ML20209F527
| ML20209F527 | |
| Person / Time | |
|---|---|
| Issue date: | 02/28/1995 |
| From: | NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| To: | |
| Shared Package | |
| ML20209F412 | List: |
| References | |
| NUDOCS 9907160047 | |
| Download: ML20209F527 (77) | |
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/Q {~' t'l U. S. Nuclear Regu11 tory Commission Documentation and Staff Response to Comments-on Draft Policy and Guidance Directive for Effluent Release at Uranium Recovery rac)!ities i
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Division of Waste Management i
U. S. Nuclear Regulatory Commission J
February. 1995 1
ATTACHMENT DPVR E-9 9907160047 990712 1
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U. ' S. Nuclear Requia: cry Commt ss ton Documenta: 1cn and Staff Response 13 ::nents on Draft Policy anc Guidance Directive for Ef-luent Release at Uranium Recovery Facilities The Division of Low-Level Waste sna Decommissioning of tne United States Nuclear Regulatory Commission prepared a draft Policy-and Guidance Directive (Directive)' entitled " Effluent Releases from L'1 censed Uranium Recovery Facilities", dated April. 1994.
Copies of this Directive were provided. for coment. to officials. from concerned States (Wyoming. Texas, and Nebraska) as well as. representatives of the uranium recovery industry. On April 19. 1994.
staff from NRC's newly formed Division of Waste Management (DWM) hejd 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.
The Directive was also discussed by telephone with officials from the States of Texas and Nebraska.
Due in part to the comments received. it was also decided-to issue d Staff Tecnnical Position (STP) on effluent disposal, and announce its availability in the Federal Register for public comment.
This report rc.. er:: : e : mre"ts "Oceived and staff evaluation and response to the comments.
,A total ofc25 written comments..ere suosequently received on the Directive from two firms and two associations representing the uranium industry.
These are: Kennecott Uranium Company'(KUC). Power Resources. Inc. (PRI). Uranium Producers of America (UPA) and American Mining Congress (AMC).
The written coments embodied all of the comments and discussions that had been
.comunicated. verbally to DWM staff by state and industry representatives.
Staff review resulted in identifying a total of eleven issues raised by the
.commenters. and grouping the issues thus identified under the following six main subject categories:
1.
Definitions and characterizations.
2.
Applicability to existing and new licensed facilities.
3.
Regulatory issues'.
4 Applicability of'U.S. Environmental Protection Agency's (EPA)
National Pollutant Discharge Elimination System (NPDES) regulations.
5.
Applicability of EPA's Underground Injection Control (UTC) program Regulations.
6.
Formal public comment on Policy and Guidance Directive.
The.coments and issues are discussed by subject category in the following The discussion under each subject category provides a list of the
-sections.
commenters; a' summary of comments and issues raised by the commenters; staff evaluation and response to coments; and revisions made i response to the comments.
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- 1. Definitions and Characterizations 1.1 Corimenters AMC(2.3.2.5 B J Kennecott Uranium Company (2 and 3)
Power resources. Inc/ (1.2 3. 4 and Si UPA (1) 1.2 Sunmary of Coriments and issues Raised The commenters requested clarifications and/or revisions to definitions and characterizations.of some of the terms used in the Directive.
These are:
definition of " aquifer": use of the term " source material". use of the term
- release"; characterization of the " waste stream" from the main ur r m recovery and processing plant: and character 12ation of on-site evaporation as the " primary" practice for disposal.of contaminated fluids and land applications and deep-well injection as " alternative" effluent disposal practices..
"Aouifer" Definition: ' AMC indicated that reference-in the Directive to "an aquifer or any other useable or potentially useable ground water" is not consistent with the aquifer definition in Appendix A to 10 CFR Part 40.
The commenters indicated that for a aater-bearing zone to be considered as aquifer. it must contain enougn ground water to provide an ongoing source of water for human, agricultural or stock consumption: and that anything less is not an aquifer and should not be the focus of regulatory concern.
Use of the Term " Source Material" AMC and PRI requested that the Directive be revised to replace the words " source material" with the word " uranium". on the basis that uranium in the 11xiviant solution contains less than.05%
uranium and does not meet the definition of licensed source material (in 10 CFR 40.4). Furthermore, the commenters indicated that the ore bodies depleted of uranium at in situ leach (ISL) facilities are not byproduct material by definition and that uranium in the lixiviant solution cannot therefore be a source W erial.
Use of the Term " Release" PRI Indicated that land applications and deep-well injection are not " releases". because the effluent does not leave the licensed area.
KUC objected to characterizing injection in deep wells as a " release".. in that once-injected, an effluent remains in the host formation and is isolated from the environment.
The numbers in parenthesis refer to the comment numbers as they appear in the commenters transmittals.
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AMC 1901CateG *nat tne *.em
" 19c 01~~'"gui F ng 7ete,een ~.ne genera "9 % ' :
tnat Constitutes disposal.
It stated tna:
- e.M ; A:'TeJ '/J: 'le.de 7 the terms " release" SM "t 4:ca'" mtermance30' ar y1'. 'eaf :o mapr regulatory problems and consideraD e confusion
"'c recues:ed that tne i
+ #.e": 1'sch3rge Direct t ve-c1nmguisn Detweer L: me "9'ea:e into the environment outside the ' censed area. and 1 1:xsed "disDosal" involving effluent release for disposal purposes.
Characterfrarlon of " Waste sveam" from tne Main Uranium Recovery Plant: AMC and PRI indicated that the permeate generateo from reverse osmosis treatment of contaminated water constituted clean water. and requested tnat the permeate should not therefore be characterized as a waste stream.
The commenters indicated further that wastewater from yellow cake processing in the main plant should be added as a waste stream.
In addition. the commenters indicated that ground-water sweep 1s primarily intended for ground-water restoration and that uranium recovery is incidental to this primary
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objective.
Evaooration versus Other Effluent Disoosal Practices: All four commenters
.(AMC. KUC. PRI. AND UPA) indicated that it was inaccurate to characterize on-site evaporation as the primary practice for disposal of contaminated fluids at licensed uranium recovery facilities cnd to characterize other disposal methods as alternative practices.
The commenters pointed out that while on-site evaporation has been the predominant practice at conventional uranium recovery facilit.1es. disposal by ceep-tell injection and land applications has In addition. AMC noted been in practice at ISL facilities for many years.
also and cited limitations on evaporation pond effectiveness.
The commenters requested that the Directive be revised to accurately characterize the on-
. going effluent disposal practices at uranium recovery facilities.
1.~3' Staff Response to Coments The Directive is intended to neither provide new regulations nor modify definitions in the existing regulations.
The purpose of the Directive is to Therefore, staff provide guidance in the application of existing regulations.
agrees that the definitions in Appendix A of 10 CFR Part 40 apply to the Accordingly, necessary language will be introduced in the STP to Directive.
clarify that the terms are used as per their definitions in the applicable regulations.
Specifically-. aquifer will be used as per its definition in Appendix A to 10 CFR Part 40. and reference to other ground-water sources will be removed.
In addition, staff has no ob,)ection to substituting the word " uranium" for the words " source material".
Staff notes, however, that the definition of " source material" cited by the commenters constitutes one of two definitions offered in the regulations. and one.that applies to ores. The other definition in the regulations (10 CFR Part 40: 540.4)-characterizes source material as uranium or thorium, or any combination thereof, in any physical or chemical form.
Therefore. staff agreement to the proposed revision to substitute " uranium" for " source material" should not be construed as an agreement by staff that
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the latter as' "scurce material' As for the use of the term " release" versus " disposal" sta" notes inat Part 20is2C 2J01; ces;gnates " release m ef fiver:s ' as a mi.posal prac ':e.
Consistent with this. terminology. the Jse cf the word " release" in :ne STP will be limited to'a disposal practice invoiving release of 11guld waste in effluents (i'.e.
surface waters).
This should remove any misunderstand 1ng
. concerning the'use.of the word " release" Staff further agrees to_ revise the character 12ations'of " waste-stream" from the-main uranium recovery and processing plant and disposal methods in practice to date at uranium recovery facilities, as suggested by the commenters.
1.4 Modifications to Directive The.above-stated staff response w111 be incorporated in the STP.
- 2. Applicability to Existing and New Licensed Facilities 2.1 Comenters PM 2) 1 2.2 Surrmary of Cownts and issues Ratsco l
_UPA indicated that it appeared from the discussions with NRC staff that l
existing deep well in.)ection wells and land applications would be
" grandfathered" but that NPDES. discharge systems would be required to meet UPA Indicated that it believed the requirements included in the Dii ective.
> that:all systems previously approved by NRC. where effluent discharge was authorized under a NPDES permit, should continue to be approved, and that approved limits should be changed only by a license amendment.
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2.3 Staff Evaluation and Response to Coments The' Directive will be-applied. uniformly to current and proposed effluent disposal practices..as applicable. Therefore. applicable requirements need to i
be-met at both. existing and new licensed facilities.: However, staff agrees that previously approved limits at licensed sites that do not conform to the applicable requirements in the Directive can be changed by a site-specific license amendment.
