ML20209F480
| ML20209F480 | |
| Person / Time | |
|---|---|
| Issue date: | 11/25/1998 |
| From: | Paperiello C NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| To: | Surmeier J, Treby S NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS), NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| Shared Package | |
| ML20209F412 | List: |
| References | |
| NUDOCS 9907160030 | |
| Download: ML20209F480 (27) | |
Text
, a por O 4 UNITED STATES j j NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555 0001 f'a November 25, 1998
%,**.**/ .
MEMORANDUM TO: John J. Surmeier, Deputy Director Program Management, Policy Development and Analysis Staff, NMSS .
Stuart A. Treby, Assistant General Counsel for Rulemaking and Fuel Cycle, OGC FROM: arl J. Paperiello, Director (y
, Office of Nuclear Material Safet d and Safeguards
SUBJECT:
DIFFERING PROFESSIONAL VIEW PANEL This memoran,dum confirms my earlier designation of John Surrreier as the Chair of the ad-hoc panel and Stuart Treby as a panel member for the atte.ched D,lfering Professional View (DPV),
Pursuant to DPV Management Directive and Handbook 10.159, a third member of the panel was selected by Mr. Surmeier from a list of individuals provided by the employee who submitted l
the DPV. The third panel member is Duane Schmidt, Division of Waste Management, NMSS.
As a result of extenuating circumstances on both the part of the submitting employee and the l Chairperson, the review and recommendations could not be completed within 30 days after establishing a full panel. Your report will be due to me by December 22,1998.
l cc: W. Ford J. Greeves J. Holonich D. Schmidt M. Weber y \0 9907160030 990712 I PDR ORG NOMA
' PDR ,
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i 4 Differing Professional View Panel Report Concerning Handling of l Liquid Effluent Releases from /n Situ Leach' Operations at Licensed Uranium Recovery Facilities S
ATTACHMENT D 1
INFORMATION CONSIDERED IN DPV PANEL REVIEW WITH PERTINENT NOTATIONS t
r 1 y
1 Differing Professional View Panel Report l Concerning Handling of Liquid Effluent Releases from In Situ Leach Operations at Licensed Uranium Recovery Facilities i
i ATTACHMENT D INFORMATION CONSIDERED IN DPV PANEL REVIEW WITH PERTINENT NOTATIONS
INFORMATION CONSIDERED IN DPV PANEL REVIEW WITH PERTINENT NOTATIONS l e 1978. Title ll of Uran!um Mill Tailings Padiation Control Act of 1978 (UMTRCA) established a program to regulate mill tailings during uranium or thorium ore processing and after termination of such 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.
e 1980. ,
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- 1. On April 28,1980, at the request of then Chairman Ahearne, the Executive Legal l Director (ELD) submitted a comprehensive legal analysis on NRC's legal authority to j impose license conditions to protect groundwater from contaminants which result from j licensed operations connected with in-situ extraction of source material. The conclusion of the OELD Legal Opinion states, in part, that "the Commission has the responsibility and authority to assure that byproduct material, as defined in section 11e.(2) (i.e., tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content), is managed sc as to protect the pubic health and safety and the environment from radiological and nonradiological hazards associated with the processing and with the possession ano transfer of such inaterial. Potential contaminants of groundwater resulting from in site operations are clearly within the I scope of NRC's regulatory control under the Atomie Energy Act, as amended, by the l UMTRCA."'
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- 2. Furthermore, the ELD in his April 28,1980, transmittalletter to Chairman Aheame, NRC still "has the legal authority to impose groundwater protection conditions upon in-situ extraction licensees under the licensing and regulatory authority found in the Atomic l Energy Act of 1954, as amended by the Uranium Mill Tailings Radiation Control Act of 1978. . . . even though the definition of uranium mill tailings in our regulations (10 ;-
CFR 40.4 (a-1)) excludes underground ore bodies depleted by solution extraction" 2
' Memorandum from Howard K. Shapar, Executive Legal Director, NRC, to Chairman Aheame, NRC re: OELD Legal Opinion on Two Questions Relating to Operation of the Uranium Mill Tailings P.adiation Control Act of 1978, Attachment A,"NRC's Authority to impose Conditions to Protect Groundwater in its Licensees for the in Situ Extraction of Source Material in Non-Agreement States," dated April 28,1980. p.18. (See Attachment E-1) 8 Memorandum from Howard K. Shapar, Executive Legal Director. NRC, to Chairman Ahearne,"OELD Legal Opinion on Two Questions Relating to Operation of the Uranium Mill Tailings Radiation Control Act of 1978," dated April 28,1980. pc1. (See Attachment E-2)
DPVR ATTACHMENT D 1
e 1985. Since at least 1985, when the Agency revised Criterion 5, Appendix A,10 CFR Part 40 to comport with EPA's groundwater standards (50 FB 41852), the uranium recovery industry has attempted to reduce or eliminate dual Federal jurisdiction over groundwater and effluent ,
releases to the surface at NRC and Agreement State licensed ISL facilities. l e 1987. At the request of the Uranium Recovery Field Office (URFO), DWM developed, in consultation with the Office of the General Counsel (OGC) a Staff Position on regulation underground-water contaminants and in-situ uranium solution mining. This position stated that staff may elect, as a matter of regulatory policy, to discharge its responsibility by deferring to a State for regulatory control.
- 1993. The 1987 DWM memorandum to URFO was included as was further codified in the LLWM Uranium Recovery Program Policy and Guidance Directive System as LLWM 87-01.
- 1994.
- 1. Shaw, Pittman, Potts & Trowbridge on behalf of six companies engaged in ISL uranium operations requested a review of NRC's 1980 OELD Legal Opinion that provided the basis for NRC's legal authority to impose license conditions to protect groundwater from contaminants which result from licensed operations connected with ISL extraction of source material." OGC staff prepared a legal analysis for DWM on the issues raised by the industry and found that the legal arguments presented do not alter the conclusions reached in the 1980 OELD memorandum.5
- 2. Based on this OGC staff analysis, DWM responded in a letter to Shaw, Pittman, Potts & j Trowbridge, in which it stated that "(only] the depleted underground ore body is excluded I from the definition of byproduct material (in regards to the underground aspects of ISL j operations). All other waste is byproduct material and must be disposed of either as an {
authorized effluent release, or in conventional mill tailings ponds ... pursuant to criterion 2 of 10 CFR Part 40, Appendix A."8 i
8 j Memorandum from Malcolm R. Knapp to R. Dale Smith,"NRC Staff Positions on '
Regulation of Ground-Water Contaminants and in-Situ Uranium Solution Mining, dated May 28, 1987. (See Attachment E-3)
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- Letter from Anthony J. Thompson, Shaw, Pittman, Potts & Trowbridge to Malcolm !
