n the definition of 4 - T{ 7, l
- state Brief at 12.
i [4
- 1d. at 13-15.
U 97h. aM:.
x m 3 - - ' g gwp% -..... ~~,... f Aff' liW'k, & ',~.h. : ~ .,3 {,.. -. b. .S'..M;t C gs w?y
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.u .. o. A .c p;,[-. ..y.. g 1 .cN.. .o i >l s byproduct material.'f According to the[ staff's analysis i i of this case, "[a)s explained by the co,urt in Kerr-Mecco, i t.- f 1 ]. (UMTRCA) is to be construed to define 'cre' as any materialusedforth{eproductionofsourcematerial 7 s .i.... P .y; regardless of prior processing of the material."88' If s n this was the conclusion actually reachap by the court, it
- ..I 7 )
would appear that(th's staff's position is supported in law. I 1 And indeed, some of the language fr n that case appears to a dj i fit perfectly. } . [ However, a review of the legislati e history of the 'k,! UMTRCA and the Korr-McCoo decision raises doubts that the t Kerr-Meces decision provides as strong in endorsement of the i Staff's position. This conclusion is bttsed on several t ) ) factors First, at the time of the passage of the UMTRCA, .\\ Congress was addressing the regulation of the end products of uranium processing! and it never faced the issue of } alternative feedstocks entering the nuclear fuel cycle. As the staff indicates, uranium processing had been f tesIt is important to note the factual similarities r. between the Kerr-Mecen case and the case at bar. Both the Xerr-McGee and TWCA feecstocks contain(ed) at least 0 05% uranium or thorium and both are amource material" as that term is defined by NRC regulation. Also, both feedstocks had been z.illed previously for the extraction of elements other than source material. Indeed, the aorphanad" feeditock in the Kerr-Meces case rits the staff's ds9eription of alternative feedstock, or ore as that term is desined in the agency's guidance statement. 8taffResponshtoQuestionsfromthepresiding 5 Officer at 2 (March 2, 1993), citing NRC staff's Brief and Evidence on Issues Raised by the state of Utah ct 9-12 (January 6, 1993). l. l l h )
s:q. p f.,.l.pw-n. y w.%. c,. ,... ; ~ ns ~.~,< ~ gy,+.s e y.n ..ao -...v n., r ,:..,e ~,y. '.f.. W. n.<. m.,.v;. J.;. . m. ' g+. .g. .w e 1 \\ !(: . 2 43 .rsh traditionally concerned with natural ores until recent requests were made to process alternative foodstocks.'" The statements made,in the legislative history of the l{ passage of the UMTRC,A were not made with this narrow issue hjl in mind and they cannot be said to demonstrate Congressional A Tk' intent.'" It is ther,efore difficult to rationalize that 9 f: the Kerr-Mecae Court construed the UMTRCA to define ora as ~K'j;. any material used for the production of source material r/ ~ reaardless of orier erecessina of the material.888 Second, the Kerr-McGee Court's sta ements concerning ora are arguably dicta.888 Moreover, the' Court's example from Section 101 of UMTRCA that " implicitly" finds the Kerr-i McGee processed ors to be ore as that term is defined in byproduct material is difficult to understand and does not i c .p 8"57 Fed. Reg. at 20532. 8"chevren v. IIRDC, 467 U.S. 837, 862 (1984, citing Jewell Ridae coal corn, v. Mine Workers, 32S U.S. 161, 168-169 (1945). 88'At the, time of UMTRCA's passage, Congress never faced the issue of feedstocks contLining hazar'dous waste. Congress did not want dual regulation of: wastes and :n111 G tailings, and it seems unlikely that it kanted dual I; regulation of feedstock ores. 833 colloquy between >i Congressman Dingell and HRC Chairman Hendrie as set forth in jterr-Meces, 903 F.2d at 6. The Staff indicates its definition of ora can include hazardous waste. Rag Staff Response to Questions from the Pre siding Dfficer at 3. It is reasonable to expect Congress to be precise in defining critical jurisdictional terms going to the very power of an agency to regulate, such as it did when it removed byproduct material from RCRA regulation. 333, Ad., Act,U v. Fcc, 82 3 F.2D 1554, 1567 n.32'(D.C. Cir. 1987). 888903 F.2d at 7. j .4 i l y. a
y w.. w....~ -,.... 3,. k ?... .-ll% :- p ' .ss v y t
- s.
. g y, - 'hN - i 44 ./t provide strong guidance when Section 101 is read in its full 4 1.c h context. That provision makes reference to subparagraph 7 f (A) (11) which does not seem to prov,ide support for the Staff's justific'ation. Nor does the Court do any analysis to demonstrate tilat the provisions git cites even apply to the Kerr-McGee feedstock in question. r k ~ i Final 1y, the factual surroundings of the Kerr-McGee i I case obscure the extent of the reach of the opinion. All of the Kerr-McGee material had been processed for its source material by the. time the case reached the Court. The Court was addressing NRC's refusal to take regulatory control over i i a portion of the material even though it was the clear intent of the UMTRCA for NRC to have regulatory control over j all westes and mill tailings from the processing of source j material cre. This raises the specter of a different t conclusion if some of the material, like the TWCA material ? \\ { in this case, had not already boon processed for its source material content. Regardless of the Staff's reliance on the Kerr-McGee decision, however, we do not have to reacn the question of j-f whether or not its definition of ore will survive critical t legal analysis. ^ r l In reviewing this case, a less complicated process i under the Atomic Inergy Act can be utilized to support the issuance of a lic,ense to test (or even process) alternative hI feedstock contal ing source material. As the courts hava I ..i fa -
ev..> ~ Lu. ?.. o sg. g$ 45 o g said, "The Commission's licensing decisions are generally .9 entitled to the highe,st judicial deferen'ce because of the . s. 3 ?l. unusually broad authority that Congress delegated to the ' ;y: 1 3 agency under the Atomic Ennrgy ?.ct."u 5, The Atomic Energy Act of 1954 is ha.llmarked by the amount of discretion granted the Commission in working to achieve the statute's en,ds. The Act's regulatory scheme "is vircually uni;que in the degree to which broad responsibility is reposed in the administering agency, free of closo prescription in its charter as to how it shall proceed in achieving the statutory ' objective."(8") f i There are broad statutory objectives enumerated in the Atomic Energy Act and!they include references to processing ofsourcematerialorh,theregulationofatomicenergyand I facilities used in connection t..erewith in the national interest, and programs to institute these Congressional goals."' It does not appear necessary, therefore, for the Staff i to rely on a new definition of " ore" so that the tailings from tu' extraction of source material from alternative t feedstock can fit within the meaning of " byproduct 888 commonwealth of Massachusetts v. NRC, 924 T.2d 311 (D.C. Cir. 1991), citing Carstens v. NRC; 742 F.2d 1546, 1551 (D.C. Cir. 1984), cert. denied 471 U.S. 1136, 105 S. ...;[ Ct. 2675, 86 L. Ed. 2d 694 (1985). .j 5 883Public Service Comoany of Now Hamoshire v. NRC, 582 F.2d 77, S2 (1st Cir. 1978), quoting Siecal v. AEC, 400 F.2d 778, 783 (D.C. Cir. 1968), cert. denied 439 U.S. 1046, 99 S. Ct. 721, 58 L. Ed. 2d 705 (1978). 88842 U.S.C. 2012,'2013. Egg also 42 U.S.C. 2201(b), setting forth the Commission's general authority. PC. I;.',k ' 81 .a .;ll,;p : s s s.?.#*,; s w. ?eW 9 ' e N '
- 0***'h**
- s. o e
,,..i'...' r. ..q. fi.f,T .i k.: (~ \\ , 7, 7 l 4 a. 46 if,- material." The NRC can instead press on with its obligation {. to regulate source, material ore as it;has for nearly 40 c.
- ls' 5 years."5 As long as the Staff, on a case-by-case E1 !