2.4 Modifications to D1rective
-The STP will clearly explain the above stated staff position concerning the applicability _ of the stated policy and guidance to current and proposed L
effluent disposal practices, and existing and new licensed facilities.
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- 3. Regulatory Issues
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3.1 Comenters 4: liv" gennecottUraniumy:omoanysi.2:
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- ,f, UCA (2.3.4.51 3.2 Sumary of Coments and !ssues Raisea t
The commenters raised'.three issues that were clas51 fled in this subject category by staff.
These are: ApplicaDie regulations and standards:
regulation of-radioactive versus non-radioactive toxic substances: and returning effluent to the aquifer..
Acolicable Reculations and Standards:
As. indicated in the previous section. AMC. indicated that the Directive should make a distinction between routine " release" involving effluent discharge into
.the environment outside the licensed area. and licensed " disposal" involving effluent release' for disposal purposes.
AMC stated that the.use of the term " release" to characterize some of the disposal practices addressed in the Directive leads to the presumption that 10 CFR Part 20 automatically Dravides the applicable regulatory limits which could in turn lead to confi c s altn the regulatory provisions in Appendix A to 10 CFR Part-40.
As an e<ampie of possible conflict in the effluent release standards in these regulations. AMC indicated that the radon release limit of 10 CFR Part 20 could conflict with the average O 1 pCi/l in Appendix B.2 release rate of 20 pCi/m /s in Criterion 6 of Appendix A to 10 CFR Part 40.
AMC explained and offered justification for not treating such licensed disposal practices as deep-well injection, land applications including AMC further indicated that
. irrigation, or evaporation. systems as " releases",
disposal'of minute quantities of byproduct material within the boundaries of a licensed facility in accordance with license provisions (i.e., within the provisions of Appendix A to 10 CFR Part 40) is not a " release" if the property can be later utilized for unrestricted use.
AMC further indicated that a.
similar reasoning can also apply in certain circumstances to residual radioactivity levels remaining after decontamination and decommissioning (D&D) activities and. prior to license termination and release of property for restricted use.
AMC recommended that NRC explicitly limit the applicability r.f effluent release limits in Appendix B'of 10 CFR Part 20 to proper scenarios so as to avoid conflicting regulatory requirements.
AM',also noted that the NRC and EPA proposed D&D radioactive cleanup standards (i.e.
15 mrem) raise serious questions about past and future disposal of aroduction bleed from ISL operations.
AMC indicated that according to a 3riefing paper by EPA, a radium concentration f 0.3 pCi/g (15 mrem) would 9,
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In additiCn. all commenters :AMC applicability of the NPDES 3*ana r :s is e"1..ent release r arf ace saters.
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AMC. KUC and UPA pointed out Inat tre stan ards for radioact've constituents
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in 10 CFR Part 20 are not ansistent.viin tne NPDES standards. and incicated i
that the latter standarcs are Ine most appl icacie to etfluent dispaa; K uranium recovery facilities. pursuant to 40 CFR Part !92 and Criter'on S.
j Append 1x A to 10 CFR Part 40 (tnese comments are discussed in deta11 under subject category 4: Applicability of NPDES Provisions to Effluent Release in Surface Waters).
AMC and PRI addressed the applicability of EPA's UIC program provis1
, (i.e.
40 CFR Part 146 - Underground Injection Control Program: Criteria and Standards).
AMC indicated that deep-well injection is not authorized at uranium recovery facilities without a UIC permit by the EPA or an EPA Agreement State and that the Directive merely repeats unnecessarily existing requirements by other regulatory agencies and programs.
PRI indicated that discussion related to deep-well injection proposals should include a cescription of tne UIC program provisions itnese comitients are discussed in de*all under subject category 5: Applicability of EPA's UIC Program Provisions to Injecr on in Deep 4e'isi Reculations for Radioactive versus Non-radioactive Toxic Substances: AMC indicated that the regulations in 10 CFR Part 20 apply to radionuclides and not to toxic substances, whereas the provisions of Criterion 5. Append 1x A to 10 CFR Part 40 apply to toxic substances.
PRI indicated that including " contaminants and toxic substances" in the review of proposals was inconsistent with the requirements in 10 CFR Part 20. Subpart K. which applies to radioactive constituents: PRI requested that reference to toxic substances be deleted from the Directive.
UPA indicated that it was not clear if the staff position was to regulate only radioactive materials in effluent discharges, or that staff intended to regulate both radioactive and non-radioactive constituents.
UPA indicated that it believed that NRC charter is to regulate radioactive materials. and leave the regulation of non-radioactive constituents to the EPA and the States.
Return of Effluent to the Aouifer:
KUC. PRI. and UPA indicated that the requirement that released effluents must not be retttrned to an aquifer or any other source of useable or potentially useable ground water was misleading, inaccurate. restrictive. and/or redundant. because: (1) the definitions of these terms are vague: (2) host aquifers for deep-well injection contain brine or petroleum-contaminated ground water: (3) not all effluents come from aquifers; and (4) aquifers constituted the only source of ground water.
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- 3;3 lStaifivaiuanon ana Resoonse w x re~-
ADolirable Pequlations and Starcarm In genera:
eopilcations ard proposals for disooSal of I1 Quid v.aSte from
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- dranium "eccie") f3C1'1!19s must meet the regulations 10 Append 1 < a to 10 CFR Part 40. a%1 10 CFR Part 20. as applicable cepending on the'proposea alsposai proceaure.
Applicable regulations in Append 1 < % to 10 CFR Part 40 mainly include design standards for construction, maintenance. and operation of surface impoundments that are used for disposal of 11gu'1d wastes cr wastes containing free 11gulds
.(Criteria SA(1)1through SA(5)): installation.of liners-(Criterion SE): and seepage control (Criterion 5F).
Appendix A also includes other generally l
. applicable provisions. Including'in particular the site-specific ground-water
-protection standards for both radioactive and non-radioactive hazardous constituents (Criteria 5B and SC):' corrective action programs (Criter1on 50).
i ground-water monitoring requirements (Criterion 7); and closure requirements (Criter1.on 6).
,Furtherm. ore. Criterion 8 of Appendix A to 10 CFR Part 40 requires that byproduct materials must De managed so as to conform to the applicable EPA regulations in 40 CFR Part 440. " Ore Min ~g and-Dressing Point Source
. Category: Ef fluent Lim tations Guidelines and New Source Performance Standards..Subpart C Uranium. Raalum..ano vanaalum Ores Suocategory." as codified cn January 1. 1983
' ele re;ulati ns provide technology based 11mitations' for cisposal of..as:enater from uranium mining and milling facilities by release into surface waters.
l Byproduct material disposal'under Part 20 requires compliance with'the applicable regulations in'10 CFR Part 20. Subpart K (S20.2001, 520.2002'and 520.2007), and Subpart D (S20.1301 and S20.1302)..Subpart K offers provisions 4
for byproduct material disposal by " release in effluents" (S20.2001). or other disposal' methods. proposed by the licensee (520.2002).
Among other requirements; the provisions in 520.2001 and 520.2002 require compliance with the radiation dose ~11mits for individual members of the public in S20.1301, and a-demonstration of compliance with these limits as provided in S20.1302.
i In addition the regulations in 520.1301 require that licensees who are-
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sub)ect.to the provisions of U.S. Environmental Protection Agency's (EPA)
- generally applicable environmental standards in 40 CFR Part 190 shall comply with these standards.
520.2007 require that licensees and applicants must also The provisions in comply with other applicable Federal. State. and local environmental and i
health protection regulations' governing any other toxic or hazardous properties'of;1.icensed materials disposed of under.Subpart K.
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- In addition to the above requirements. licensees and applicants considering
-i disposal of' licensed materials under the provisions of either S20,2001 or are further required,to comply with NRC's regulatory provisions for 1520.2002 decommissioning'of licensed. facilities, prior to facility closure and license r
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termination.
These provisions include the arterin cleanup criteria present y in use, and those specified in the final rule when the final rule is promulgated (the proposed radiological criteria for decommissioning are provided in the proposed rule in 10 CFR Part 20. Subparts S20.1401 through S20.1405. 8 Vol 59. No, 161, page 43228. dated August 22.1994).
In consideration of the above regulations. 1t can be concluded that proposed disposal of liquid waste by release in surface waters must comply with the applicable EPA regulations in 40 CFR Part 440 (in conformance to Criterion 8 of Appendix A to 10 CFR Part 40). as we.li as the dose limits for individual members of the public as provided in S20.1301 and S20.1302 (pursuant to S20.2001).
Proposed disposal by on-site land applications including on-site irrigation, injection in deep wells, or other methods not specified in Part 20, must meet the provisions of S20.2002.
In addition, all proposed disposal under Part 20 must also comply with other applicable Federal, State, and local environmental and health protection regulations governing any other toxic or hazardous properties of disposed materials. pursuant to S20.2007 as well as NRC's regulatory provisions for decommissioning.
Reaulation of Radioactive versus Non-radioactive Toxic Subs _tances: As stated in the previous section, the regulations in Appendix A to 10 CFR Part 40 require that site-specific ground-water protection standards be established for hazardous constituents that may include both radioactive and non-radioactive constituents.