Knapp, dated March 10,1994. (Not reviewad by DPV Panel but referenced in DVPR E-6.) l 5 Memorandum from Robert L. Fonner to Joseph J Holonich," Jurisdiction Over Wellfields at in Situ Uranium Recovery Operations, dated March 50,1994. (See Attachment E-5) 8 Letter from Malcolm Knapp, Director DWM/NMSS to Anthony J. Thompson, Shaw, i Pittman, Potts & Trowbridge," Suggested Reconsideration of Regulatory Authority Over in-Situ Leach facility Wellfields, dated June 2,1994. (See Attachment E-6) l I
DPVR A'ITACHMENT D 2 l I
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- 3. While not included in the DWM response to Shaw, Pittman, Potts & Trowbridge, the OGC staff memorandum used in the above response made a very cogent observation by noting that "[i]f NRC has no jurisdiction it has no authority to exempt."7
- 4. In 1994, DWM staff began to develop proposals for alternative acceptable practices for licensees to discharge liquid effluents contaminated water from ISL uranium recovery ,
operations. A draft Uranium Recovery Program Policy and Guidance Directive entitled '
" Effluent Releases from Licensed Uranium Recovery Facilities, dated April 1994, was provided for comment to officials from concerned States (Wyoming, Texas, and Nebraska) as well as representatives of the uranium recovery indus+ry. On April 19, 1994, NRC staff held a public meeting in Cheyenne, Wyoming, where the Directive was discussed with officials from the State of Wyoming and representatives from the uranium recovery industry.s The draft was also discussed by telephone with officials from the States of Texas and Nebraska. Due in part to the comments received, DWM decided to issue a Staff Technical Position (S1 P on effluent disposal at ISL facilities) and announce its availability in the Federal Reoister for public comment.
e 1995.
- 1. NRC received a total of 25 written comments on the draft STP. These comments were analyzea and staff responses developed.' There were many concerns from the industry; however, it appears as if the Agreement States did not have any substantive concerns.
- 2. DWM issued a Staff Technical Position (STP) on " Effluent Disposal at Licensed Uranium Recovery Facilities.' The STP continued to differentiate between how process and restoration effluent wastes at ISL facilities would be regulated.
7 Memorandum from Robert L. Fonner to Joseph J. Holonich, " Jurisdiction Over Wellfields at in Situ Uranium Recovery Operations, dated March 30,1994, p. 2. (See Attachment E-5)
- Letter to " Attached List of Licensees, Applicants, and State from Joseph J. Holonich, dated June 23,1994. (See Attachment E-8)
' DWM,"U.S. Nuclear Regulatory Commission Documentation and Staff Response to Comments on Draft Policy and Guidance Directive for Effluent Release at Uranium Recovely Facilities, February 1995. (See Attachment E-9)
' Division of Waste Management," Staff Technical Position on Effluent Disposal at I Licensed Uranium Recovery Facilities," dated April 1995. (Cover Page E-10) l DPVR ATTACHMENT D 3
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- 3. Directive DWM 95-1," Staff Technical Position on Effluent Disposal at Licensed Uranium Recovery Facilities," was added to the Uranium Recovery Program Policy and Guidance Directive System in April 1995."
- 4. After the 1995 STP was issued, Power Resources, Inc., wrote to DWM expressing serious concerns and asserting that the STP contained "significant flaws and inconsistencies." Power Resources provided a six page set of comments on the subject STP.12
- 1997.
- 1. NRC published a " Draft Standard Review Plan for in Situ Uranium Extraction License Applications," NUREG-1569, that incorporated the effluent release concepts frorn the 1995 STP.
- 2. At the Uranium Recovery Meeting with the National Mining Association in Denver, Colorado, NRC staff discussed among other topics concerns of the NMA about consiciency among different NRC polices; jurisdiction over in situ leach (ISL) wellfields including the definition of 11e.(2) byproduct material; disposal of radium / barium sludge and con, current current jurisdiction by State over nonradiological constituents and state authonty in non 11e(2) disposal guidance.sa
' 3. A number of comments on the draft Standard Review Plan were rec (ived. Power Resources Inc. (PRI) again stressed the need for an effective and trrrpugh review of this document with input from state and federal agencies, and the ISL industry. PRI further stated that "[t]his SRP has the potential to significantly impact our future expansion plans, and possibly our profitability and viability, if carried forward without the necessary review and input."
" Directive DWM 95-01, " Staff Technical Position on Effluent Disposal at Licensed Uranium Recovery Facilities," Uranium Recovery Program Policy and Guidance Directive System, approved April 20,1995. (See Attachment E-11)
'8 letter to John H. Austin, DWM, from Paul Hildenbrand, Power Resources Inc., dated October 17,1995. (See Attachment E-12)
DWM Staff material presented at the June.3-5,1997, Uranium Recovery Meeting with the National Mining Association, Denver Colorado. (See Attachment E-13)
" Letter to Chief, Rules and Directives, NRC, from Mark Wittrup, Director, Environmental and Safety, Power Resources Inc., dated December 1,1997. (See Attachment E-14)
DPVR ATTACHMENT D 4
v -
e 1998.
- 1. .' The National Mining Association (NMA) submitted a White Paper, prepared by Shaw, Pittman, Potts & Trowbridge and the Associate General Counsel of NMA, to the NRC in
. April 1998.
- 2. Staff prepared a draft Final NUREG-1569', Appendix C, entitled " Effluent Disposal at !