? h[ t basis, has addressed Congress's aversion to dual regulation M i gl by denying the processing of RCRA regulated materials and ,?.- j l{C, has made a finding of reasonabic assurance that the material j. t !{: will not thr.caten the health and safety of the public, there fjt appears no reason not to regulate alternative feedstocks any .s. ) .(.; more than naturally occurring ores."6 G IV. CONCLUSIONS OF LAW l Although substantial questions have been raised herein in those provisions of the proposed guidance relating to the certification of waste, the certification of a primary y purpose and the definition of ore, no *bfundamental impediment has been found to negate the Staff's action. On the basis of the Staff findings that the material is not hazardous and the NRC's inherent authority to regulate the processing of i "5Moreover, " source material" is defined as " ores which contain by weight one-twentieth of one percent (0.05%) or more off (i) Uranium, (ii) thorium, or (iii) any j material has been found to contain at !1 east 0.05% uranium by W combination thereof." Egg 10 C.F.R. S'40.4. Since the TUCA i i weight, it would appear that it is already defined as "cre" I t. under this definition. Y "'As noted before, the AEA does not define ore. j(b However, this has not hampered NRC regulation of feedstock / ores used in the processing of source material. There ,Y:$. si. ',. appears to be no legal requirement for creating a nov , definition of ore for alternative feedstocks or a new g(f. category of ores just because they are~previously processed. i WI j {l L Ad. 1
~ sq...o.e....e e.. I m 3 :. p 3., 3 4, d ,. ~ 47 p }.[ source material under the Atomic Energy Act, the issuance of ).. s -.}- the license ameddment can be supported herein. f, It is the Presiding Officer's opinion that this i n, *>j .[' f controversywas.capableofbeingselttled,buteffortsofthe .; b W Wi parties to this end were unavailing.88' There is nothing revealed in the. record of this proceeding to indicate that e ( ?y the Licensee intends to dispose of,the material sitting at ,q .5 its White Mesa Mill as vaste material, that such material is hazardous or that the material does not contain uranium that i ,.l. } will be tested to see if it can be processed for economic recovery. I f Here, the Staff went beyond the guidance requirements, t conducted its own test of the materials and obtained from .l I Y-the Licensee comparisons of the concentrations of hazardous constituents in the source material'with the normal tailings ', i disposed at the site. It also required assessments of the impacts from the proposed activity to meet criterion 5 of t Appendix A to 10 c.F.R. Part 40 and the health and industrial hygiene hazards associated with the source r i material. These tests demonstrate that the proposed testing \\ M and impoundment will not threaten the public health and p;< {.. safety beyond what was already allowable at the sito under i y,p,,j NRC licensing practices. The testing of the existing s. h,! j c. <;. ?, td] I: 88' Staff Response to Questions from Presiding Officer E';4 at 7-8, m3 Y<b' h. n.p n
h;,1y.,,... k .J. c S. '. ' .j t;,, e se ,\\'
- ei ' '
3,W ' d ID a 48
- E'cn; material is permittqd and any additional processing requires e
2; [ subsequent NRC authority. '?, Y;l. a V. ORDER .1 .Y.ki. Tpk:: On the basis of the presentations,and evidence aw. 3 jh! submitted, and in consideration of the opinions and
- q..: '
conclusions set forth herein, it is ORDERED that, i 1. The issuance of Amendment No. po to UMETCO License j,, SUA-1358 is sustained. 1 2. Staff inspections, of UMETCO's testing procedures and operations authorized by the amendment, should be implemented. e
- t,.
]4.-,s } 3. In accordanco with 10 C.F.R. Sc2.1251, this Initial . c!' %,-y Decision will constitute the final action of the Commission ,j. within thirty (30) days after the date of issuance, unless rza $.4 any party petitions for Commission review in accordance with l '.,g 10 C.F.R. $ 2.786, or the Commission takes review gun sconte. Any other party to the proceeding may file within ty {.j ten (10) days af ter service of a petition for review, an answer supporting or oppost Commission review. w,Y /L k w v, ~7 a gg. ~ es P. Gleason, Presiding Officer J DMINISTRATIVE JUDGE Bethesda, Marylan t .? April 12, 1993 i ?;t i E" b.i s;e ','s, G is '!$* P'ta I
.. f,R Og -, e. w y. p'l' (i ' ?*;-l q.. d y ~ '? " ! .A UNITED STATES OF AMERI'CA 7:- NUCLEAR REGULATORY COMMI,,SSION i i i ' in / In the Matter of i r [w. UMETCO MINERALS CORFORATION Docket No.(s) 40-8681-MLA y (Source Materials License ./ No. SUA-1358) y 9y p CERTIFICATE OF SERVICE I hereby certify' that cop.fes of the foregoing Lk INITIAL DECISION (LEP-93-7 I have been served upon the following persons by U.S. mail, first class, excep)t as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712. Administbative Judge Office of Cosatssion Appellate James P. Gleason Adjudication Presiding Officer U.S. Nuclear Regulatory Comission Atomic Skfety and Licensing Board Washington, DC 20555 U.S. Nuc) ear Regulatory Comission Washington, DC 20555 Administrative Judge 1. Thomas D. Murphy Sherwin . Turk, Esq. I Special Assistant Colleen P. Woodhead, Esq. Atomic Safety and Licensing Board Office of the General Counsel U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission e Washington, DC 20555 Washington, DC 20555 k Henry W. Ipsen, Esti. R. A. Van Horn f Counsel, Umetco Minerals Corp. Otractor of Operations W: Holme, Roberts & Owen UNETC0 Minerals Corporation 1 J ', ' 1700 Lincoln, Suite 4100 P. O. Box 1029 h Denver, C0 80203 Crand Junction, C0 81502 Patrick J. Mor GeneralCounse$an. Esquire s Kenneth L. Alkema gi Umeteo Minerals Corporation Executive Director, Utah DEQ iNt 39 Old Ridgebury Road 4120 State Office Building E-2267 4th Floor, P. O. Box 140811 g Danbury, CT 06817 Salt Lake City, UT 84114 'eEi d k
...s... ~ ..q ~ m,; fi?:t *~ s.y.., DocketNo.(s)40-8681-MLA '(,',' LB INITIAL DECISION (LBP-93-7) c: 19,. 3 i.. vg. Denise Chancellor fe Assistant Attorney General 4120 State Office Building 4th Floor, P. O. Box 140811 Salt Lake City, UT 84114 Dated at Rockville, Md. this 12 day of April 1993 EU Office of the Secretary of the Commission I l m m-
LBP-99-5 l February 9,1999 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL Before Administrative Judges: Peter B. Bloch, Presiding Officer Richard F. Cole, Special Assistant In the matter of Docket No. 40-8681-MLA-4 INTERNATIONAL URANIUM (USA) Re: Material License Amendment CORPORATION (Receipt of Material from ASLBP No. 98-748-03-MLA Tonawanda, New York) INITIAL DECISION (Denying the Relief Requested by the State of Utah) The State ofUtah's Written Presentation pursuant to 10 C.F.R. Q 2.1233 is titled, "Brief in Opposition to International Uranium (USA) Corporation's Source Material License Amendment," December 7,1998 (Brief). This Brief and the responses to it' form the basis for the determination of whether the State's concerns should be sustained or dismissed. The license amendment Utah complains of, Amendment 6, allows the International Uranium (USA) Corporation (IUSA) to process as an alternate feedstock at its Mill certain l uranium-bearing material from the Ashland 2 site located in Tonawanda, New York. The 2The International Uranium (USA) Corporation's (IUSA) Reply was filed on January 19,1999 and the Staff of the U.S. Nuclear Regulatory Conunission's (Staff) Reply was filed on January 29,1999. i l
~ j - Ashlind 2 site is administered by the Army Corps of Engineers ("USACE") under the Department of Energy's (" DOE's") Formerly Utilized Sites Remedial Action Program l (FUSRAP).2 3 The State's principal argument is that the Amendment does not comply with Commis-i sion Guidance because the material is not byproduct material and must therefore be disposed of at an appropriate facility rather than being subject to " sham disposal." It maintains that "Ile.(2) byproduct material requires that the ore be ' processed "*** primarily for its source material content' and thus would not permit... sham disposals." [ Emphasis in original.] Brief at 4-5, citing Proposed Position and Guidance on the Use ofUranium Mill Feed Material Other Than Natural Ores [7 F'ed. Rcg. 20,525,20,533 (1 92) P posed Guidan I conclude that the State misconstrues the Atomic Energy Act, which defines as byproduct materials "the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content." Atomic Energy Act of 1954 as amended,42 U.S.C. { 2014e(2). The State interprets " processed primarily for" to require a test of motive or purpase. It argues that the International Uranium (IUC) Corporation (IUSA) is processing this material primarily for the fee it is being paid for receiving the material and it attempts to show that the 2 The FUSRAP program was established by the Atomic Energy Commission ("AEC") in 1974, to clean up and control radioactive contamination at sites associated with l activities that were previously carried out on behalf of the Manhattan Engineering District, it successes the AEC and other related entities during the early days of the nation's nuclear program. See generally U.S. Department of Energy, The Formerly UtilizedSites Remedial A ction Program (FUSRAP): Building Stakeholder Partnerships to Achieve Efective Cleanup, DOE /EM-0233 (April 1995). l ( l