The regulations in 10 CFR Part 20 require that proposals for disposal under subpart K comply with the radiation dose limits for individual members of the public S20,1301. Other provisions in Subpart K require that licensees also provide a description of the waste including its physical and chemical properties important to risk evaluation (S20.2002 (a)).
The provisions in 520.2007 reguire that licensees and applicants must also comply with other applicable Federal. State, and local environmental and health protection regulations governing any other toxic or hazardous properties of licensed materials disposed of under Subpart K.
Compliance with the Subpart K regulations would require site-specific radiation dose analysis or measurements to demonstrate that the dose and health risk levels associated with radioactivity are within the limits permitted by the regulations (S20.1301).
In addition to the radiation dose, it may also be necessary in some cases to conduct analyses to assess the chemical toxicity of radioactive and non-radioactive constituents in order to evaluate the health risks associated with a particular disposal procedure, in compliance with the regulations in Subpart K or other applicable State and Federal regulations, pursuant to 520.2007. Staff will work with other appropriate State and Federal agencies if necessary to review chemical toxicity evaluations that may be conducted on a site-specific basis to satisfy NRC's and other Federal and State regulations.
Return of Effluent to the Aauifer: Reference to the return of effluent to the aquifer in the Directive is mainly intended to guard against possible site-specific scenarios where a disposal procedure may involve storage or disposal r
'of waste at locat'ons anece t ere are <c :e;e::'cq
-c..no 3nce mom t r og Wells to-detect contaminant see? ace o# 3 5:e': 3 '" :"To : 1ance aitn s te-spec t f-tc ground water. protection standards.
Examoles incluce proceoures involving waste disposal or storage 3: 5 :e: -mat aca loca:+ : .el: ear af rne po:nt of compliance at mill:tallings sites or too 'ar from campliance monitoring wells at ISL facilities.
3.4-Modifications to Directive Consistent witn the above-stated staff positions, relevant parts in tne Directive will'be modified. to: (1) identify' the applicable regulations that l
.must be met _for disposal'of liquid waste from uranium recovery facilities: (2) explain relevance of chemical toxicity of radioactive constituents to projected exposures and health risks: and (3) explain why effluent return to the aquifer needs to be covered.
P: P -es:..-:es. :d 9
UPA (2.3)
'4.?- Sumary of Comens acc.u.cs R3 r sx
.The commenters. raised one issue that was included by itself in this category by.the staf f, namely the applicability of NPDES provisions to ef fluent release
.in surface waters'.
Acolicability of NPDES Provis1,gns: All commenters (AMC. KUC. PRI. and UPA)
. addressed the applicability of the NPDES standards in 40 CFR Part 440. Subpart C. to effluent release into surface waters.
AMC and UPA pointed out that the standards for radioactive constituents in 10 CFR Part 20 are not consistent with the NPDES standards. and indicated tnat the latter are the most applicable standards to effluent disposal at uranium recovery facilities, pursuant to 40 CFR Part 192 and Criterlon 8. Appendix A to 10 CFR Part 40.
AMC commented that neither the Directive nor the provisions of 10 CFR Part 20 should supersede the existing limits in 40 CFR Part 192.
.KUC correctly recognized that the NPDES standards establish a 2 ppm uranium limit for discharges into surface waters from uranium mines only, and does not But
. establish a uranium limit.for (none-mine) discharges from ISL facilities.
KUC has indicated that it believed that the NPDES standard for uranium should be adequate for all effluent discharges regardless of source (all uranium recovery facilities. including ISL facilities).
PRI indicated that the Directive should describe both NPDES requirements for source discharge as well as the 10 CFR Part 20 requirements.
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-a 3 Staff Response to Corem The Federal aater Poilu:::n Cer: T %: a'd :-e F E5 rermit system co not cover. source. Dyproduct and spec'ai 'mC: ear mater'ai requiatec under the NRC does hot regulate conventiona;' uranium minar.g. but it Atomic. Energy Act.
does regulate milling and ISL extraction.
' Staff notes that there is a distinction in 40 CFR Part 440 Subpart C between
" process wastewater" and "mine wastewater" with respect to ISL methocs (see 40
" Process wastewater" includes CFR Part 440. Subpart L. and 47 F_R 54604).
production bleed or ground water extracted from the aquifer during the uranium
. recovery operation. and: liquid waste generated at the main uranium recovery plant.
"Mine wastewater" includes post-operation ground water sweep, or ground water extracted to restore grouno-water quality in the recoverv zone after a-uranium. recovery operation is stopped.
The NPDES staridards in 40 CFR Part 440 Subpart C establish technology-based limits on the Concentrations of radioactive and non-radioactive constituents released into surface waters. Tre regulation in 40 CFR 440 33(a) establishes a uranium limit of 2 mg/l for discnarges into surface waters from mines applying i
At ISL the best available technoloav economically acnievable (BAT).
fac111tles. this limit may only-De applieo to "mine wastewater" extracted to-restore ground. vater coa' :. "i tne recoverj zone after a uranium recovery operation is stopped; trere is no BAT limit for " process wastewater" from ISL
, facilities.
The regulation in 40 CFR 440.32(b) establishes best practicable control.
technology available (BPT) limits for uranium milling. including " process wastewater" from ISL extraction facilities. but it provides no standard for uranium.
Therefore, as KUC has correctly commented. the 2 mg/l limit for uranium in 40 CFR 440 is applicable to mines (and "mine wastewater" from ISL facilities),
but it is not applicable to " process water" discharges from ISL facilities.
Accordingly,'thelimitsforuraniumponcentrationsin.effluentsallowedby10 CFR Part 20 regulations'(1.e.
3x10~ micro curies per milliliter'or 0.44 mg/1) must be met for discharges from mills and " process wastewater" from ISL however. as notea in the STP. limiting uranium concentration to facilities:
this standard is only one of several alternative methods for demonstrating compliance with the requirements of 10 CFR Part 20.
4.4 ModTfications to Directive The STP will note that effluent discharges into surface waters meet the NPDES
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standards in 40 CFR Part 440 Subpart C for non-radioactive constituents, but that compliance with the requirements of 10 CFR Part 20 must demonstrated.
as an appendix to the STP.
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- 5. Appl.icability of EPA's UIC Program Regulations 5.1 Ccementers AMC(6) j Power resources. Irc. (8)
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5.2 Sunmary of Conments ana !ssues Raised The commenters raised one issue that was included in this category by the AMC staff. namely the applicability of EPA's UIC Program provisions.
indicated that deep well injection is not authorized at uranium recovery facilities without a UIC permit by the EPA or an EPA Agreement State, and that j
the Directive merely repeats unnecessarily existing requirements by other regulatory agencies and programs.
PRI indicated that discussion related to deep-well injection proposals should include a description of the UIC program -ecuirements.
5.3 Std f Response to Correm:
f proposals for deep-well Staff agrees that pursuant to 10 CFR S20.2007 injection at specific sites must meet the criteria and standards in the UIC
-program in 40 CFR Part 146, along with any other state and local government However. this requirement is in addition to not a substitute requirements.
for, the requirements in NRC regulations, which must also be satisfled, 5.4 Modtfications to Directive The UIC program will be referenced ar.d the need for applicants to satisfy the criteria and standards of this EPA program will be explicitly stated in the STP.
6.
Formal Public Comment on Policy and Guidance Directive 6.1 Cwmenters AMC(1) 6.2 Swmary of Cartments and Issues Raised The commenter raised one issue that was included in this category by the staff namely the need to request formal public comments on the Dir before it is adopted.
It pointed out that the oublic comments on the Directive was not apparent.
i Jirective raises a host of important and difficult issues for uranium recovery
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AMC stated that dithough staff technical positions licensees and NRC staff.
i and regulatory guides. including the Directive, are not enforceable regulatory r o
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requirements.
- rey are used 3:. l'cers"e5 v': ';' m" :: g e"e *" : star "a
points f or prepar at ;n ena re a e,.
..:. e tnat tne Directive snould be made a.aliacie '
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6.3 Staff Pesocnse to Coarents Staff will formally announce tr.e a 3;:ao1' ". of *ne 5TP n the Toderal Realster.
6.4 Modifications to 0 rective The Policy and Guideice Directive has Deen revised to direct staff to use the STP for review and evaluation of proposals for disposal of 11guld waste at 11c6a:ed prar.1um recovery facilities.
LH 01/27/95 4 'r
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'd Staff Technical Position on Effluent Disposal at Licensed Uranium Recovery Facilities l
Division of Waste Management U. S. Nuclear Regulatory Commission April, 1995 i
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TTACHMENT DPVR E- 0
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cREVISION0 4
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May 25, 1995 MEMORANDUM TO:
Those on Attached List FROM:
Joseph J. Holonich, Chief High Level Waste and Uranium Recovery
,J' Projacts. Branch, DWM
SUBJECT:
URAN!UM RECOVERY PROGRAM POLICY AND GUIDANCE DIRI SYSTEM OIRECTIVE DWM 95 01 1
The Uranium Recovery Program Policy and Guidance Directive System Directive System) provides guidance on the uranium recovery program (UR Regulatory Commission staff and management.
to Nuclear incorporate ne.w guidance or revised guidance. Directives are added to The Staff Technical Position,
" Effluent Disposal at Licensed Ura~nium Recovery Facilities" was promulgate March 1995.