Licensed in Situ Leach Uranium Extraction Facilities,"in which, among other topics, it is explicitly stated that
" Surface impoundments that contain only mine waste water do not have to meet the specific requirements of Part 40, Appendix A, because NRC does not have regulatory ,
authority over the material in the pond. However, the pond design and monitoring requirements must be described in enough detail for staff to evaluate the environmentalimpacts of the facility. Furthermore, based on evaluation of cumulative
-. impacts, NRC may require specific license conditions to remediate the anticipated impacts of the surface impoundments." [ NOTE: Since the draft Final NUREG-1569 has not been approved for publication it should be considered not releasable and predecisional under FOIA.]
- 4. _. After Mr. Ford submitted his DPV, another DWM staff member provided the following observations to Mr. Holonich. l "As a radiation safety officer for several years at one of the currently operating in sliu leach uranium extraction facilities, I have the experience and knowledge of some of the operati6ns.
l "1. During operation of the well fields there are other materials mobilized through the oxidation and combination into carbonate compounds. Some of these materials are radioactive byproduct materials of the process such as Radium and Radon.
Other materials are also mobilized, such as calcium and possibly some rare earth materials.
l is " Recommendations for a Coordinated Approach to Regulating the Uranium Recovery Industry: A White Paper' presented by the National Mining Association, dated April 22,1998.
(See Attachment E-15)
' Appendix C, Draft Final NUREG-1569," Effluent Disposal at Licensed in Situ leach Uranium Extraction Facilities, undated, pp. C-1 C-2. PREDECISIONAL DOCUMENT. (See Attachment E-16);
Note from J. H. Lusher to J. Holonich re " William H. Ford's Differing Professional View Concoming Nuclear Regulatory Commission Regulation of Liquid Effluents from in Situ Leach ,
Uranium Extraction Facilities," dated October 27,1998. (See Attachment E-17) !
l DPVR ATTACHMENT D 5 l
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l "A. These materials plate-out on the piping and settle out as sludge in the waste ,
ponds, l 1
"B. I have seen Ra 226 concentrations greater than 5,000 pCi/g plated out on the inside surfaces of pipes and tanks, as a material called calcite (calcium '
l carbonate, Radium carbonate) and as sludge in the bottom of waste ponds.
"2. This material was mobilized as part of the extraction process and remains as part of the process untilit is cleaned up and the ore zone and aquifer are restored to !
EPA and NRC standards for release for public use."
- 5. Staff prepared a Commission Paper entitled " Recommendations on Ways to improve the Efficiency of NRC Regulations at in Situ Leach Uranium Recovery Facilities". Panel has reviewed most recent version (as of December 16,1998).
1 Other Documents Reviewed
- 6. Section 3.4.2.4 from Power Resources, Inc., Gas Hills Project, US NRC Amendment j Application, Chapter 3, page 3-50, dated June 1998.
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Proposed Commission Pape'r," Recommendations on Ways to improve the Efficiency of NRC Regulation at in Situ Leach Uranium Recovery Facilities," draft of December 16,1998.
PREDECISIONAL DOCUMENT (See Attachment E-18)
Section 3.4.2.4 from Power Resources, Inc., Gas Hills Project - US NRC Amendment Application, Chapter 3, page 3-50, dated June 1998. (See Attachment E-19)
DPVR ATTACHMENT D 6
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i Differing Professional View Panel Report -
Concerning Handling of Liquid Effluent Releases from In Situ Leach 7 L'
Operations at Licensed Uranium Recovery Facilities {;
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i ATTACHMENT E I
l COPIES OF REFERENCED DOCUMENTS CITED IN ATTACHMENT D k \b t
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l NRC's AUTHORITY TO IMPOSE CONDITIONS TO PROTECT GROUNDWATER IN ITS LICENSES FOR THE IN SITU EXTRACTION OF .
SOURCE MATERIAL IN NON-AGREEMENT STATES i i
This analysis deals with the question of NRC's legal authority to impose license conditions in its licenses for the in situ e.xtraction of source material to protect groundwater from contaminants which result from the licensed activity in non-Agreement States.
In summary, the NRC has the legal authority to impose such license conditions under its licensing and regulatory authority in the Atomic Energy Act of 1954, as amended by the Uranium Mill Tailings Radiation Control Act of 1978.
This specific authority reinforces the general authority available under the National Environmental Policy Act (NEPA) to impose environmental license conditions.M
' The Factual Background Uranium oxide (U 340 ) is processed from uranium ore by a series of physical and chemical actions. The conventional uranium oxide production process is y It is noted that other agencies may have regulatory. authority in this area under other Federal laws, such as the Resource Conservation and Recovery Act of 1976, 42 U.S.C. I 6901 et seq., the Federal Water Pollution Control Act. 33 U.S.C. I 1251 et seq. and the Safe Drinking Water Act, 42 U.S.C. i 300 et sea.
ATTACHMENT A ATTACHMENT DPVR E-1
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conducted in uranium mills which are generally located near uranium mines, and.the mills receive uranium ore either directly from mines or from inter-mediate ore buying stations. Uranium ore is also processed by an,in situ or solution extraction process which combines uranium mining and milling into essentially one operation.U This process, also called injection mining or borehole leaching, involves (1) the injection of a leach solution (lixiviant) through lined wells into a uranium-bearing ore body to form a chemical compound with the uranium, (2) mobilization of the uranium complex formed, and (3) surface recovery of the solution bearing the uranium complex via production wells. Uranium is then separated from the pregnant leach solu-tionbymillingunitoperationsatthesurface.M Unlike conventional milling operations, in situ extraction requires no ore <
mining, transportation, crushing, or grinding. Moreover, the solution y In 1976, about 2% of the total uranium concentrath produced in the United States resulted from in situ operations. U.S. NUCLEAR REGULATORY COMMISSION, DRAFT GENERIC ENVIR0 MENTAL IMPACT STATEMENT ON URANIUM MILLING, at B-2 (NUREG-0511 April 1979). There is reason to believe, however, that in situ extraction will become a significant means of uranium extraction in the near future, especially in States like Texas and Wyoming, where small pockets of uranium deposits are particularly susceptible to in situ techniques. See U.S. NUCLEAR REGULATORY COM-MISSION, TRANSCRIPT OF PUBLIC HEARINT IN THE MATTER OF DRAFT GENERIC ENVIRONMENTAL IMPACT STATEMENT ON URANIUM MILLING, 46 et 3 g,. (Denver, Oct. I 1979) (statement of James Montgomery, Colorado 7epartment of Health .