,:~,
- o. -
j fee exceeds the amount of money that will be recovered by extracting uranium from the L material. While the State's argument has some superficial appeal, the phrase " processed primarily for its source material content" should be given its natural meaning. The adverb "primarily" modifies the verb, " processed." Therefore, ore is processed primarily for its source material content when the the extraction of source material is the principal reason forprocessing the ore. Under those circumstances, the material falls within the NRC'sjurisdiction over the uranium fuel cycle.3 Accordingly, when the extraction of uranium is the principal reason that ore is processed, it meets the test of this section and is byproduct material.' If, on the other hand, the material were processed primarily to remove some other substances (vanadium, titanium, coal, etc.) and the extraction ofuranium was incidental, then the processing would not fall within the statutory test and it would not be byproduct material within the meaning of the Atomic Energy Act. That is, the adverb, "primarily," applies to v hat is removed from the material by the process and not to the motivation for undertaking the process. I This reading is consistent with the Uranium Mill Tailings Radiation and Control Act of 1978, as amended (UMTRCA),42 U.S.C. 7901,2.(b)(2), which states that a purpose of that Act is 'See Chairman Hendrie's remarks or pag:: 3, below. - fThere are two reasons to remove uranium: the value of the material that is removed and the reduced expense of disposing of the material. Ordinarily, material processed at a nuclear fuel cycle facility would be considered to be processed primarily to remove uranium. L..
7 . to regulate mill tailings during uranium or thorium ore processing at active mill operations and after termination ofsuch operations in order to stabilize and control such tailings in a safe and environmentally sound manner and to minimize or eliminate radiation health hazards to the public. Moreover, the legislative history of the definition of byproduct material incorporated into Section Ile.(2) of the Atomic Energy Act shows that it was intended to focus on the nuclear l fuel cycle. NRC Chairman, Joseph M. Hendrie, testified: [T]he intent of the language is to keep NRC's regulatory authority primarily in the field of the nuclear fuel cycle. Not to extend this out into such things as phosphate mining and perhaps even limestone mining, which are operations that do disturb the radium-bearing crust of the Earth and produce some exposures, but those activities are { not connected with the nuclear fuel cycle.... j Uranium Mill Tailings Radiation Control Act of1978 Hearings at 343-44. This definition of byproduct material reaches a sound practical result in this case. The State of Utalidescribes the transaction in this case, on pp. 6-8 ofits brief, as follows: The Ashland 2 material is located on a U. S. Army Corps of Engineer's ("USACE" or " Corps") Formerly Utilized Site Remedial Action Program ("FUSRAP") site at Tonawanda, New York. ICF Kaiser is the Corps' prime contractor for the cleanup of the FUSRAP Tonawanda site. As discussed in Mr. Herbert's Testimony, the State obtained a copy of ICF Kaiser's request, price analysis, and summary of waste disposal alternatives submitted to the Corps in sopport of the award of a contract to IUSA "for material handling and disposal services" for the Ashland 2 material. See Exhibit 3 attached to Mr. Herbert's testimony.[5] According to ICF Kaiser's Price Analysis, ICF Kaiser conducted a market survey to " determine the fums who l regularly provide material handling and waste disposal services." All the firms 5The State has independently obtained a copy of the signed contract between IUSA and ICF Kaiser. IUSA has asserted to the State that this contract should be treated as confidential. As the, information in the contract is not inconsistent with the information that ICF Kaiser presented to the Corps, the State will forego, for now, introducing the IUSA-ICF Kaiser contract into evidence in this proceeding. However, IUSA has itself disclosed contract cost information to NRC in the Ashland 2 license amendment request. See attachment 3 thereto (USACE Value Eng' eering Proposal for Ashland 1 and Ashland 2). m p
r 1 o identified, with the exception ofIUSA, are permitted as waste disposal facilities (i.e., l Envirocare, Envirosafe, Laidlaw, and Waste Control Specialists). l Under the contract, ICF Kaiser will pay transponation costs to deliver the Ashland 2 material to the White Mesa mill. IUSA will collect a material handling and disposal fee of $90/ cubic yard of Ashland 2 material received at the mill. IUSA initially estimated that the Ashland 2 material would contain a maximum of 25,000 dry tons. However, IUSA has now informed the State that the amount of Ashland l 2 material it will receive will be as much as 45,000 cubic yards. Herben Testimony l at 6. Based on this latest estimate of the amount of material IUSA will receive, the l material handling and disposal fees total $4,050,000. Herbert Testimony at 9. Additionally, Mr. Herben used the current market price of yellowcake and various estimates of Ashland 2's uranium concentration to calculate possib'e value of uranium that could be processed from the Ashland 2 material. Without waste-specific density data, Mr. Herbert used the assumption that the density of the Ashland 2 material i ranges from 80 to 100 lbsicubic foot. Herbert Testimony at 6. The range of potential uranium values, based on weight percent of uranium-238 listed in Tonawanda FUSRAP documents, is as follows: l y_al_uc Density ITranium Content i $ 68,040 80 lbs/ cubic foot 0.008 percent $ 85,050 100 lbs/ cubic foot 0.008 percent $221,130 80 lbs/ cubic foot 0.026 percent $276,413 100 lbs/ cubic foot 0.026 percent $493,290 80 lbs/ cubic foot 0.058 percent $616,613 100 lbs/ cubic foot 0.058 percent Herbert Testimony at 8. Thus, the gross value from uranium extraction--which does not take into account the costs of extracting the material--ranges from $68,000 to a little more than $600,000 depending on the actual density of the material and its total uranium content. M. l-I conclude that the scenario presented by the State of Utah is a good practical argument l for permitting the milling of uranium contained in the Ashland 2 materials. First, IUSA produced the lowest bid for recycling these materials. Why? As the State of Utah has explained, IUSA would remove some uranium from the materials and would make at least a small profit on that activity. Second, from an environmental standpoint, it is preferable to t-
n 1 -), l extract uranium before burying waste materials that contained it. Third, even the State of Utah projects a net profit from the milling activity. Hence,it is reasonable to predict that the milling will actually occur. Since the milling will occur, it is not a " sham" as the State has argued. It is real.6 Here is the way that IUSA expressed this same point on page 55 ofits Reply: l IUSA will be recycling subs'tantial quantities of a valuable material. As already discussed, even based on the conservative numbers calculated by the State, IUSA is likely to recover between 8,000 to 70,000 pounds of uranium from its processing of the Ashland 2 material. In al' likelihood, ifIUSA were not processing the Ashland 2 - material this substantial santity of valuable uranium would be lost to disposal. Recovering and recycling such a substantial qmmtity of valuable uranium is an j important benefit, and provides an additional justification for IUSA's certification.7 l This was perceived to be a benefit by USACE, the agency administering remediation l of the Ashland 2 site, which is one of the reasons why IUSA was chosen by USACE and committed contractually to process the Ashland 2 materials for the recovery of uranium;8 'It seems to me that the only " sham" that stops material from being byproduct material is if it is not actually milled. If it is milled, then it is not a sham. 'Indeed, as EPA has noted, recycling can be legitimate and beneficial even if it is not profitable. Sce generally, 63 Fed. Reg. at 28,556.