Staff Technical Position,UR Directive OWM 95 01, which provides guidance on the u is attached.
Directive-System," LLWM-3, Additionally, revised pages of UR Directives L
" Subject and Guidance Directives" are attached.Index," and LLWM 4, " Description of Policy Directive System and would like one, please see Mike Fliegel in 7E-57If you doj Attachments:
~As stated
Contact:
Myron Fliegel 415-6629 i
OISTRIBUTION: w/Attch.
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URANIUM RECOVERY PROGRAM POLICY AND GUIDANCE DIRECTIVE DWM 95-01 i
STAFF TECHNICAL POSITION ON EFFLUENT DISPOSAL AT LICENSED URANIUM RECOVERY FACILITIES l
April 1995 i
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NUCLEAR REGULATORY COMMISSION Uranium l Recovery Facilities: Availability of Staff Technical Position on Effluent Disposal at Licensed Uranium Recovery Facilities AGENCY: Nuclear Regulatory Commission.
ACTION: Notice of Availability.
SUMMARY
The Nuclear. Regulatory Commission is announcing the availability of " Staff Technical Position on Effirent Disposal at Licensed Uranium Recovery facil'ities." This Staff'Techni' cal Position (STP) is a NRC staff' guidance document that provides guidance and discusses the technical and regulatory basis for review and evaluation of proposals for disposal of liquid waste at licensed uranium recovery facilities, including conventional mills and in situ leach facilities, The STP is primarily intended to guide NRC staff reviews of site-specific proposals for disposal of liquid waste, but it can also be used by licensees and applicants for preparation of such proposals.
ADDRESSES: Copies of the STP on effluent disposal at licensed ur.anium
. recovery facilities may be requested by writing to: Dr. John H. Austin, Chief, Performance Assessment and Hydrology Branch, Division of Waste
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Management, Office of' Nuclear Material Safety,and Safeguards, Mailstcp
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7-0-13 TWFN, U.S Nuclear _ Regulatory Commission, Washington DC 20555. or by
- calling.(301) 415-7252.
- I FOR FURTHER INFORMATION CONTACT: Dr.'Latif S. Hamdan, Performance Assessment and' Hydrology Branch, Division of Waste Management, Office of Nuclear Material Safety and Safeguards, Mailstop 7-0-13 TWFN, U.S., huclear_
Regulatory Commission, Washington DC 20555. Telephone:
(301) 415-6639.
SUPPLEMENTARY.INFORMAT10N: Persons interested in commenting on the STP on effluent disposal at licensed uranium recovery facilities may provide written consnents -to Chief, Performance Assessment and Hydrology Branch, Mail Stop TWFN.7-D-13, Olvision of Waste Management, Office of Nuclear Material. Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Comments received will be considered in any future
- revisions of the STP. There' is no date set for expiration of the comment period.
Dated at Rockville, Maryland, this /f day of M e. 1995.
V FOR THE NUCLEAR REGULATORY COMMISSION f/b Y John H. Austin,. Chief Performance Assessment and Hydrology Branch Division of Waste Management Office of Nuclear Material Safety and Safeguards' l'
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October l' 1905 '
Mr. John H. Austin. Chief l
Performance Assessment and Hydtclogy Bran,-h.
MS TWEN 7-D-13 Division of Waste Management Office of Nuclear Material Safety and Safeguards U.S. Nuclear Regulatonj Commission Washington, D C. 20555
Dear Mr. Austin:
Power Resources, Inc (PRI) operates the Highland Uranium Project located in Converse
' County, Wyoming which produces approximately 1,000.000 pounds per year of uranium by the in situ leach method of extraction PRI has reviewed the StatTTechnical Position (OWM 95-01) titled "Eriluent Di.posal at Ltcen<ed Uranium Recos erv Facihties~ dated April,1995 PRI belies es the document contains ugnificant flaws and inconsistencies that should be addressed by NRC pner to the nest re o a!aat;en schei.:eJ fer December 1996 Attached please fmd PRI's comments en the <ubieet STP PRI appreciates the opponunity to comment on this document and prosiJe mput into its deselopment Please feel free to call should you or your statT have any questions Sincerely, af.){ /..7'
/-
Paul R. Hildenbrand Manager, Environmental and Regulatory Affairs PRH:dee Attachment xc:
P.G. Cooper S.P. Morzenti L.C. McGonagle W.F. Kearney JJ. Holonich, Chief HLUR, NRC K. Sweeney, NMA A. Thompson, Shaw, Pittman, Potts & Trowbridge ATTACHMENT m ~!R E-12 M Loomis, WMA
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POWER RESOURCES. INC CONIN!ENTS ON TIIE NUCLEAR REGL'LATORY CO. fN11SSION'S
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STAFF TECilNICAL POSITION ON EFFLUENT DISPOSAL AT LICENSED URAN! uni RECO\\ ERY FACILITIES OCTOBER 17,1995 l
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'BACKGROlND l-The STP states that reverse osmous tRO reject brme is a iiquid waste from the processing ofyellowcake This is not true RO is used during ground water restoration as a tool to assist in returning the affected ground water to its pre-mining condition The RO reject brine is a waste connected with ground water restoration rather than yellowcake processing 2.
The STP states that evaporation is used tbr management ofliquid wastes at licensed uranium mills and tailings disposal sites. This is not true. Liquid wastes from conventional mills are sent to the tailings disposal facility along with the solid wastes. The only time evaporation may be used is during decommissioning when ground water from under the tailings disposal site may be pumped to evaporation ponds as pan of a Corrective Action Plan to mitigate a ground water conteminant plume.
3.
The STP states that management ofliquid wastes at ISL sites includes release to surface waters This is generally only true for ground water restoration fluids as the EPA NPDES regulations prohibit surface discharge of process waste water from ISL facilities However.
PRI believes that the in situ minine fluids are indeed mine water, not process waste water, and shou!J be eligible tbr NPDES surfac. discharge This opinion is apparently inconsistent with EPA's interpretation. which considers the mining fluids to be process fluids.
APPLICABLE RULES AND REGULATIONS 1.
- The first pan of this section (page 2) states that disposal ofliquid waste must comply with 10 CFR 40, Appendix A requirements _incivding the closure (decommissioning) requirements of Criterion 6 The last paragraph of thb section (page 3) states that, in addition, licensees will also be required to comply with hRC regulatory provisions for decommissioning and closure and references the proposed.ule at 10 CFR 20.1401 through 20.1405. These two statements are contradictog since the unrestricted release criteria for soil radium i
concentration in Criterion 6 of 10 CFR 40, Appendix A is 5/15 pCi/ gram while the proposed criteria in 10 CFR 201404 has a 15 mrem / year TEDE requirement which, for radium, is equivalent to 0.1 pCUgram The language of the STP indicates that Licensees will have to meet both criteria which is impossible to accomplish Additional clarification should be provided j
i 2.
Proposed 10 CFR 201401 states that as applied to uranium mills, the proposed 4
decommissioning criteria would apply only to decommissioning of the facility and not to the disposal of tailings or soil cleanup which is to be performed in accordance with 10 CFR 40, Appendix A. Historically, the NRC has required ISL's to comply with the Annendix A
{
requirements for soil cleanup. Does the term " uranium mills" of the proposed 10 CFR
~20.1401 include ISL facilities in this sense as it does in Appendix A of Part 40?
2-9
4 OLSITE EVAPORATION i
I i
This section appears to confuse tamngs eco, n.:n es ipura.un onJ3 I ne requirements or c
10 CFR 40. Appendix A apply to impoundments tha' a.e Je.cned to dispose of fiquid and solid wastes resulting from uranium or thorium muhng operations, or mill tailings l
Evaporation ponds are designed to contam ground water or other liquid emuents with j
relatively small quantities of suspended and dissolved solids Therefore, the design criteria
- in Appendix A are not appropriate for evaporation ponds _
2 This section also states that evaporation ponds must compiv wit _h the closuoutandards of.
Criterion 6 in 10 CFR 40. Aroendix A Criterion 6 specifies that the waste disposal area must Selosed by placing an earthen cover over the waste material (ie., buried in place)
Historically, the NRC has required that evaporation ponds be er.cavated and disposed at a tailings facility or other disposal facility licensed by the NRC to accept by-product material.
Does the language in the STP represent a t hinge of NRC policy regarding decommissioning of evaporation ponds' RELE ASE IN SERF ACE WATERS 1.
This section states that in addition to meenng the EPA eMuent release limitations for surface discharge of waste water, licensees must now also show compliance with the 100 mrenvyr l
dose limit of 10 Cl R 201301 and N :001 This represents dual regulation and is i
unnecessary Since the EPA requirements set maximum limits for unrestricted surface release of certain radionuclides and other elements, these limits should represent an adequate margin of safety to the public and the en ironment in fact, NRC and EPA concluded in both the 40 CFR 440 miemaking and NRC's confirming rulemaking that the NPDES emuent limits provide adequate protection and are applicable to uranium source material licensees.