y U.S. NUCLEAR REGULATORY COMMISSION, FINAL ENVIROMENTAL STATEMENT RELATED TO THE OPERATION OF HIGHLAND URANIUM SOLUTION MINING PROJECT, 3-1 (NUREG-0489, Nov.1978); Friedman, Environmental Problems Relating to Uranium Mining and Milling, 11 NAT. RESOURCES LAW. 277 (1978). 1 o
c extraction process does not produce conventional mill tailings.O It does,
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however, produce solid and liquid wastes that are similar to those of con-
ventional processes and that also require controlled disposal. Disposal of wastes from in situ operations may be accomplished through management like that used for conventional tailings piles or through deep well disposal, also known as reinjection. As a general rule, the most serious environmental I impact associated with solution extraction operation is potential contamina- ;
tion of the groundwater by these wastes.E Uranium milling, whether by the conventional or by the in situ process, has .
always required a-licen'se under the Atomic Energy Act. The uranium oxide is l
y Uranium ore usually contains only a yery small fraction, of ten less l than 1 percent by weight, of useable uranium oxide. Consequently, l the milling process generates large amounts of waste tailings in the i fom of sand-like material. These " mill tailings" contain traces of j the chemicals used to extract uranium from the ore and, more importantly, most of the radioactivity naturally associated with the ore due to the. 4 presence of radioactive. decay' products of uranium. -See NRC Policy State- !
l ment on " Assessment of Environmental Impacts of Uranium Mills in Agreement States," 43 F.R. No. 81 April 26,1978.a-- - - - -
y U.S.' NUCLEAR REGULATORY COMilSSION, FINAL ENVIRONMENTAL STATEMENT RELATEL.TO THE OPERATION OF HIGHLAND URANIUM SOLUTION MINING PROJECT, l
3-1 THROUGH 3-6 (NUREG-0489, Nov.1978).
l 9
i source material which the Atomic Energy Act of 1954 requires a license for
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its possession and use "after removal from its place of deposit in nature."O During' the' two decades of licensing the processing of uranium or'e, attention
' has focused on the control over mill tailings from conventional uranium milling, which, until the Atomic Energy Act was amended on November 8,1978 by the Uranium Mill Tailings Radiation Control Act (UMTRCA) E were not themselves within the definition of source material (or any other material licensable by the Commission) and therefore the mill tailings themselves were beyo6d the NRC's licensing jurisdiction.E l
1 y "5ource Material" is defined in section 11z of the Atomic Ene:Sy Act of 1954, 42 U.S.C. I 2014z. Section 62 of that Act, 42 U.S.C. I 2092, generally, 'equires r a license for the transfer, receipt, possession etc. of "any source material after removal from its place of deposit in inature, except that licenses shall not be required for quantities of source material which, in the opinion of the Consission, are unimportant".
NRC is authorized to issue licenses to possess and use source material resulting from uranium ore processing by Section 63 of the Atomic Energy Act, 42 U.S.C. I 2093. Regulatory requirements for such source material licenses 'are stated in 10 CFR Part 40 " Domestic Licensing of Source Material." The conventional' mining operation itself, however, is under the jurisdiction of other agencies and departments. For example, the Federal Mine Safety and Health Act of 1977 (Public Law 95-164 Novem-ber 9,1977) authorizes the Secretary of Labor to establish health and '
safety standards for mine workers. Also, the Environmental Protection Agency has authority for regulating certain ' environmental aspects of mining under the Resource Conservation and Recovery Act of 1976. '
7f Public Law 95-604, 42 U.S.C. 5 7901 el. sea.
_8f Prior to November 8,1978 regulatory jurisdiction under the Atomic Energy Act was exercised, however, over the generation of the tailings
-on the premise that such generation was an integral part of the mill operation.
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- In 1972, however, the AEC published a regulation requiring the preparation of an environmental impact statement, under the authority of the Nativnal .
Environmental Policy Act (NEPA),U for each license issued for uranium ore processing. Subsequent to 1972 and until the enactment of the UMTRCA, the NRC licensed and regulated uranium ore processing in non-agreement states under its licensing and regulation of scurce material authority in the Atomic Energy Act as supplemented by NEPA. However, since the mill tailings -
themselves were not material licensable by NRC once the underlying source
. material license for the processing of the uranium ore tenninated, there was j no longer any legal basis for further NRC regulatory control of the mill tailings.- This was one of the problems addressed by the Congress in the UMTRCA. That Act specifically expanded the Connission's jurisdiction in this area and established a comprehensive regulatory regime for the licensing and regulation of the tailings or wastes produced by the extraction or con-centration of uranium or. thorium from any ore processed primarily for its source material content.
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It is from this historical perspective that we now turn to consider the question raised. We consider first the relevant authority available to the Connission under the Atomic Energy Act, as amended by the UMTRCA. Then we will' examine the relevance of NEPA to the exercise of the NRC's licensing
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authority.
9f 42 U.S.C. 6 4321. The procedures and guidelines for th9se statements are set forth in 10 CFR Part 51 " Licensing and Regulatoiy Policy and Procedures For Environmental Protection".
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II. The Jurisdiction of the NRC Under the Atomic Energy Act of 1954 l
A.- The. Atomic Energy Act, prior to its' amendment by the UMTRCA. ,
For purposes of analysis, we begin with the relevant provisions of the Atomic Energy Act, which were not affected by the UMTRCA.E There is no reasonable basis to question the clear and long-exercised legal authority available to the' NRC to license the processing of uranium ort which produces source material. In the exercise of this licensing authority, the NRC is authorized to " govern any activity authorized pursuant to [the Atomic Energy]
Act... in order to protect health and to minimize danger to life or. property."