- Thus, in its value engineering proposal for disposition of the Ashland 2 material, the USACE specifically listed among the advantages associated with IUSA's processing of the material:
ADVANTAGES
- 1. Conforms to Congressional and regulatory mandates which encourage use of recycling.
- 2. Reduces radioactivity of the material to be disposed of.
- 3. Recycles uranium and other minerals.
- 7. Actual cost savings for treatment and disposal versus cost of direct disposal can only be greater than projected in this proposal, depending upon the actual content of recoverable
r. j i l Second, by recovering uranium from the Ashland 2 material, IUSA's processing makes the material less radioactive, thereby reducing the hazards associated with its ultimate disposition and, in effect, making it safer for disposal. This was also perceived to be a benefit by the USACE and hence is another reason that IUSA was chosen to and l contractually committed to process the Ashland 2 materials for the recovery ofuranium; j Third, recycling the Ashland 2 material provides a benefit to the government, and therefore to the public at large, by allowing the FUSRAP program to reduce its inventories of unwanted materials and accomplish environment clean-up in a manner that is environmentally sound, that is cost efficient, and that allows for the recovery of a valuable product that would otherwise be disposed; t Fourth, the Ashland 2 materials are 11e.(2) byproduct materials that originated from l conventional ores and are therefore chemically, radiologically and physically similar l to the existing Mill tailings and should be expected to be able to be processed for the recovery of uranium at the Mill; and, i l Finally, IUSA has a history of successfully extracting uranium from alternate feed i materials and has developed credibility with the NRC, not only for being technically competent, but also for fulfilling its proposals to recover uranium from alternate feeds. The Altemate Feed Guidance is not supportive of the position, taken by the State of l Utah, that material is to be considered byproduct only if the primary economic motivation is i to remove uranium rather than to dispose of waste. For example, on page 4 ofits brief, the l State quotes the following out of context: the potential of converting material that would have to be disposed of as [ Low Level Radioactive Waste ("LLW")] or mixed waste into ore, for processing and j disposal as 11e.(2) byproduct material. The possibility of converting such wastes l to 11e.(2) byproduct material can be very attractive to owners of such material... l . An owner of such material could pay a mill operator substantially less to process it for its uranium content and dispose of the resulting 11e.(2) byproduct material l than to dispose of the material as waste at an appropriate facility. Proposed Position and Guidance on the Use of Uranium Mill Feed Material Other Than uranium or other minerals found in the waste stream. See USACE, Value Engineering Proposal. Proposal No. C-11, originally included with IUSA's license amendment application, by letter from Michelle R. Rehmann to Joseph J. Holonich (May 8,1998). [See IUSA Response at Exhibit 7.] o
l Natural Ores,57 Fed. Reg. 20,525,20,533 (1992) (" Alternate Feed Guidance"). l 1 find the interpretation of the State of Utah to be misleading because this same Altemate Feed Guidance, at pp. 20,532-3, makes it clear that if source material is extracted from a material at a licensed uranium mill, then the material is considered to be " ore," providing that it does no: contain hazardous waste' and that it is processed so that a useable product, uranium, is extracted from it. Accordingly, I conclude that IUSA meets the re-quirements of statute and guidance. It is not involved in a sham. It is milling ore and its l license was appropriately granted to it.' ORDER For all the foregoing reasons and upon consideration of the entire record in this matter, it is this 9th day of February,1999, ORDERED, that:
- 1. The relief requested by the State of Utah in its December 7,1998 "Brief in Opposition to International Uranium (USA) Corporation's Source Material License Amendment" is denied.
) 1 'The State of Utah has satisfied itself that the Ashland 2 material does not contain hazardous waste. Utah Brief at 3. The adequacy of the Staff's safety review is irrelevant. University ofMissouri, CL1-95-1,41 NRC at 121. 2 The State has failed to show any material respect in which the Staff's environmental review of this license amendment was deficient. The assertion that the State's regulations may be more stringent than the NRC's does not demonstrate the inadequacy of the environmental review. 1
h 1 j
- 2. This decision is reviewable under 10 C.F.R. 52.1253, pursuant to the procedures i
set forth in 10 C.F.R. i f 2.786 and 2.763. The petition for review must be filed within 15 days of the service of this decision.. l i l Peter B. Bloch, Administrative Judge Presiding Officer i Rockville, Maryland 1
r. 2 l a necoq 1 UNITED STATES i E NUCLEAR REGULATORY COMMISSION f WASHINGTON, D.C. 20555 4001 / 1 Janua ry 15, 1999 MEMORANDUM TO: Carl J. Paperiello, Director Office of Nuclear Material Safety and Safeguards ~ 1,. / FROM: C. William Reamer, Chairman At Differing Professional View Panel l
SUBJECT:
DIFFERING PROFESSIONAL VIEW 1 i In response to your November 30,1998, memorandum on this subject, I hereby forward l l to you the attached report of an ad hoc panel convened to review the Differing Professional l View on "Use of Mill Tailings impoundments for Disposal of Waste other than 11e.(2) Byproduct Material and Reviews of Applications to Process Material other than Natural Uranium Ores."
Attachment:
Ad Hoc Panel Report on DPV cc: M. Fliegel J. Greeves J. Holonich K. Stablein l I i l l l l l 0 I L
, e s REPORT OF AN AD HOC PANEL CONVENED TO REVIEW THE DIFFERING PROFESSIONAL VIEW ON "USE OF MILL TAILINGS IMPOUNDMENTS FOR DISPOSAL OF WASTE OTHER THAN 11e.(2) BYPRODUCT MATERIAL AND REVIEWS OF APPLICATIONS TO PROCESS MATERIAL i OTHER THAN NATURAL URANIUM ORES" 1 'e s ', s. # C.-William Reamer, Chairman f I -,a w Paul H. Lohaus,' Member l'r /Y-uw Dennis M. Sollenberger, Membfer Date: January 15,1999
a \\ REPORT OF AN AD HOC PANEL CONVENED TO REVIEW THE DIFFERING PROFESSIONAL VIEW ON 1 "USE OF MILL TAILINGS IMPOUNDMENTS FOR DISPOSAL OF WASTE OTHER THAN 11e.(2) BYPRODUCT MATERIAL AND REVIEWS OF APPLICATIONS TO PROCESS MATERIAL j OTHER THAN NATURAL URANIUM ORES"
- l. Introduction and Summary This is the report of an ad hoc panel, estabhshed under Nuclear Regulatory Commission (NRC)
Management Directive 10.159,' to review the Differing Professional View (DPV) entitled "Use of i Mill Tailings impoundments for the Disposal of Waste other than 11e.(2) Byproduct Material and Reviews of Applications to Process Material other than Natural Uranium Ores" (Appendix A). Under the Management Directive, the panel is to review the differing view in the DPV and the prevailing NRC staff view, and to make recommendations to NRC management. The prevailing staff view is embodied in an NRC staff draft Commission paper which would 2 j modify two NRC guidance documents issued in 1995.3 First, the draft Commission paper would modify NRC guidance on use of uranium mill tailings impoundments for disposal of "non-11e.(2) material," that is. material that is not byproduct material under Section 11e.(2) of the Atomic Energy Act. This modification addresses claims that existing NRC guidance is overly restrictive because its exclusion of material subject to dual regulation by another Federal or State regulatory agency essentially precludes disposal of non-11e.(2) materialin tailings impoundments. Second, the draft Commission paper proposes modification of NRC guidance on licensee requests to use uranium mills to process " alternate feed material," that is, material other than natural uranium ore, to recover source material. This second modification addresses claims that NRC exceeded its statutory authonty by including an economic analysis in existing NRC guidance to show that alternate feed is being processed primarily for the recovery of uranium and for no other primary purpose. The NRC guidance reflects a concern that the I l NRC Manual Directive 10.159. " Differing Professional Views or Opinions" (April 10, I 1997). See Appendix A. 2 The NRC staff draft Commission paper is entitled "Use of Uranium Mill Tailings impoundments for the Disposal of Waste other than 11e.(2) Byproduct Material and Reviews of Applications to Process Material other than Natural Uranium Ores." The panel reviewed various versions of the draft Commission paper. The panel provided copies of the drafts it reviewed to .the submitter of the DPV. The latest version is attached as Appendix C. 2 The'two guidance documents are " Final Revised Guidance on Disposal of Non-Atomic Energy Act of 1954, Section 11e.(2) Byproduct Material in Tailings impoundments" and " Final j Position and Guidance on the Use of Uranium Mill Feed Material other than Natural Ores" { (60 FR 49296). See Appendix C, Attachment (1). I