Therefore, PRI contends that the existing 10 CFR 40 and 40 CFR 192 relt.ase limits should not be superseded by 10 CFR 20 or any on.cr release limits that may be inferred in the STP l
I 2.
This section of the STP, as well as the Appendix, defines two separate waste streams related to ISL facilities These are " Process Waste Water" and "Mine Waste Water" The a fP states that 40 CFR 440 makes a distinction between these two waste streams. " Process Waste
)
Water" is defined in 40 CFR 401.11 The term "Mine Waste Water" is not defined nor addressed anywhere in the NPDES regulations EPA does use the term "Mine Drainage" f
which apparently NRC is equating with their term "Mine Waste Water" However, EPA's j
J definition does not restrict Mine Drainage to only waste water after production has ceased.
Mine drainage is defined in 40 CFR 40.132 as "any water drained, pumped or siphoned from a mine" NRC's terminology and definitions differ significantly from EPA's and are more restrictive in nature. It is requestec that NRC utilize existing NPDES terminnlogy in this l
sectio'n~Ather than developing new terms and definitions and applying th:
to existing criteria.
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' 'O detinition. includes u.
3 The STP states' hat mine waste ner or r n "
- M This k because by
- ground water restoration bleed a not rep..te ' -
. t an>utute oppro iuet NRC defmition (10 CFR 40 4), depletea 181 ac.
material PRI agrees with this interpretanon and now ! '.e o
. 3tep further The bleed
. water extracted and disposed of duri'ng the ISL estraction preresa.,hould also be considered mine waste water or mine drainage as it is no ditierent than thu water extracted from a conventional underuround or onen pit mine to allow access _to t_he r_re (ie, mine dev.atering)
ISL bleed actually dewaters the ore oody to the poir.t that alle.vs more etUcient use and control of the mining fluids Therefore, the ISL bleed taken di ring production is actually mine drainage or mine waste water rather than process waste watt r which is generated during the processing of the uranium into yellowcake.
The statement in the STP that ISL ground water restoration flaids are essentially not I le-(2) 4 by-product material presents a curious dilemma for both industry and the Agency. If the
~
fluids are not 11e-(2) material, then t ie solid wastes created by the treatment of the water i
prior to disposal are not Ile (2) material Does NRC consider these solid wastes as NORN!
If this is the case. it should be allowaHe to dispose 01 these wastes on site as is allowed at conventional uranium mine sites The situation is further complicated by the recent guidance on disposal of nen -\\E A regulated material published in the Federal Register on September 22.1995 This cuidance document states that non regulated material should not be disposed in an lie (2) bv-product material impoundment Again this represents confheting and
]
inconsistent regulatory action that needs to be addressed by NRC with input from mdustry The STP allows the commingling of process and mine waste water with the ultimate surface 5.
discharge of the commingled stream as long as certain regulatory compliance actions are i
satisfied Since process waste water, as defined by NPDES regulations, cannot be surface discharged _ by ISL operations, this action appears to be inconsistent with current EPA NPDES requirements. Does NRC consider the commingled stream to be mine waste water' Would surtace discharge of a commingled stream be allowable by EPA under NPDES regulations' NRC needs to address this apparent inconsistency.
The STP states that surface discharge activities need to comply with the decommissioning 6.
provisions of 10 CFR 40, Appendix A and the proposed radiological criteria for decommissioning PRI does not agree that any decommissioning should be necessary. The discharge limits, as stated by both NRC and EPA, provide an adequate margin of safety The~refore, those lands alTected by the permitted surface the.public and environment.
discharge should not have additional clean up requirements imposed upon them as i effluent release limits of 40 CFR 440 are met.
LAND APPLICATION The STP states that decommissioning ofland application facilities must comply with NRC 1.
provisions for decommissioning which presumably means the 15 mrem /yr TED 4
s' ar As discussed abote. the decommissioning standard referenced at tb be. ' n r l_5 mrent'yr TEDE is equivalent ta 01 pCi 4 Ra. :
A.s.
and in soil PRI believes hcrage background soil that this is an unrealistic standard that will be impssibk n
- .e radium concentrations for the United State,is approum.ne:. ' ri.. gram Additionally, the analytical error at these low concentrations can be greater than i pCiJg To illustrate these points, following are baseline average Ra-::6 soil concemrations at PRI's liighland Uranium Project Satellite No I Land Application Facility cornpared with 1994 data from the same area after six years of continuous use Baseline Soil Ra-226 Concentrations at Satellite #1 Land Application Facili.ty 0" - 6" 1.4 pCi/g
- 0.I pCi/g 6" - 12" 1.3 pCi/g
- 0. I pCi/g 19o4 Say!!ite al Land Applicafion Facility Soil Ra 226 Concentration.s J
0" - 6",
I 5 pri g : 0 : pCi g 6" - 12" 14 pCi g : 0 2 pCi g As can be seen from the data, the analvtical error at these extremely low concentrations tends to be greater than the proposed standard and is insignificant and indistinguishable from natural backgrot...d concentrations PRI is concerned that imposition of such an unrealistically low decommissioning standard for ISL land application facilities is not justifiable from a risk!
benefit standpoint, will not provide an additional margin of safety to the environment or public health and safety, and will be impossible to meet with present technology. Existing decommissioning requirements (10 CFR 40, Appendix A) provide an adequate ma'rgin of safety and do not need to be superseded by more stringent and prescriptive limits that have no technical basis.
DEEP WELL INJECTION 1.
The STP states that applications satisfying EPA UIC requirements will generally be approved by NRC. Then the document goes on to prescribe what an applicant needs to provide NRC for approval. If an application meets CIC requirements and is approved by EPA or a State having authority over the UIC program, specific approval from and regulation by NRC should not b.e required.. This results in dual regulation which PRI understood was something NRC was trying to avoid. At the very least, an MOU between the NRC and EPA could address any NRC concerns about deep disposal and avoid duplicative regulation.
2.
The STP states that decommissioning of deep well disposal facilities must comply with NR_C regulatory provisions for decommissioning. PRIis not aware of any regulatory provisions for decommissiomag deep disposal wells in 10 CFR 20,'40 or the proposed 10 CFR 1401 through 1405. PRI requests that NRC provide clarification of this ooint. It should be noted 5-
+..:
that the L'IC regulations proside decomm,.-
these t> pes ofiieihties.
marg:n of safety to the incl 6 ding plugging of the well which prom
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tg anJ ethenu3e unusable ensironment and pubhe Bs empeacutg tne,
' rem the ensiror. ment and aquifer, deep u ell injection errectis ely remm e he u 34:
the public rendering any decomnus3:ening inferred tr,, the STi,.mpletely meaningless
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U.S. N,UCLEAR REGULATORY COMMISSION NATIONAL MINING ASSOCIATION fc,Y 0Uf 4
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e U.S. Nuclear Regulatory Commission Staff Response to Concerns Raised by the National Mining Association
1.0 INTRODUCTION
On May 12.. 1997, representatives from tne uranium recovery industry briefed the Nuclear Regulatory Commission-Besides providing information.on the different industry organizations and types of uranium recovery facilities. the presentation also discussed four areas of the staff's~ uranium recovery program where industry believed there were inconsistencies among several different NRC policy positions and staff guidance documents.
Because of this perception.
the industry believed Commission attention was required.
In addition, the industry had raised with the staff a fifth 1ssue.
The five issues are as follows:
1)-
NRC jurisdiction over the wellfields 'at in situ leach facilities (ISLs):
- 2) _
the concern that some evaDoration pond sludge from ISLs would not be considered 11e..(2) byproduct material given the definitions for process anc mine water in the staff's effluent discharge guidance document:
3) a conflict between the e# fluent discharge guidance document and the staff guidance on disposal of material other than 11e.(2) byproduct material in uranium mill tallings impoundments:
4) concurrent jurisdiction over the nonradiological components' of lle.(2) byproduct material by. the NRC and the states:' and l
5) a conflict between the r. ole of states in the different NRC guidance.
.All of the concerns raised by the industry briefing are not new to the staff.
I These concerns had been prevlously raised by-industry in a number of different forums including bimonthly meetings held between the_NRC and the National Mining Association (NMA). the NRC/NMA sponsored workshops, and a paper presented at the Nuclear Energy Institute Fuel Cycle 97.
Essentially the industry believes that the five areas of concern discussed above result in inconsistencies in the.NRC staff regulation of uranium recovery facilities.
This paper discusses the concerns' raised by the industry, and provides the NRC staff perspective.
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'2;0 STAFF RESPONSE TO CONCERNS 2.1 Jurisdiction Over ISL Wellfields (Item 1)
This issue: arises from two different -interpretation of what authorities the
. Uranium Mill Tailings' Radiation Control Act of 1978 as amended (UMTRCA) provides. NRC.with respect to the ground. vater aspects of ISL operations.
In a
industry's view. NRC should not: exercise jurisdiction over the groundwater pr' tection' aspects of ISL wellfield operations.