42 U.S.C. I 22011.(3). In addition, the Comission is authorized to "estab-l'ish by rule, regulation, or order, such standards and instructions to govern the possession and use of... source material... as the Comission may ,
deem necessary or desirable... to protect health or to minimize danger to l
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life or property." 42 U.S.C. 5 220lb.. Each license "shall be in such form and contain such terms and conditions as the Commission may, by rule or regulation, prescribe to effectuate the provisions of,[the Atomic Energy]
Act..." 42 U.S.C. I 2233. NRC may exercise this regulatory authority and
- control over all integral parts of an activity, such as the extraction of source material, for whichan NRC license is~ required by the'dtomic Ehergy Act.
.J,0j For purposes of the analysis at this point, we exclude the obligations placed on NRC by NEPA. This matter is discussed subsequently, under Part III.
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! This application of the source material licensing and regulatory authority of the Atomic Energy. Act has been consistently followed by the NRC and its predecessor for years.S/
B. The Atomic Energy Act as amended by the UMTRCA.
I The UMTRCA established a remedial action program to stabilize and control uranium tailings at inactive mill sites as well as a program for the regula-tion of mill tailings during uranium or thorium ore processing at active j mill operations.E/ Nowhere in the UMTRCA is there specific mention of in situ extraction. In fact, it appears that the authors of the UMTRCA were primarily concerned with the mill tailings and waste from conventional I uranium milling techniques, rather than in situ operations.E Neverthe-less, as we discuss below, the UMTRCA did reinforce the NRC's licensing and regulatory authority under the Atomic Energy Act in respects which are applicable both to conventional milling and to in situ processing of uranium
, or thorium ores to produce source material.
11f 1 See legal opinions which are printed in the hearings, " Uranium Mill Tailings Control Act of 1978," before the Subcormittee on Energy and Power, Connittee on Interstate and Foreign Commerce, 95th Cong., _2d.
Sess., June 19, 20 and August 2,1978, at pp. 204-207.
12f UMTRCA, section 2, 42 U.S.C. t 7901 and H. Rep. 95-1480, Pt. 2 at 25, 29 (1978). Title I of the UMTRCA is concerned with the remedial action.
program for inactive mill sites, and Title II with uranium mill tailings licensing and regulations.
- 13/ See H. Rep. 95-1480, Pt. 2, at 25, 29 (1978), which discusses the hazards associated with the enomous tailings piles generated in conventional jnilling operations. -
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- 1. The Statutory Language Section 201 of the UMTRCA amends section 11e. of the Atmic Energy Act by expanding the definition of bygroduct material, a material ove.r which the NRC clearly has licensing and regulatory jurisdiction under the Atomic Energy Act (Section 81, 42 U.S.C. 6 2111), to include:$
the tailings or wastes produced by the extraction or concen-tration of uranium or thorium from ariy ore processed primarily for its source material content.
A literal reading of this definition would encompass the above-ground wastes produced by any processing of ore primarily for its source material content.
The scant legislative history which is pertinent supports this conclusion.
(infra., p.11).b l
14f Section 11e.(2), 42 U.S.C. I 2014e.(2).
For purpores of this analysis, there is no. need to consider the question 15] of whether the depleted underground ore bodies left over from in situ An earlier leaching fall within the definition of tailings
- waste. ;
staff analysis concluded that the UMTRCA does ist appear to require regu- l lation of the subterranean ore bodies depleted by the in situ extraction l process. See memorandum from Howard K. Shapar to the Commission, dated May 7, 1979. This memorandum also concluded, consistent with the text '
of this analysis, that the definition of byproduct material in the UMTRCA covers the management of the wastes from in situ extraction that occur above ground (including such wastes before they are re-injected?. Regu-latory authority over the surface material is a sound legal bas 1s for imposing license conditions dealing with the possible contamination of -
groundwater by residues from' that material or from the in situ operations. ,
The NRC's definition of section 11e.(2) byproduct material is consistent with the foregoing. 10 CFR i 40.4(a-1) (1979). The regulatory defini-tion repeats the statutory definition in section 11e.(2) and adds these word "tionincluding processes.
discrete surf ace wastes resulting from uraniu operations do not constitute ' byproduct material' within this definitio
- This definition could, of course, be revised if necessary to cover specifi-c' ally the possible contamination of groundwater from in situ operations
I e.
_g.
The UMTRCA also amended the Atomic Energy Act by adding a new section 84 (42 U.S.C. 5 2114) which gives the NRC unambigucus regulatory authority over -
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the nonradi logical as well as the radiological hazards associated with the processing, possession and. transfer of tailings or wastes as defined in section 11e.(2) of that Act.36/ The exercise of this authority must confonn with the applicable general standards published by the Administrator of the Environmental Protection Agency (EPA) under new section 275 which was also added to.the Atomic Energy Act by the UMTRCA.E Moreover, the Comission must assure that its general requirements for the management of tailings or wastes (as defined in section 11e.(2)) are, to the maximum extent practi-cable, at least comparable to requirements applicable to the possession, transfer, and disposal of similar hazardous material regulated by the Admin-istrator of EPA under the Solid Waste Disposal Act, as amended.$
J_6f 6 Section 84 provides in part: "a. The Commission shall insure that the management of any byproduct material, as defined in section 11e.(2),
is carried out in such manner as--
(1) the Commission deems appropriate to protect the public health and safety and the environment from radiological and nonradiologicalhazards associated with the processing and -
with possession. a'n.d transfer of such material".
1J7f 42 U.S.C. I 2014a.(2).
J8/ 42 U.S.C. I 2014a.(3).
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I The new Section 275 to the Atomic Energy Act provides, among other things, thattheAdministratorofEPAshallpublisM standards of general application for the protection of the public health, safety, and the environment from radiological and non-radiological hazards associated with the processing and with the possession,. transfer, and disposal of byproduct material, as defined in section 11e.(2) of this Act, at sites at which ores are processed primarily for their source material content or which are used for the, disposal of such byproduct material. !
The UMTRCA also amended Section 274 of the Atomic Energy Act to provide for additional criteria for the discontinuance by the NRC of its regulatory responsibilities over byproduct material, as defined in section 11e.(2), and
)
the assumption thereof by an Agreement State.b Although the Agreement State area itself is beyond the scope of this analysis, included in the requirements which an Agreement State must' satisfy for NRC's jurisdiction to ,
bediscontinuedare:b
[ require] compliance with standards which shall be adopted by the State for the protection of the public health, safety, i and the envirorenent from hazards associated with such material which are equivalent, to the extent practicable, or more stringent than, standards adopted and enforced by the Commis-sion and the Administrator of the Environmental Protection Agency... *** and
- =. .