uranium mill not be used to process matter for the Durc0se of convertng its classification to l byproduct matenalf The DPV sets fonn a diffenng view on eacn gucance ~odMcaton crocosed 'n the draft Commission paper First the DPV contends that disocsal of non-11ea2) matena! involves o complex considerations of " dual regulationf not acequately discussed in the draft Commission paper. and resolvable only by enactment of new legislation. The DPV predicts that dual regulation will thwart any beneficial effects of modifiec NRC guidance. by creating regulatory uncertainties that prevent disposal of non-11e.(2) matenal. or by burdening the NRC staff with the role of resolving conflicting regulatory requirements to avoid impeding reclamation of l impoundments or termination of heenses. Second. the DPV asserts that the draft Commission paper is unclear on how it proposes to change the existing NRC guidance on alternate feed. This lack of clanty, according to the DPV. obscures how the modified guidance addresses the concern that matter not be brought into the uranium mill for the purpose of qualifying it for disposal in the tailings pile. This report contains the results of the panel's review of the DPV. Part ll summarizes the establishment of the panel, its activities and the information it reviewed. Part 111 contains a discussion of the issues raised by the DPV and the panel's conclusions on those issues. The panel's recommendations are set forth in Part IV. l
- 11. Backaround By memorandum dated November 30.1998. Carl J Paperiello, Director of the Office of Nuclear Material Safety and Safeguards. initiated establishment of the ad hoc review panel to review the DPV (Appendix A). The memorandum appointed William Reamer, Acting Chief. Engineering &
Geosciences Branch, Division of Waste Management and Paul Lohaus, Deputy Director, Office of State Programs, respectively, as chair and panel member. A third panel member, Dennis Sollenberger, Office of State Programs, was selected by the panel chairman on December 11, 1998, from a list of candidates proposed by the submitter of the DPV (Appendix B). The memorandum requested the panel to complete its review and provide recommendations to the Director.5 In accordance with the Director's memorandum, the panel reviewed the DPV as well as the NRC staff draft Commission paper on which the DPV is based. The draft Commission paper ' Natural ore or other matter processed in the mill primanly for its source material content becomes byproduct matenal suitable for disposalin the tailings impoundment. Ore or matter processed in the mill for some purpose other than primarily for its source material content is not byproduct material. 5 The DPV process is governed by Management Directive 10.159, " Differing Professional Views or Opinions." Once memoers are selected, the panel is to review the DPV within 7 calendar days to determine whether additional information is needed for the review. Once the panel receives the necessary information, it is to complete its review and make its recommendations within 30 calendar days. 2 l
s contains eight attachments which the panel also reviewed (Appendix C Attachments (1H8)] The panel also reviewed relevant excerpts from an inoustry White Paper (Appendix D)i The l panelinterviewed tne suomitter of tne DPV on Januar, 1999 at wnicn time tne suomitter provided additionalinformation in support of the DPV a pencu E) ' The panel also interviewed o the Acting Deputy Director. Division of Waste Management. At no time dunng its review did the panelidentify an immediate or significant health and safety concern requ:nng the immediate I attention of NRC management. ll1, Discussion A. Disposal of Non 11e.(2) Material The draft NRC staff Commission paper, the industry White Paper, and the DPV are in general agreement that mill tailings impoundments could reasonably be used for disposal of other material. Impoundments are used for disposal of 11e.(2) byproduct material. They could also be used for disposal of other. non-11e.(2) material that is physically, chemically and radiologically similar to 11e.(2) material, without adverse environmental or human health and safety impacts.8
- Recommendations for a Coordinated Approach to Regulating the Uranium Recovery Industry: A White Paper Presented by the National Mining Association. See Appendix D.
7 The interview addressed whether the panel correctly understood the DPV concerns, whether any of the concerns had been eliminated or new DPV concerns raised by the redrafting of the Commission paper, panel questions on the DPV, and any additionalinformation the panel 1 needed or the submitter desired to provide in support of the DPV. The material provided to the panel during the interview is entitled ' Notes for DPV Meeting, Non-11e.2 and Alternate Feed Commission Paper." See Appendix E. 8 The industry White Paper (pp.133-35) (Appendix D) offers several examples of waste streams that involve non-11e.(2) material physically, chemically and radiologically similar to 11e.(2) byproduct material and that might, therefore, be disposed of in mill tailings impounaments. They include: Secondary process wastes from side-stream recovery of uranium not regarded as 11e.(2) material because they result from ores not processed primarily for their source matenal. Sludges or residues from treatment of mine water containing source material. Naturally occurring radioactive material (NORM), such as contaminated resins from Class IX well-water purification or construction scrap. Other high-volume, low-level radioactive waste that is physically, chemically and radiologically similar to mill tailings (e.g., contaminated soils and rubble). 3 i
ll' Significantly, however. the non-11e.(2) matenal migh: ne subject to regulat:on by EPA or tne States under tne Resource Conservation and Recovery Act t. RCRA). the Comprehensive I Env,ronmental Response. Comoensation and L.abihty A:t.CERCLAL the Toxic Substance Controi Act (TSCA) or otner Federal or State regulatory statutes Matenal subject to regulation by EPA or States under statutes otner than tne Atomic Energy Act is not authonzed for disposal in mill tailings impoundments under the existing NRC Final Guidance (referred to hereafter as the ~ Final Guidance")) The exclusion of such material is not based on health and safety considerations? Rather, the Final Guidance reflects a concern that disposal of the material l could subject the entire mill taihngs impoundment to potentially duplicative or conflicting regulatory requirements." l l l Nonetheless, the draft Commission paper. industry White Paper and the DPV generally agree l that disposal of non-11e.(2) matenal in tailings impoundments should be permitted." Disagreement arises, however. over what legal or policy changes are needed to address the potential for dual regulation of the impoundment. l l ' Final Guidance on Disposal of Non-Atomic Energy Act of 1954, Section 11e.(2) l Byproduct Materialin Tailings impoundments. Criteria 2,4 and 5. See Appendix C, Attachment (2). l l
- The draft Commission paper (p. 3) indicates that "[t]he primary purpose of the prohibitions in the current staff guidance is to reduce the potential for the regulation of the tailings imooundments by more than one regulatory agency." See Appendix C.