The industry position is o
based on: 1) the fact that the ore at that point-in the process is still
. underground, and therefore has not been removed.from its place in nature:
2)sthe concentration of uranium is below 0.05%: and 3) the ore body is not defined as' 11e.(2) byproduct material.in 10 CFR Part 40.
In addition, industry raises the concern that tne Environmental Protection Agency (EPA) or
. individual EPA permitting States have jurisdiction over the groundwater aspects of ISL operation.
Therefore. for the above reasons. Industry believes that NRC does not nave the legal authority to regulate the groundwater aspects of ISL operations and that tne current NRC position results in the dual regulation of these wellfields.
The basis for the NRC regulation of ISL wellfields is docurilented in an April 28, 1980. 'As noted in-that memorandum, the NRC authority for' regulating the groundwater aspects of ISL operations is-based on the long-exercised jurisdiction established under the AEA for NRC regulation of the production of uranium.
In addition. the NRC regulatory authority provided in the AEA is reinforced by UMTRCA and the Nat_ional Environmental Protection Act of 1969 (NEPA).
The Congressional record on the enactment of UMTRCA establishes a clear legislative record that Congress intended NRC to regulate all aspects of ISL
. operation.. Discussions held between Senator Wallop and Senator Hart indicate that the regulatory program established under UMTRCA would apply to all aspects of ISL: operation including groundwater.
The House committee report stated that NRC should exercise similar controls for ISL groundwater
- protection'as those 1mposed~by EPA; NRC responsibilities.under NEPA further fortify the Commission's ability to exercise the power it unquestionably has over the groundwater aspects of ISL operation.
Under' NEPA, the Commission is to minimize. to the extent practical, the adverse impacts from ISL operations.
In addition, judicial decisions obligate NRC to minimize environmental impacts from NRC licensed activities.
Based on the legislative requirements established by Congress under/ EPA and judicial decisions reaffirming the Congressional intent. NRC
- v..
s 3
clearly has the responsiollity under NEPA t:. ensure Inat environmental impacts from all astects of ISL operaticr. Mciu r ; grouncaater. are minimized.
Finally, the 1caustry position that the ore oody is not lle.(2) Dyproduct material is a hollow argument.
Under the cefinition of lle.(2) byproduct material i UMTRCA. the ore bocy would De covered, and therefore, the depleted ore bodies would be transferred to.a long-term custodian.
However. Congress also gave the Commission the ' discretion of not requiring transfer of 11e.(2) byproduct material to a long-term custodian.
For the depleted ~ ore body that
. remains underground. the. Commission decided to exercise this discretion, and-
.not include the ore body in the definition of ;1e.(2) byproduct material in 10 CFR Part 40.
Exercising this discretion makes sense since the ore body remains underground. and does not need the long-term monitoring that large tailings impoundments require.
In addition. Ine definition eliminates the need for ISL licensees to establish and make the long-term care payment which is currently at approximately $560.000.
In summary. the potential contamination of grounawater from ISL operation is clearly within the NRC scope under the'AEA.: and the NRC regulatory authority is further fort 1 fled througn UMTRCA anc NEPA.
2.'2 ISL Evaporation Pon'd Sludge Classification and Conflict With Guidance on
- Disposal of Material (Items 2 and 3)
The~ genesis of these issues is in the definition of process and mirie water contained in the staff guidance document entitled " Staff Technical Position on Effluent' Disposal. at Licensed Uranium Recovery Facilities." The guidance was developed as.a document to provide options to ISL and conventional mill licensees for the disposal of process and restoration water from ISL
~
operations, and for the disposal'of groundwater pumped as part of corrective action programs at uranium mills.
In the draft guidance the staff took the position that any water'from~1SL operations that was discharged to surface water was subject to the effluent discharge standards in 10 CFR Part 20.
Appendix B (Appendix B).
Because the water generated at ISLs comes from two distinct. sources. the industry commented that the draft staff guidance would not allow "mine water" to be discharged under the less stringent requirements of 40 CFR Part 440.
To address this concern. the final guidance differentiated between process bleed and mine water.
In'the final guidance. process bleed is defined as the groundwater extracted from the aquifer during uranium recovery operat. ions.
Because this water is directly related to the extraction of uranium and thus under NRC jurisdiction, the effluent discharge requirements in Appendix B are-J i
I a
applied.
Water from wellfield restoration was oefined as mine water because this water was not directly related to tre uranium extraction process.
The discharge of mine water from impourcments to surface oater 1s.not regulated Dy NRC. but is subject to the discharge limits of 40 CFR Dart 440.
The staf.f believed these interpretations would accress tne industry concerns on the draft guidance.
The approach outlined in tne final guicance provided industry with operational flexibility by not applying the Appendix 8 effluent discharge limits to water produced at stages in the ISL process wnere uranium is not being recovered.
Independent of the effluent discharge guidance. the staff had also 1ssued guidance on the disposal of AEA regulated.naterial other than 11e.(2) byproduct material in tailings impoundments (hereafter the disposal guidance).
After consultation with the Commission on the final disposal guidance, the gudlance was published in the Federal Rea1 ster on September 22. 1995.
Essentially, the final guidance lays out 10 criteria that licensees should meet before the NRC would authorize the disposa' of AEA material other than 11e.(2) byprocuct material in tallings imoounamsnts.
One of these criteria is the exclusion of radioactive material not covered by the AEA.
Regulation of radioactive material not coverec by the AEA would be tne responsibility of individual States. Tnerefore. tne staf# included this criterion because it wanted to avoid a's tuation where States could also be setting standards for the disposal of radioactive material in tallings impounaments.
Industry raised the current concerns based on its review of the two guidance documents.
The industry position is that using the definitions of process bleed and mine water in the effluent guidance document, the resulting sludges left in the evaporation ponds at ISL facilities are legally different.
At most ISL facilities, operators will use a single evaporation pond for the storage of both process bleed and mine water. Once the ponds are decommissioned, the ISL operator must dispose of the remaining sludge.
Although the sludges created from either process bleed or mine water are chemically, physically, and radiologically the same. the industry contends that the source of origin makes them legally different.
Industry views one part of the sludge as lle.(2) byproduct material since it is the res1 cue remaining from the evaporation of process bleed water.
On the i
other hand. industry views the sludge remaining from groundwater restoration activities as naturally occurring radioactive material since that residue comes from mine water. which was not part of the uranium extraction process.
When these interpretations are coupled with the NRC disposal guidance that excludes radioactive material not covered by the AEA from disposal in mill tallings impoundments. the industry is concerned that there is no disposal
't
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. option-for the sludges from ISL evaporation ponds wnere process bleed and mine water'.have been mixed.
The NRC staff has told.the industry tnat it would view all sludges remaining
- in the evaporation ponds as 11e.(2) byoroduct. material 1f the ponds contained predominantly process water during their life.
Essentially. the staff believes _ it makes no. sense to view the sludge from the same pond differently.
This position has been explained to the incustry, and the NRC staff has noted that mill operators with authority to take ISL 11e.(2) byproduct material would not need to get special amendments to take the sludge remaining at 15L evaporati.on ponds.
The staff notes that the resolution of this issue rests with the industry.
At least one operator has separate ponds for process and wellfield restoration water.
This approach elimi. nates the need to address the
. discharge of process and mine water from tne same pond under different discharge limits.
Plus the approach clearly keeps the sludges apart. and allows the operator to dispose of the residue from the mine water pond under appropriate State requirements for mine waste.
The other approach open to industry is to 1molement the staff's common-sense approach for disposal of all sludges coming from ponds whicn predom1rantly contained process water by recognizing that all of tne sludges from a " mixed" poind can be viewed as 11e.(2) byproduct material.
In conclusion. the staff coes not believe any action is warranted on NRC's part.
Uranium recovery licensees have available to them two very reasonable and effective ways of addressing the problem that industry has created.
2.3' Concurrent Jurisdiction (Item 4)
The NRC position that individual States have the authority to regulate
.nonradiological aspects of 11e.(2) byproduct material comes from the authority given the NRC in UMTRCA. Under the AEA. the NRC was giv.en the responsibility for regulating the commercial use of nuclear material. This authority was clearly preemptive. and as such, there is no question that NRC has sole authority, notwithstanding the Agreement. State program, over the material specified.in the AEA.
UMTRCA. on the other hand has two unique aspects to it that preclude preemptive regulation of 11e.(2) byproduct material.
First.
'unlike the AEA which only deals with. radiological matters. UMTRCA requires NRC to regulate both the radiological and nonradiological aspects of 11e.(2) byproduct material management.
Second. Congress did not provide for sole NRC jurisdiction over 11e.(2) byproduct material whenever it enacted UMTRCA.
. Because protection of public health and safety for nonradiological matters is routinely the responsibilities of the States, the NRC responsibility for nonradi logical aspects'of 11e.(2) byproduct material established by UMTRCA'
R. RESOURCES
""'""'5" B00 Wemer u POWER 5""* " 2
.: net 51 8:601 L.uper. %3 let 30 472 20M fn 30'.:3J. : l J 7 December 1.1997 Chief, Rules and Directives U.S. Nuclear Regulatory Commission.