-; y _ .. . . - . - . . . . -- z :
l_9f 9 Section 275 was added.to the Atomic Energy Act by Section 206 of-the UMTRCA. -The quoted language is from Section 275b.(1), 42 U.S.C. I 2022b.(1).
2,0/
0 Section 204 of. the UMTRCA amended Section 274 of the Atomic Energy Act in several significant respects, the most relevant for present purposes being the additional of a new section 2740.
2_1/ Section 2740.(2), 42 U.S.C. 5 2021o.(2). ,
t i
l
[ require procedures which] ***E require for each license which has a significant impact on -
the human environment a writter. analysis *** of the impact of such license, including any activitjes conducted pursuant thereto, on the environment, which analysis shall include -
- an assessment of any impact on any waterway and ground-water resulting from such activities. (emphasis supplied).
- 2. The Legislative History Colloquies.during the floor debate in the Senate reveal an understanding, at least between the Senators involved, that the tailings or wastes from in situ operations ordinarily are covered by the regulatory program of NRC under the Atomic Energy Act as amended by the UMTRCA. In an exchange con-cerning in situ operations, Senators Wallop and Hart made it clear that in situ or solution extraction is within NRC jurisdiction, but may be appro-priate for exemption from the land transfer requirements (Section 83) of the UMTRCA:
Mr. WALLOP. Mr. President, I would like to obtain a clarifi-cation from the distinguished Senator from Colorado, the chainnan of the Nuclear Regulation Subcommittee, of several
. points regarding title II of the bill as passed by the other body. First, I understand that the other body revised the bill to permit the Nuclear Regulatory Commission to exclude a ursnium mill tailings disposal site from the requirement of a license if it determines that the site will not constitute an unreasonable risk to the public health and safety. .This is the same' discretionary authority now possessed by the Comission for other types of byproduct material. It occurs to me that this discretionary authority to grant exemptions from licensing would be particularly appropriate in the case of the so-called solution mining projects, in which uranium is brought to the surface by means of a fluid solution and is extracted with the remaining material pumped back below the surface. *** 1 22/ 'Section 274o.(3)(c), 42 U.S.C. I 20210.(3)(C)(ii).
,s
M r. HART . The distinguished Senator from Wyoming is entirely correct on each of the points he raised. The licensing exemption authority for mill tailings disposal sites could be ,
exercised for sites where uranium mining and extraction is ifmited to solution techniques. In fact, the Commission may well exercise this exen'ption authority for other disposal sites where such an exemption would not e 3 able risk to public health and safety.***gtitute an unreason-Senators Hart and Wallop also engaged in a di:cussion to the effect that "so-called solution mining projects, m which uranium is brought to the surface by means of a fluid solution and is extracted with the remaining material pumped back below the surface, would not generally be considered for transfer status under the new section 83b" of the Atomic Energy Act, which generally requires government ownership of land and tailings upon tennination of the milling operations. Senator Wallop expressed his understanding that such projects would not generally be considered for transfer status under section 83b. Senator Hart agreed, saying:b Contrasted with conventional mining and milling methods which cause significant surface disturbance and require extensive reclamation, solution mining techniques allow for the recwery of relatively small and widely scattered deposits of uranium with minimal disturbance of the land and prwide for waste materials to be reinjected into the original locations below the land surface from which the uranium was removed. There-fore, the necessity of transferring surface and subsurface title may not exist where uranium mining and extraction is limited to solution techniques.
These exchanges show that during the legislative process, these two Senators -
understood that the regulatory program established under the UMTRCA woul'd apply to all aspects of in ' situ operations. These exchanges indicate that 2_3/ Cong. Rec., daily edition, October 14,1978, at p. S19037.
24/ Cong. Rec., daily edition, October 13, 1978, at p. S18748.
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w 1
these Senators expected the NRC to regulate the wastes from in situ operations, but believed that the requirements (in Section 83) for the transfer to the government of tailings and their disposal site from such operations would at least appropriately be the subject of the license exemption authorized in section83b.E There is also legislative history which is relevant in another context for purposes of this analysis. Each of the House Comittee reports on the UMTRCA take note of the NRC's use of NEPA in regulating uranium ailling:
"As already noted, the NRC now regulates these tailings at active mills indirectly through its licensing of source material milling under the Atomic Energy Act of 1954, largely
.&. Section 83b. of the Atomic Energy Act provides in pertinent part that:
"The Commission shall require... that prior to the termination of any license [which results in the production of any byproduct material, as defined in section 11e.(2)]... title to the land...
shall be transferred to... the United Stetes, or... the ' State in
- which such land is located, at the optica of such State"....'
"Unless the Commission detemines prior to such termination that
- transfer of title to such land and such byproduct material is not necessary or desirable to protect the public health, safety, or welfare or to minimize or eliminate danger.to life or property."
Section 81 of the Atomic Energy Act (42 U.S.C. I 2111) authorizes the Commission to exempt certain classes or quantities "of byproduct material" from-the requirements for a license set forth [in Section 81]
when it reakes a finding that "the exemption... of such material... will not constitute an unreasonable risk to the common defense and security
~
and to the health and safety of the public." . . ~ ._
f If byproduct material as defined in section 11e.(2) is' exempted from licensing under Section 81, section 84 of that Act (42 U.S.C. I 2114) authorizes the Commission to require the persons, officers, or instru-mentalities so exempted from licensing "to conduct monitoring, perfom remedial work, and to comply with such other measures as it may deem
, necessary or desirable to protect healu. or to minimize danger to life or property...."
as a result of the ggpctment of the National Environmental Policy Act of 1969.--. .