l " For example, if non-11e.(2) matenal contains RCRA hazardous waste, the entire impoundment could be subject to EPA regulation under RCRA. Similarly, a jurisdictional overlap i might occur if the non-11e.(2) material contains NORM subject to State regulation. Disposal of l non-11e.(2) material in the impoundment could impede license termination and transfer of l custody to DOE which is not under any UMTRCA duty to accept such custody. (DOE has the l authonty -- but not the duty -- to accept custody of a low-level waste (LLW) disposal site under l section 151(b) of the Nuclear Waste Policy Act.) It might lead to a licensee having to make l changes to an NRC-approved final tailings stabilization and remediation plan to meet State requirements that differed from NRC requirements in 10 CFR Part 40. In addition, the draft Commission paper indicates that dual State regulation might create problems for DOE (or the State agency) tasked with the long-term surveillance and care of the stabilized and remediated tailings impoundment on license termination. The draft Commission paper (p. 3), however, does not identify the type of problems that might arise. " The Commission's Staff Requirements Memorandum (SRM) on DSI-9, " Decommissioning -- Non-Reactor Facilities," supports development of regulatory frameworks for lower cost decommissioning waste disposal (Option 7). See Appendix C, Attachment (2). By permitting use of mill tailings impoundments for disposal of other materials that are similar to 11e.(2) byproduct material and produced by decommissioning activities, DSI-9 would arguably be furthered. 4 l
v The Final Guidance imphcitly considers dual regulat:on a problem tnat should be avoided even if it means foregoing the potential benefits of using imooundments for disposal of other matenal As noted, the Final Guidance would not perm >t the staff to approve a disposal that subjects the impoundment to dual regulation even if DOE the hke y long term custodian of the impoundment agrees to accept dual regulat!on The ndustry White Paper considers the Final i Guidance to be overly restrictive because its exclusion of matenal subject to dual regulation essentially precludes use of impoundments for disposal of non-11eJ2) material '3 The draft Commission paper, on the other hand. in recommending revisions to the Final Guidance, would permit disposal of material subject to dual regulation. provided all other participants agree. This arguably 180-degree change of position, on paper, would permit use of tailings impoundments for disposal of other material. However, the DPV points out that it is unclear whether the revised guidance will. in fact, work. In particular, the DPV argues that: DOE might decide to continue to preclude disposal of material that could result in + dual regulation of the impoundment, thereby continuing the status auo and eliminating any benefit from NRC's permitting the disposal. The NRC staff should engage in prior consultation with DOE before proposing the revised guidance. (The DPV contends the revise guidance burdens DOE with the need to prepare its own guidance and conduct its own review for each specific apphcation to dispase of other material and determine whether to accept it.) Licensees would be faced with the adod burden of obtaining a separate l + approval of any disposal of other material from DOE (and possibly others). The DPV also questions the draft Commission paper's apparent premise that dual regulation is acceptable if all other participants agree. Specifically, even if DOE were to agree to accept the site, the DPV asserts that NRC should remain concerned with allowing non-11e.(2) materials into the pile because: New burdens on the NRC staff will result from the separate, dual regulation of the tailings pile by EPA or the State (e.g., the burdens of additionalinteractions with the State on issues related to the disposal and of determining necessary additions to the long-term care fund) l l '3 The draft Commission paper (p. 8) indicates no applications for disposal of non-11e.(2) material have ever been received from licensees under the Final Guidance. Criterion 4 of the staff's revised guidance { Appendix C, Attachment (7)] provides that disposal of other material would be approved by NRC if the long-term custodian (most likely, DOE) agrees to accept the impoundment with the other material in it. Further, disposal in the impoundment may rcquire approval of EPA or the State exercising regulatory authority under 'other statutes. 5
v Adequate consideration nas not been given to addressing potential conflicts between NRC disposal requirements for 11e.(2) disposals and EPA or State disposal requirements (both existing anc future regulations) for disposals of other matenals (e g.. the DPV notes a State r"ight try to circumvent an NRC decision oy revising State requirements) A criterion should be retained for obtaining LLW compact commission approvals because they are either legally required or are otherwise appropriate. According to the DPV the only viable approach to allow disposal of non-11e.(2) materialis enactment of new legislation. eliminating the need for approvals by DOE. EPA. the compacts or the States and also eliminating dual regulation. The DPV thus adheres to the implicit consideration underlying the Final Guidance, that avoidance of dual regulation outweighs the potential benefits of using impoundments for disposal of other material. The industry White Paper, while enticizing the Final Guidance as too restrictive, suppms and encourages NRC efforts to address dual regulation through possible legislation and State / interagency agreements [i.e., Memorandums of Understanding (MOUs)] with co-regulators. The White Paper, in encouraging cooperative efforts to make progress, asserts that concerns about inconsistent requirements from dual regulation under CERCLA and RCRA should be resolvable because 11e.(2) disposal sites are already regulated under 10 CFR Part 40, Appendix A, which incorporates RCRA standards for non-radiological hazards. The industry White Paper suggests the following considerations: NRC should be able to enter into MOUs with EPA, DOE, and States to resolve duplicative junsdictional concerns that result f7 'iisposing of mixed wastes in tailings impoundments. DOE has the authonty (but not the duty), under section 151(b) of the Nuclear Waste Policy Act (NWPA), to accept custody of non-11e.(2) material under conditions comparable to those that would be met for tailings disposal sites transferred to DOE. NRC should consider MOUs with State agencies to satisfy dual regulation concerns for disposal of NORM. NRC can issue a generic exemption under Part 61 in lieu of the current case-by-case consideration. B. Panel Conclusions on Disposal of Non-11e.(2) Material With respect to the DPV concern that revisions of the Final Guidance should not be considered before consultation with DOE, the panel believes both the DPV and the draft Commission paper have merit. { .The DPV is correct that DOE needs to be consulted, inasmuch as DOE will need {. to agree to accept material that could result in dual regulation, in order for the 6
a l revised NRC guidance to have its intended beneficial result with respect to use of mill tailings impoundments for non-11e (2) matenal l The draft Commission paper acknow:e ges DOE s potent.al concern about perpetual dual regulation by EPA (or a State) and NRC. and it indicates staff will consult with DOE before proposing to modify and publish revised guidance for comment; ths should give DOE the opportunity to be informed of possible guidance revisions and NRC the opportunity to consider DOE comments in guidance revisions. In light of the Commission's interest (as reflected in DSI-9) and the fact that industry has raised related concerns directly with the Commission, the staff reasonably concluded it should consult with the Commission, first, on its planned approach, before consulting with DOE. The DPV is correct that DOE's disagreement would prevent NRC approval of a licensee's request to dispose of non-11e.(2) material and could thereby lead to continuation of the status auo on use of mill tailings impoundments, notwithstandina publication of revised guidance, thus depriving the staff's revised guidance of much ofits intended effect. Therefore, the panel believes that, at the conclusion of consultations with DOE, the NRC staff should inform the Commission of DOE's position on the staff revisions to the guidance and, in particular. DOE's willingness to accept a site that could be subject to dual regulation. With respect to the DPV concern that revisions of the Final Guidance could inappropriately burden DOE and licensees if DOE, after reconsidering the issue, decides to preclude disposal of material that could result in dual regulation, the panel does not want to prejudge the outcome of NRC's consultation with DOE. The panel agrees that the revised guidance -- by increasing the number of requests to put non-11e.(2) material into the impoundment -- would increase the level of effort required of licensees and other government agencies, respectively, to prepare and approve such requests. The panel notes that if DOE indicates it will not accept sites subject to dual regulation, and if the NRC thereafter proceeds to issue the revised guidance, DOE (and licensees) could be burdened by DOE's need to do a case-by-case evaluation of requests to dispose of non-11e.(2) material. In part because the draft Commission paper lacks a strategy for addressing dual + regulation or mitigating its effects, the panel is uncertain whether the paper's recommended approach can achieve the desired results --i.e., successfully ( 7 +