Washington, D.C.
20555
Dear Sir or Madam:
Subject:
Comments On The Draft Standard Review Plan ForIn Situ Uranium Extr Applications. NUREG-1569 Please Snd attached Power Resources Inc.. (PRI) comments on t Uranium Extraction License Applications. PRI is a major ISL uranium producer, one million pounds L'sO per year for domestic and foreign electrical utilities.
We are disappointed that a ninety day extension of the review period was not gran Wittrup, i 1/20/97) as this prevented meaningful intra-input. The document incorporates none of the previous input from the indust d his time.
this document finalized, we feel doubtful that any of our comments will be addresse t As an in situ uranium producer, we cannot stress enough the importance of an d
This SRP has review of this document with input from state and federal agencies. and the ISL in ustry.
fitability and the potential to significantly impact our future expansion plans. and possibly our pro viability, if carried forward without the necessary review and input.
Sin rely, j
/
/
Mark /Wittrup. MSc.. P.Eng.
Director. Environment and Safety M. Loomis. WMA M. Chalmers cc:
K, Sweenev. NMA P. Hildenbrand W. Kearney g
g O'3,"lcl3RR p@
% w rc y.
Recommendations for a Coordinated Approach to Regulating the Uranium Recovery industry:
A White Paper Presented By National Mining Association Foundation For America's Future Prepared by Anthony J. Thompson j
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Katie Sweeney pau G e
Associate General Counsel David H. Kim national Mining Association Shaw Pittman Potts &Trowbridge nM ATTACHMENT DPVR E-5
EXECUTIVE
SUMMARY
i List of Acronyms........
ix I. INTRODUCTION.................................................
1 A. Purpose of the White Peper.............
2 B. Historical Development of the Uranium Recovery Industry and its Regulation 3
- 1. The Early Days of Uranium Production and Regulation 4
- 2. The Creation of a Regulatory Program For Uranium Mill Tailings..........
17
- 3. The Maturation ofNRC's Regulatory Program and the Decline of an Industry..............................................
21
- 4. The Current Situation.........................
31 II. JURISDICTION OF NON-AGREEMENT STATES OVER NON-RADIOLOGICAL COMPONENTS OF ATOMIC ENERGY ACT 11E BYPRODUCT MATERIAL........
37 A. OELD's 1980 Analysis.
........................... 42
- 1. Focus of UMTRCA on Radiological Hazards.....
.................. 43
- 2. Definition of Ile.(2) Byproduct Material
. 46
- 3. Authority ofNon Agreement States to Assume Custody Over 11e.(2)
Material....
................. 48
- 4. Section 275 of AEA............
................................ 49 B. Preemption Doctrine..............
52
- 1. Traditional Preemption Analysis Under the AEA.........................
54
- 2. Preemption Analysis in the Area of 11e.(2) Byproduct Material.............. 60
- 3. Inadequacy of Preemption Analysis in the Area of 11e.(2) Byproduct M aterial.......................
65 C. Factors Favoring Preemption.....................
71
- 1. Pervasiveness of the Federal Regulatory Scheme...................... 71
- 2. Conflict Between State and Federal Law...
79 (a) Consistency With the Statutory. Scheme
. 79 (b) Frustration of Congressional Purpose in Enacting UMTRCA 88 D. Recommendations......
96 III. NRC JURISDICTION OVER IN-SITU LEACH FACILITIES.
97 A. Introduction 97
...~.
B. The ISL Mining Technique 99 r
C NRC': 1980 Legal Opinion On ISL Mining is Flawed Because NRC May
. 104 Re.ulate Only Those Matenals Within the Jurisdiction of the AEA 1 Wellfield Materids Do Not Constitute Source Material..
105 (a) Until it Reaches the Surface, the Uranium at an ISL Wellfield Has Not Been " Removed From its Place of Deposit in Nature," and Prior to Elution, the Uranium Ore Remains Unprocessed...
107 (b) The 0.05 %. Exemption I13 s
2 Byproduct Material...
117
- 3. NEPA Provides No Supplemental Jurisdiction 120
- 4. EPA Already Regulates the Underground Activities at ISL Wellfields.......
125 D. NRC's Liquid Efiluent Guidance
. 126
- 1. Effluent at ISL Facilities...................
126
- 2. NRC's Requirements for Efiluent Disposal..
. 127 L. Recommendations.....
131 IV. DISPOSAL OF NON-1lE.(2) BYPRODUCT MATERIAL IN TAILINGS IMPOUNDMENTS 133 A. Introduction.......
133 B.1995 Final Guidance 135 C. Recommendations...
140 V. NRC's ALTERNATE FEED POLICY.....
148 A. Introduction...........
148 B. NRC Poli cy..................................................
149 C. Recommendations 152 unceucocioci i
9
]
L III.
NRC JURISDICTION OVER IN-SITU LEACH FACILITIES At the same time NRC drafted its advisory opinion dechning to assert Federal preempti:n over the potential non radiological hazards of mill tailings, the Commission's lecal staff asserted that NRC did havejurisdiction over the subsurface aspects ofISL mining (i.e., ISL wellfields).2 Like the legal staffs position on concurrent jurisdiction, the 1980 advisory opinion on ISL mining fails to consider fully the jurisdictional importance of the AEA definitions oflicensable materials as interpreted and implemented by NRC itselfin other contexts. As NM
- has explained, these statutory and regulatory defmitions are fundamental to the entire NRC regulatory program as it relates to UR facilities. Accordingly, all staffinterpretations of these definitions must be supportable on a sound legal and regulatory policy basis. However. NRC staffs application of those definitions at ISL wellfields has led to inconsistencies and ontradictions that resonate through the entire UR program. Therefore, the Commission should review its approach to regulating ISL wellfields to determine the potential impact of the current staffinterpretation on ISL facilities and on other NRC activities. Such a review would reveal that asseningjurisdiction over ISL wellfields leads to unnecessary, duplicative regulatory oversight and regulatory inconsistencies and is itselfinconsistent with NRC'sfailure to assert jurisdiction over potential non-radiological hazards described in section II.
A.
Introduction The 1980 ISI' Memorandum claims jurisdiction over both the aboveground and below ground aspects ofISL mining operations. Like the legal opinion addressing concurrent a Memorandum from Howard K. Shapar, Executive Legal Director. NRC. to Chairman Ahearne. NRC re:
GELD Legal Opmion on Two Questions Relatmg to Operation of the Uranium Mill Tailings Radiauon Control Act 1978. Anachment A (Apr. 28.1980)(hereinafter 1980 ISL Memorandum) 97 L
7 jurisdiction,' this memorandum was not subject to public review or public comme
. Moreover, a
the 1980 ISL Memorandum is an analytical about-face fwm a 1979 legal sta addressing NRC jurisdiction over these same types of facilities.H i
In the 1979 ISL 0
Memorandum, the legal staff concluded that UMTRCA "should cover the ma b
wastes from solution extraction that occur above ground (including such was D
re-injected)."E The legal staff then noted that the Act would not require the reg h
- g subterranean ore bodies because those bodies are not wastes. While NMA agre the authority to regulate the discrete surface wastes at these uranium mmmg fac e
authority does not allow NRC to regulate the undergroundportions of an ISL mine.
The fundamental error in the 1980 ISL Memorandum's assertion ofjurisdiction is l
premise that the subsurface component of an ISL facility is not really a "mine," but is m e
i i
the " processing" portion of a conventional UR facility. Compounding this error;- *he c l
reliance upon NEPA as providing " supplemental authority" to regulate ISL wellfields. As section of the White Paper will explain, any assertion of authority over ISL wellfields exceed the jurisdictional limits of the AEA because until the ore reaches the ion exchange (IX perhaps beyond, only mining takesplace, notprocessing. Additionally, the NRC staffs ignores the fact that the mining stream contains less than 0.05% uranium and thus does not constitute licensable source material until it reaches the IX unit (at the earliest). It also ig the fact that this uranium-laden stream is, according to NRC's definition, " unrefined and t
a Mernorandum from Howard K. Shapar. Executive Legal Director, NRC to the Commission r to the Commission Request for Further information Regarding Secy-79-88 " Timing of Certain Requ Uranium Mill Tailings Radiation Control Act of 1978."(May 7,1979)[ hereinafter 1979 ISL Memorand C
/d at 1 (emphasis added).
i t
98 i
i
b unprocessed ore.'l.. Moreover, the Commission's reliance on NEPA, a purely procedural statute, for incremental substantive legal authority at ISL wellfields is misplaced. Finally, there is no practical reason for NRC to regulate the subsurface activities at an ISL wellfield, since EPA (or states with primacy) already regulate the wells including radiological constituents, pursua'nt to the Safe Dnnkmg Water Act (SDWA) underground injection control (UIC) program.