The Commission, in keeping with its responsibilities and authorities under the Atomic Energy Act and the National Environmental Policy Act, is the lead agency _ in regulation, oversight .
activities.g" management of uranium mill tailings-related One of the committee reports goes even further, describing the NRC's environ-
. mental duties under the UMTRCA as follows:
With respect to nonradiological matters, the NRC, through its environmental review under the NEPA mandate, would impose controls consistent with those imposed by EPA on similar materials au thori ty.
gtained in other solid wastes subject to EPA III. NEPA Obligations The NRC staff in its uranium mill-(conventional and in situ) licensing actions has followed the practice of imposing conditions to mitigate health and environmental impacts as shown to be reasonably necessary by the environ-mental review process under NEPA. The imposition of such license conditions is en application of Commission policy which is rooted in the interpretation of the obligations placed on NRC by NEPA. Prior to NEPA the Commission's J_6/6 H. REP. 95-1480,ft42.- 95th Cong;; 2d'Sesse, 28(1978). There was
. no Senate Committee report on Title II (Uranium Mill Licensing and Regulations) of the UNTRCA. There is a Senate Comittee Report (S. Rep.
95-1266, Oct. 3,1978) on remedial action program for inactive sites, howeve r.
j[7/
s H. REP. 95-1480, Pt.1, 95th Cong. , 2d Sess.,15 (1978).
jyB/ JJ!. . at 16.
9
8 4
- regulatory responsibility was essentially confined to scrutiny of and pro-tection against hazards from radiation and did not encompass consideration !
i of non-radiological environmental issues.29/ Passage of NEPA, however, made
... environmental protection a part of the mandate of every federal agency j and department... [The Comission] is not only permitted, but compelled, to l
\
take environmental values into account..." and to consider environmental issues just as it considers other matters within its mandate. Calvert Cliffs' !
Coordinating Comittee v. A.E.C., 449 F.2d 1109,1112 (D.C. Cir.1971).
I Shortly af ter the Calvert Cliffs' decision, the Comission issued new NEPA regulations which, in pertinent part, required the preparation of an environ-mental impact statement for each uranium mill licensed by it. The basic i
issue, for purposes of this analysis, is whether NEPA authorizes the Comission to exercise the regulatory power it unquestionably has - the power to license and regulate in situ operations - in a fashion that will minimize to the extent practical the adverse environmental impacts which could result by the contamination of groundwater from such operations.3_0/ This issue must be msolved in the affirmative under the leading judicial interpretations of NEPA.
2_9f New Hampshire v. A.E.C..,406 F.2d 170,175 (1st Cir,1969), cert.
denied, 395 U.S. TETT19se). _
~
~ 3.0/ The Comission, as stated previously in the text, has statutory authority to condition its licenses. 42 U.S.C. I 2233. Implicit in the power to issue a license is the power to issue the license with reasonable conditions.
Regulations of the Council on Environmental Quality .(CEQ) on " Implementing National Environmental Policy Act Procedures," provide that the " lead agency shall include appropriate conditions in... permits or othe,r Approvals." (40 C.F.R. I 1505.3).
p
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. s' Section.102 of NEPA, 42 U.S.C. 6 4332, is a direction to all acencies that
" ... to the fullest extent possible... the policies, regulations and public laws of the United States shall be interpreted and administered in accordance with the policies.'[of NEPA]." The Supreme Court stateo in Kleppe v. Sierra Club,
' 427 U.S. 390, 409 (1976) that:
... NEPA announced a national policy of environmental protec-tion and placed a responsibility upon the Federal Government to further specific environmental goals by 'all practicable means, consistent with other essential considerations of national policy.' NEPA i 101(b), 42 U.S.C. 4331(b).
1 As Judge Wright said in Calvert Cliffs', 449 F.2d supra at 1128: " Clearly, it is pointless to ' consider' environmental costs without also considering If the Commission is to administer the Atomic Energy action to avoid them."
Act, as amended, in accordance with the " national policy'of environmental
. protection", Kleppe, supra., then it must have the authority to use its license conditioning power when necessary to protect the environment just as l even prior to NEPA, it used that power to protect against threats to radio-logical safety. Cf. Calvert Cliffs', supra.
Where, as here, an agency has a " jurisdictional toehold"E over a licensed
- activity, its authority to use that power to protect the environment has f
These words were used by Judge Leventhal in Henry v. F.P.C., 513 F.2d
~
- ]J1/ 395, note 33 on p. 407 (D.C. Cir; 1975). - In Henry, the Iurisdictional toehold" was based on F.P.C. jurisdiction over a tap and value inter-3 connection. By contrast, the NRC exercises licensing and regulatory jurisdiction over in situ operations which produce source material and section 11e.(2) byproduct material. Thus, the decison in Kitchen v.
F.C.C., 464 F.2d 801 (D.' C. Cir. 1972) which deals with a matter TteTephoneexchan9ebuilding)overwhichtheFCChadneverexercised regulatory jurisdiction is clearly inapposite here.
t 3
.17 -
been unequivocably recognized by the courts. For example, in Henry v.
~
F.P.A., supra, at 406-407, a case in which the F.P.C. (now FERC) had such a
" jurisdictional toehold", Judge Leventhal wrote:
NEPA requires an integrated view of the environmental damage that may be caused by a situation,. broadly considered, and its purpose is not to be frustrated by an approach that would ,
defeat a comprehensive and integrated consideration by reason 1 of the fact that particular... agencies have particular l occasions for and-limits on their exercise of jurisdiction. j What is required is that the FPC, in deciding whether to grant, deny or condition certificates of public convenience and necessity for. admittedly jurisdictional facilities, take into account the environmental costs of the gasification projects as a whole.
Similarly, the First Circuit decision in Public Service Co. v. N.R.C., 582 F.2d 77 (1st Cir.1978) is in point. The utility in that proceeding challenged the propriety of NRC's order to reroute transmission' lines. The court, after agreeing that the Commission had the requisite jurisdiction (under the Atomic Energy Act) over the transmission lines, Public Service Co.,
supra., note 7 at 81, and 85), rejected the view that NEPA pemitted the Commission to consider the environmental impacts of various transmission lines routes. without acting to minimize those impacts. (JId,.. note 17 at 85). The Court said in this regard (Jd., at 85-86):
y .. ..