address use of mill tailings impoundments for disposal of other material However. the draft Commission paper appears to recognize this uncertainty. - By croposing to puDlish guicance revisions for Comment the draft CommlSSlon paper offers a reascnaDie crocess for leaming and subsecuently addressing whether the revisions could inappropnately burden licensees by. for example. insisting they obtain a separate DOE approval before disposal of non-11e.(2) material. With respect to the DPV concern that revisions to the Final Guidance will create new and unacceptable burdens for the NRC staff (i e., the burdens of dual regulation including additional interactions with the State on issues related to the disposal and of determining necessary additions to the long-term care fund). the panel disagrees. The DPV does not give an adequate basis to conclude that any new burdens on the staff are unacceptable, The draft Commission paper acknowledges that additional NRC staff burden may result. (The panel notes the draft Commission paper does not provide detail or estimate the magnitude of the burden.) The draft Commission paper describes a "model" experience in which DOE and the licensee. with little NRC involvement, worked to resolve issues related to disposal of 11e.(2) material contaminated with PCBs regulated under TSCA. The panel is uncertain whether this experience is a valid model for disposal of non-l 3 In discussing Option 2 to modify NRC guidance to allow disposal, the draft Commission paper (p. 5) includes the following statement: As a result, the potential for non-11e.(2) byproduct material to be disposed of in mill tailings impoundments could be increased deoendina on the willingness of licensee and the long-term custodian to accept dual or multiple regulation. (Emphasis added). The DPV (Appendix E) faults the staffs discussion of Option 2 (i.e. the preferred option) for failing to explain the possible ramifications and giving superficial discussion to complex issues. The panel believes the draft Commission paper and its attachments, extensively documenting the prolonged history of this issue, contain the necessary explanation and discussion. 8
.o 11e (2) material? Nonetheless. staff's oroposal to consult with DOE and puchsh revised guidance for comment snould nelp to air this issue. With regard to the DPV concern that tne oraft Comm:ssion pa;er Goes not adeauately consider how to address potential conflicts between NRC disoosal requirements for 11e (2) disposals anc EPA or State disposal requirements (both existing and future regulations) for disposals of non-11e.(2) matenals. the panel agrees. The draft Commission paper (p. 4) does not analyze the potential for conflicts between NRC disposal requirements and the disposal requirements of EPA or the State. Rather. It leaves to DOE and the licensee the task of working out "the particulars.. with any other regulatory agency involved," while noting that regulation by other Federal and/or State regulatory agencies could " decrease the viability of this approach [i.e., the recommended revision to guidance]." Given the draft Commission paper's recognition that revised guidance could be adversely impacted by dual regulation, the basis for the paper's recommended approach could be improved if the sta'f articulated its strategy for dealing with the contingencies presented by dual regulation (e.g., how to mitigate conflicting disposal requirements) when it publishes revised guidance for comment. A strategy for mitigating the impacts of dual regulation could also serve as a partial response to potential concerns, alluded to in the draft Commission paper, that disposal of non-11e.(2) material is inconsistent with UMTRCA." Cooperative efforts, involving NRC, EPA, and State regulatory agencies, could be l addressed when the staff articulates its strategy for dealing with the contingencies presented by dual regulation. The industry White Paper supports and encourages NRC cooperative efforts to address dual regulation such as State / interagency agreements (i.e. MOUs) with co-regulators. The draft l l i DOE might view TSCA disposal requirements as less stringent than, and, therefort, different from, RCRA regulations for hazardous waste disposal. In addition, the approach used for disposal of the TSCA waste --i.e., placement of the TSCA waste in a separcts cell, according to the draft Commission paper-- may not s' ways work for disposal of non-11e.(2) material in mill tailings impoundments. Further, disposal of the TSCA waste, which was apparently generated onsite and for which alternative disposal capacity may not have been available, is factually different from disposing of non-11e.(2) material generated offsite. " The draft Commissien paper (p. 4) includes the following statement: "The staff would emphasize, however, that this approach [i.e., the recommended approach] would reintroduce the like'ihood of multiple regulation by EPA, the States, and NRC, which the current approach and the underlying design of [UMTRCA] sought to avoid." 9
1 Commission paper however. does not specify or evaluate coopenstive efforts although it is focused on acdressmg :ncustry concems i A strategy for dealing witn dual regulat on coula also irdude possible legal arguments if such arguments are viab.e. on preemption of State regulatory requirements that conflict with or stana as an oostacle to fulfillment of UMTRCA The strategy could clanfy staff's intention with respect to issuing a generic exemption from Part 61 in a future rulemaking."- With respect to the DPV concern th6l a cntenon should be retained for obtaining LLW compact commission approvals because they are legally required or otherwise appropnate, the panel believes that both the DPV and the draft Commission paper have ment. To the extent compact consent is a legal requirement, the DPV is correct in that the Commission does not have the authonty to permit licensees to dispose of material without the licensee obtaining such consent. The draft Commission paper adequately describes the background of this enterion and the related policy considerations; further. the NRC can reasonably expect that licensees will obtain any legally required consent, and NRC is not obligated to enforce compact requirements. To the extent compact approvalis legally required, staff should acknowledge that it cannot and does not purport to changt such a legal requirement. With regard to the DPV concern that legislation -- specifically, legislation eliminating dual regulation --is the only viable approach to allow use of mill tailings impoundments for disposal of non-11e.(2) material, the panel disagrees. Cooperative efforts such as State / interagency agreements (i.e., MOUs) have not been explored, and the DPV does not provide a basis to conclude they would necessanly fail; morew until they are evaluated, cooperative efforts may be argued to be an alternative that should be pursued before legislation. I On the other hand, legislation is a possible way to address dual regulation and could be consid'.: red, at the appropriate time, as an element of the staff's strategy for dealing with dual regulation. Although not spec.fically addressed in the draft " The draft Commission paper generally indicates staff will need to expend resources in dealings with other Federal and/or State regulatory agencies, but does not specify the anticipated staff activities " Based on the panel's interview with the Acting Deputy Director, the panel understands the staff intends to replace the case-by-case exemption process under the Final Guidance (i.e., Criterion 10) with a generic exemption by rule. 10
F l ~ t Commission paper the sta'f already submitted a draft !eg:stative package j proposing that matenal 0:stosed of in a mill tailings impounament shall be excluded from regulation uncer tne Sa d Waste Disposal Act The s9ff also drafteo 3Linorization committee testany reco r encing legislation. C. Alternate Feed A heensed uranium mill can be used to process not only natural or native ore but also "any other matter from which source matenalis extracted." and the wastes from processing can be disposed of in the tailings impoundment provided the ore or other matter is " processed pnmanly { for its source matenal content? Tne Atomic Energy Act defines " byproduct material" to include i tailings or wastes produced by the extraction or concentration of uranium (or thorium) "from any ore processed pnmanly for its source material content.* The term " ore"is interpreted by the Commission to include: natural or native matter that may be mined and treated for extraction. , or any other matter from which source matenal is extracted in a licensed uranium or thorium mill.21 A determination is made as to whether the natural ore or other matter is " processed primarily for its source material content" under the existing NRC Final Position and Guidance [ Appendix C. Attachment (1)] (referred to hereafter as the " Final Position"). The Final Position. in addressing the determination for a mill's processing of matter, otherwise classified as low-level radioactive waste or mixed radioactive waste, establishes two alternative tests for whether the matter is being processed pnmanly for its source material content." First. it can be concluded that the matter (including matter otherwise classified as " waste") is being processed primanly for source materialif the matter would be approved for disposalin the tailings impoundment without processing in the mill. The Final Position refers to this as the "co-disposal test." Second. it can be concluded that the matter (including matter otherwise classified as " waste")is being processed pnmanly for its source materialif the licensee so certifies and justifies its certification with reasonable documentation. " based on financial considerations, the high uranium content of the feed matenal, or on other grounds." See Appendix C, Attachment (1). l l The draft Commission paper proposes to revise the second test in the Final Position to eliminate l any discussion of economics and develop another method to assess whether materialis being i processed primarily for its source matenal content. However, the uranium milllicensee would still need pstification to demonstrate it was processing other matter primarily for its source material content in order to ensure that wastes from processing can be classified as "11e.(2) l byproduct material." The draft Commission paper also permits a licensee to process material l 2 Atomic Energy Act of 1954, as amended, @ 11e.(2). 2' F nal Position and Guidance on the Use of Uranium Mill Feed Material other than Natural Ores. See Appendix C, Attachment (1). I1
s without obtaining pnor NRC approval provided the kensee retains documentation for NRC inspection. \\ The DPV. addressing an earher versien cf me draft C:mmission caper. contenas tne oaper is attempting to remove tne requirement tnat a hcensee ustify tnat matenal proposed for z processing is to be processed pnmarily for its source matenal. Tne DPV also contends that. because the revised guidance would remove the justification requirement. the Commission wlil be put in the unacceptable position of, in effect, sanctioning sham processing (i.e.. the processing of material for the purpose of changing its classification to allow disposalin the tailings impoundment rather than for the purpose of recovenng source material). The DPV furthar contends that concern over licensee justification that alternate feed will be processed primanly for its source matenal should be resolved by Mislation. Specifically, if legislation were enacted to allow the disposal of non-11e.(2) matenal in tailings impoundments, as the DPV recommends, then the licensee's decision to process the material to recover uranium would itself be sufficient justification under the "co-disposal test." If material can be disposed of directly in the impoundment, the licensee's determination to process it for uranium is clear evidence, in and of itself, that the licensee is processing the material primarily for its source material content. During the panel's interview, the DPV submitter said the draft Commission paper had been revised subsequent to the DPV and asserted that the draft Commission paper, as revised, was unclear in its proposed revision of the Final Position. While the draft Coramission paper proposes to provide other means to show a licensee is processing matter primarily for source material, it also implies use of the same entena as in the Final Position but would allow performance-based beensing, The industry White Paper urges the Cominission to reject the premise it needs to prevent uranium mill licensees from processing material through their mihs to recover source material when recovery of the source material content would not be economically viable.22 Rather, the Commission should adopt a presumption that if licensees are processing other matter to extract source material, then the matenal is being processed pnmarily for its source material content. Alternatively, the White Paper recommends the NRC refocus the "co-disposal test" on health, safety, and environmental considerations and eliminate the " licensee certification and justification test," which is unnecessanly restnctive.22 22 White Paper at 152 (Appendix D). 22 White Paper at 157 (Appendix D). The White Paper argues the Commission has gone beyond the statutory requirement that material must be " processed primarily for its source material content" by the additional words "and for no other primary purpose" in the Final Position. 12 l
y. b, Panel's Conclusions on Alternate Feed With respect to the DPV concem that the araft Com~. ssion paper woulo remove tne requirement that a licensee justify tnat matenal!s to re crocessea onmanly fcr its source l ' matenal content. the panel disagrees The panel's reading is that a licensee must develop a justification that material is being processed pnmarily for its source material content in order to ensure that j the residuals from processing can be classified as 11e.(2) byproduct material." The staff needs to clarify the draft Commission paper if the panel's reading is l incorrect. l However, thF canel agrees the staff's proposed guidance revision could be more I clear and beNves the staff should clanfy, when publishing revised guidance for comment, that no substantive change is intended and licensees must still justify, with reasonable documentation, that other matter is being processed primarily for its source material, and that e justification may be based on any reasonable grounds, including financial considerations. Further. the staff should clanfy that licensees will be issued a performance-based license amendment authonzing use of alternate feed material that the licensee l_ determines to process primarily for its source material, so that the justification requirement is enforceable.2' l With resoect to the DPV concern that the revised guidance would remove the justification requirement and thereby put the Commission in the position of sanctioning sham processing, i the panel disagrees. l As noted, the panel's reading is that a justification muct be developed by the licensee; the panel therefore, disagrees with the DPV's premise. t With respect to the DPV correm that legislation should be used to resolve the issue of licensee justification for processing alternate feed pnmarily for its source material, the panel agrees that legislation is one possible approach but disagrees that it is the only approach. The staff agrees that legislation is a potential solution, as reflected in its draft legislative package and draft authorization comiTiittee testimony. While legislation would resolve the issue, and is, therefore, a sufficient approach, it is not necessary. 2' Based on its interview with the Acting Deputy Director, the panel unclerstands the staff intends that licensees obtain a performance-based license amendment to er)sure that the revised guidance includes an adequate basis for enforcement. 13 )
~ o i As noted earlier. cooperative efforts such as State / interagency agreements (i e.. MOUs) have not been explored and. until tney are evaluated, they may be argued to be an alternative tnat snoula ce pursued oefore legislation I ) IV. Recommendations A. Disposal of Non-11e.(2) Material l Based on its review of the DPV the draft Commission paper and other relevant information, the panel recommends that the NRC staff: (1) indicate it will inform the Commission, at the end of NRC/ DOE consultations. of DOE's position on staffs proposed guidance revisions and, iri particular, DOE's willingness to accept a site that could be subject to dual regulation; (2) articulate its strategy for dealing with the contingencies presented by ww.i regulation (e.g., how to mitigate conflicting disposal requirements) when it publishes revised guidance for comment; (3) address cooperative efforts, involving NRC. EPA, and State regulatory agencies. l when it articulates its strategy for dealing with the contingencies presented by l dual regulation: l (4) clanfy in the strategy the extent to which the conditions for DOE's acceptance of a site under section 151(b) of the NWPA parallel the conditions for license termination and transfer of custody to DOE under UMTRCA; (5':# consider including in its strategy for dealing with dual regulation possible legal l l arguments on preemption of State regulatory requirements that conflict with or stand as an obstacle to fulfillment of UMTRCA; (6) address legislation as an element of the strategy for dealing with dual regulation: l (7) clanfy, in any revised guidance which removes the compact consent criterion, that, to the extent compact approval may be legally required, the NRC cannot and does not purport to change such a legal requirement; and l (8) clarify that NRC intends to issue a generic exemption from the licensing requirements in 10 CFR Part 61 for any disposal of non-11e.(2) material in a mill tailings impoundment. B. Alternate Feed Based on its review of the DPV, the draft Commission paper, and other relevant information, the panel recommends that the staff: 14
I (1) clanfy. when publishing revised guidance for comment. that no substantive ) change is intended and licensees must still justify. with reasonable documentation, that other matter is be:ng processed pnmanly for its source matenal and that the justification may be basea on any reasonable grounds, including financial considerations. (2) include in the clarification that licensees will be issued performance-based license amendments authorizing use of alternative feed material which the licensee determines to process primarily for source material; and (3) note that if revised guidance is arproved, permitting disposal of non-11e.(2) materialin mill tailings impoundments, material that could be disposed of directly in the impoundment could be processed to recover source material, as alternate feed, under the *co-disposal test." L i 15 j 1 .I.
w 1-APPENDICES A. Memorandum to Wilham C Rearner. Acting Chief from Carl J Papenello. Director. Subj Diffenng Professional View Panei Dated November 30.1998: wiAttachments. (1) DPV { (2) DPV Manual Directive and Handbook 10.159 B. Documents pertaining to establishment of panel j l C. NRC staff Draft Commission Paper: Subj: Use of Uranium Mill Tailings l Impoundments for the Disposal of Waste other than 11e.(2) Byproduct Material and Reviews of Applications to Process Material other than Natural Uranium Ores; w/ Attachments: (1) Final Revised Guidance on Disposal of Non-Atomic Energy Act of 1954, { Section 11e.(2) Byproduct Material in Tailings impoundments and Final Position I and Guidance on the Use of Uranium Mill Feed Material other than Natural Ore; dated September 13.1995 (60 FR 49296). (2) Staff Requirements Memorandum. dated March 31,1997; subj: Staff Requirements - COMSECY-96-058 - Decommissioning - Non Reactor Facilities, (DSI 9). (3) SECY-91-243: Subj Disposal of Material other than Atomic Energy Act of l 1954, as Amended. Section 11e (2) Byproduct Material into Uranium Mill Tailings Impoundments; dated August 7,1991. (4) SECY-95-211: Subj: Final' Revised Guidance on Disposal of Non-Atomic l Energy Act of 1954. Section 11e.(2) Byproauct Materialin Tailings impoundments." and Final ~ Position and Guidance on the Use of Uranium Mill Fee Materials other than Natural Ores." (5) Differing Professional View; dated November 19,1998 (omitted). (6) Staff Requirements Memorandum: Subj: SECY-91-243 - Disposal of Material other than Atomic Energy Act of 1954, as Amended, Section 11e.(2) Byproduct Material into Uranium Mill Tailings impoundments. (7) Draft Revised ' Guidance on Disposal of Atomic Energy Act Non-Section 11e.(2) Byproduct Materialin Tailings impoundments"if Staff Recommendations are Approved. (8) UMETCO Minerals Corporation (Source Materials License No. SUA-1358), Docket No. 40-08681-MLA. Initial Decision. ASLBP No. 92-666-01-MLA (April 12,1993). D. Excerpts from " Recommendations for a Coordinated Approach to Regulating the Uranium Recovery Industry: A White Paper Presented by the National Mining Association;" PDR date: Apnl 22,1998. l E. Documents pertaining to January 7,1999, interview with DPV Submitter. I}}