Once having found that the Commission has jurisdiction over .
the transmission lines, we think it clear that, under the 1 dictates of NEPA, it was obliged to minimize adverse environ-
. mental impact flowing therefrom.*** The Connission has statutory authority to condition licenses.*** In this instance, the Commission used one of its' statutory powers in the furtherance of NEPA, whose mandate the Commission rust follow. The Connission is under a dual obligation: to pursue the objectives of the Atomic Energy Act and those of the R National Environmental Policy Act. 'The two statutes and the
p , , . .
regulations promulgated under each must be viewed in para
-[ sic] materia' Citizens for Safe Power v. NRC, 524 F.2d 1291, ~
1299 (C. A.D.C. ,19 75) .
IV. Conclusion The NRC has licensing and regulatory jurisdiction under the Atomic Energy Act over in situ operations which produce sourc.e material. Under that Act, as amended, by the UMTRCA, the Commission has the responsibility and authority to assure that byproduct material as defined in section 11e.(2), (i.e.
tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content),
is managed so as to protect the public health and safety and the environment from radiological and nonradiological hazards associated with the processing and with the possession and transfer of such material. Potential contaminants of groundwater resulting from in situ operations are clearly within the scope of the NRC's regulatory control under the Atomic Energy Act, as amended, by the UMTRCA. Moreover, this regulatory authority reinforces the NEPA authorization and directive for the Commission to exercise its licensing and regulatory authority in a fashion that will minimize to the extent practical the adverse environmental impacts resulting from the activities which it licenses, one of which is in situ operations.
In view of the foregoing, the NRC is authorized to impose conditions in a t j
license for the in situ extraction of source material for the purpose of controlling possible contamination of groundwater from residues which are an integral part of that licensed operation.
w
.sg -
f; gp UNITED STATES j
NUCLEAR REGULATORY COMMISSION
. ;, j , . wtsH:NcTom. o. c. 20sse v
- "* APR 2 51980 MEMORANDUM FOR: Chairman Ahearne FROM: , Howard K. Shapar Executive Legal Director THRU: William J. Dircks (SUMM Acting Executive Director for Operations
SUBJECT:
OELD LEGAL OPINION ON TWO QUESTIONS RELATING TO OPERATION OF THE URANIUM MILL TAILINGS RADIATION CONTROL ACT OF 1978 Following your recent meeting with Governor Herschler of Wyoming, (which capped a series of meetings and exchanges of letters with the Governor and other officials of the State), you asked for answers to the following questions:
4
- 1. What is the extent, if any, of NRC's legal authority to impose license conditions to protect groundwater from contaminants which result from licensed operations connected with in-situ extraction of source material?
- 2. Has non-Agreement State authority over the non-radiological hazards of cranium mill tailings been preempted by the Federal Goverranent and, if not, what, if any, authority is shared between the NRC and the non-Agreenent States.
The preemption issue, in particular, is extremely complex because of some cumbersnee and internally inconsistent statutory language that the Attorney General of Wyoming has correctly likerd 'co a "Brobdingnagian Knot." Compre-hensive legal analyses of each question are presented in the two attachments to this memorandum. A summary of the conclusions is presented below.
Question 1. We conclude that the NRC has the legal authority to impose groundwater protection conditions upon its in-situ extraction . licensees under the licensing and regulatory authority found in the Atomic Energy Act of 1954, as amended by the Uranium Mill Tailings Ra_d_iation_Contrn1.Act of
\
1978, as amended. (Mill Tailings Act.) This is so even_though the defini-tion of uranium mill tailings in our regulations (10 CFR 40.4 {a-1))~ excludes underground ore bodies depleted by solution extraction. This is because the potential interaction with groundwater is so integrally related to the above-ground processing (which we do license) as to be properly the subject of license conditions, just as, historically, we were able to regulate the generation (but not subsequent use) of tailings from the conventional milling Contacts: W. Parler 492-7527 (Attachment A)
G. Cunningham 492-7203 (Atta h I I2'
} f ATTACHMENT DPVR E-2 (Jo h,uc m y,e, -
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3, process. This specific authority reinforces the general authority available under the National Environmental Policy Act to impose environmental license ,
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condi ttees,. -
. 4-Question 2. The second question presents extremely difficult questions of the proper constrvetten of the Mill Tailings Act knd the so-called remedial amendments to it. The problem is compounded by the pescity of legislative history.
A conclusion of preemption would mean that the federal government has se completely occupied the field of regulation ever the nonredfotogical hazards of uranium will tailings that there is no roca for aqr exercise of een- x
- . Agreement State authority in this area. Conversely, concurrent jurisdiction' f
would mean that non-Agreement States could esercise enthority over the very H~t
. ~. ' - same subject matter as the NRC -- the :>aradiological hazards of erenius . F~."- O
- sill tallings - though such concurrent exercise of aetherity would have to -'-
be consistant with the federal scheme of regulatten. We este however, that even where there is concurrent jurisdiction, the supremacy classe of the
^ Constitution requires that particular state regulation must give way to federsi authority in the event of a conflict such that compliance with both federal and state regulatory requirements is impossible. . .
Q 7..
Though the geestion is very close, we conclude that the letter legal view is
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s.
that there is f asofficient evidence of Congressional intent to completely M. and exclusively occupy the field to override the strong presumption'agatast -
implied preemption of historic state police powers to late matters F* effecting the public health and safety. There is, there oro, in our view,
- f. a
- concurrent jurisdiction ever the nonradiological hazards of armaius sill tailings. This conclusion is somewhat stronger with respect to the period before 5evasber 8.1981, because section 204(h)(1) of the Mill Tallings Act.
operates accordt to the best interirete-
, added by the remedial tion) to espressly preserve prev amendmentsIsusly eats jeg reement State autwrity
- ever the non-radiological hazards of .oranium all1 tai tags sotfl that data. ,, .
- h.i n; , -. ' a. .
. This paper has been coordinated with the Office of the General Counsel. ,.
Moward K. Shapar ~ ~ ~
' .~ - -
' Executive t.egal Director Attachments: Asr stated Distribution:
~ ~ Cunningham OELD R/ File cc Ceemissioner tilinsky Shapar ' . Chron Consissioner Kennedy
. Commissioner Hendrie N.
SECY s.
Commissioner Bradford t
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