The time is ripe for the Commission to reexamine its approach to ISL mining, with a specific focus on the longstandingjurisdictional definitions and interpretations that have governed the licensing of AEA source material, to develop a logical and credible regulatory f
scheme that will make sense for UR licensees, NRC, and the public.
a B. The ISL Minine Techniaue e
ISL mining has been practiced since the mid-1960s and currently is the primary c
extraction technology for commercial uranium production in the United States. The advantage of ISL mining over conventional mining is that it provides a safe, environmentally-benign, and cost-effective method of recovering low grade uranium deposits that are contained within a t-f minable, confined aquifer system. As the NRC legal staff has noted, ISL mining does not f
6 i
involve crushing or grinding of any ore, nor does it produce mill tailings.E For these and other i
reasons, the " potential for emironmental impacts due to in situ uranium mining appears to be minor."2 Although ISL mining has significantly fewer environmental impacts than 2
1980 ISL Memorandum. Attachment A at 2-3.
{
R.S. Popielak and J. Siegel, Economsc and Environmentalimplications ofLeakage Upon in Suu Uranium i
)
'enmg, Mining Engineering 800,804 ( Aug.1987L Moreover, the low hazard associated with the ISL technique ggests that "[t]he concept of natural ground water quality restoration may have panicular ment in uranium Footnote continued on next page 49
m s
conventional muung, the two extraction methods are conceptually similar. First, after locating a i
uranium ore body, both ISL and conventional operations involve a subsurface investigation to evaluate whether the ore is technically and economically recoverable. If the ore is recoverable, I
then both types of UR activities require removing the uranium from the host rock and bringing it to the surface. Once at the surface, the uranium ore is subjected to beneficiation prior to i
additional processing at upstream fuel cycle facilities.
1 The principal difference between ISL and conventional uranium mining is the means by l
I which the uranium is brought to the surface. Rather than using surface or underground I
excavation techniques, ISL facilities involve the use of subsurface wellfields to bring the uranium to the surface for production.E Each wellfield usually is composed of a number of "five-spot" patterns which involves the installation of two types of wells in the ore zone. For the typical five-spot _ pattem, the mine operator installs four injection wells to inject into the mineralized zone a solution known as lixiviant. This lixiviant typically consists of groundwater l
containing dissolved oxygen and carbon dioxide and has similar physical and chemical i
'charac: eristics to club soda. At the same time, a singleproduction welllocated at the center of
}
the five-spot pattem will draw the lixiviant through the ore body. In each wellSeld these injection and production wells create a circuit that continually injects water into and draws water through the ore zone, oxidizing and dissolving the uranium, to bring it to the surface.
f Footnote continued from previous page leaching. It is believed that, under the proper circumstances. most of the objectionable elements that have been
{
' introduced or mobilized during leaching will be removed by reprecipitation, ion exchange, adsorption, or reduction
..~ Geraghty & Miller, Ground-water Elements ofin Stru Leach Mining of Urantum, at 16 (Aug.1978).
4 To assist t!.e reader, NMA has provided a schematic of the ISL mining process on the following page, 100 l
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In the aboveground portion of an ISL facility, the "pregnar.." solution (the lixiviant I
I containing uranium)is run through IX units, which remove uranium from the soluuon.
Specifically, as the pregnant solution passes through the IX units, the uranium attaches to the IX l
{
resin. At this point, the barren lixiviant from which the uranium has been removed is retumed to
-f the injection circuit and pumped back into the ore zone for further uranium removal. When fuliy I
i 1
(
loaded, the IX resin containing the uranium is removed from :he IX units and usually trucked to the mill (much as uranium bearing ore is trucked to the mill at a conventional mine). At the mill j
r F
the uranium is stripped, or "eluted,"E from the resin by passing a concentrated chloride salt l
l solution over the loaded resin which allows chloride ions to replace the uranium ions on the resin. This is the equivalent to the acid leaching stage of conventional milling. Once eluted, the resulting material, a rich eluate,E is treated with ammonia to precipitate the uranium. This
[
precipitate is dewatered, filtered and dried to produce a uranium oxide concentrate (i.e., U 0, or i
3 i
yellowcake) for delivery.
Several liquid wastes are produced at various stages in an ISL facility. For example, v.
during mining, slightly more water is retnoved from the ore zone than is injected. This net withdrawal, or " bleed," creates a cone of depression, or pressure sink, that prevents production fluids from leaving the mining zone.E It also brings fresh water into the mmmg zone to inhibit 4
the build up of contaminants that could reduce the efficiency of the mining operation. This bleed i "Elution" is the removal of uranium from the resin using a chemical solution known as "cluant." Paul W.
Thrush and the Bureau oiMines Staff, A Dicnonary ofMmmg. Mmeral, andRelated Terms (l968).
f E " Eluate"is defined as the " pregnant solution eluted from the loaded resins"in the IX process. Id.
E This activity is conceptually very similar to the mine dewatering process at conventional mines.
9 102 1
solution, which often contains high levels of radium, is treated to remove the radium using a barium-radium sulphate precipitation method. The resulting precipitates are removed from the bleed in settling ponds or by filtration. The treated water is then discharged to holding ponds and from there it may be disposed of through land application, deep well injection, solar raporation or some combination of these methods. The sludges formed from the barium radium sulphate l
precipitates may be disposed of at uranium mill tailings facilities as 11e.(2) byproduct material pursuant to Criterion 2 of Appendix A.
Other types ofliquid waste are generated during groundwater restoration when uranium mining (i.e., production) operations cease.E For example, groundwater sweep requires the use i
of existing wells to remove water from the ore zone which lets native groundwater flow in to replace the contaminated water. The water from groundwater sweep is treated for radium removal in the same manner as the wellfield bleed water described above, Altematively, the l
water may be treated using reverse osmosis (RO) and reinjected to accelerate groundwater restoration. In fact, groundwater restoration often uses a co nbination of these two techniques, and possibly the use of a reductant and pH modifier to optimize results. Again, after treatment, this water can be land applied or disposed by deep disposal, solar evaporation, surface discharge (if water quality meets EPA NPDES requirements) or some combination of these methods.
~
I "i, Groundwater restoration at an ISL wellfield is conceptually similar to reclamation at a conventional mine.
I 103 I
l
C.
NRC's 1980 Legal Ooinion On ISL Minine is Flawed Because NRC Mav Reculate Oniv Those Materials Within the Jurisdiction of the AEA In the 1980 ISL Memorandum, NRC's legal staff opined that the AEA provided the Commission with legal authority to impose groundwater protection sti.ndards on ISL licensees.
The legal staff reached this conclusion essentially because ofits view that ISL mining is a type of processing and because "the potential interaction with groundwater is so integrally related to the s.boveground processing (which [NRC does) license) as to be properly the subject oflicense conditions,just as, historically, we were able to regulate the generation (but not subsequent use) of tailings from the conventional milling process."E Moreover, the memorandum cites NEPA authority to bolster its jurisdictional claim.
As several ISL companies explained to the Commission in 1994. the legal rationale set forth in the 1980 ISL Memorandum is flawed # The basic problem is that the memorandum, and subsequent NRC documents assening authority over ISL facilities, ignore the jurisdictional limitations in the AEA, as amended. In the AEA. Congress provided authority for NRC to regulate only certain enumerated types of radioactive materials: source, special nuclear and
~
byproduct material. More specifically, the Act provides that licensing requirements apply to persons possessing either source material "after removal from its place of deposit in nature" or byproduct material resulting from source material productionM Accordingly, the defmitions of 1
E 1980 ISL Memorandum at 12.
See Lener from Anthony Thompson to Malcolm Knapp, Director. Division of Waste Management, NRC il (Mar.10.1994).
~ 42 U.S.C. ( 2092. The definitions of " source" and "by product" material are set forth mfra. Special nuclear.
.naterial is not relevant for this portion of the White Paper.
9 104
s v
t t
l' I
q source and byproduct material are critical in determmmg the scope of NRC licensing authority at p
i
[
ISL facilities.- This means that the various stages of numng and beneficiation and processing, if t
p, any, at an ISL facility must be evaluated in light of the AEA definitions and existing regulatory interpretations thereof.E This analysis reveals that the 1980 ISL Memorandum's assertion of s
jurisdiction over wellfields at ISL minmg operations results in the regulation of some non-AEA
?
n$
materials and the non-regulation of some AEA materials, all of which lead to conflicts with the j
Commission's policy on disposal of only AEA materials in mill tailing facilities.E 6
l
- 1. Wellfield Materials Do Not Constitute Source Material h
h The AEA defines source material to mean "(1) uranium, thorium, or any other material which is determined by the Commission... to be source material; or (2) ores containing one or
[
more of the foregoing materials, in such concentration as the Commission may by regulation t
f determine from time to time."2 Pursuant to this statutory defmition, NRC has defined source material to include " ores which contain by weight one-twentieth of one percent (0.05%) or more" 1
E A relevant analytical approach is one used by NRC in the context of " side-stream" recovery operations.
Specifically, the Commission has noted that some ores containing uranium or thorium are not processed primarily for their source material content and therefore processing these materials does not generate lle.(2) byproduct material. For example, a rare earth facility may have a side stream operation to recover the uranium or thorium.
"Although this side stream recovery operation is licensed by NRC, the tailings (or other wastes produced].. are not I le.(2) byproduct material" because the mineral recovery operation's primary purpose is not to recover source material but to recover rare earths. The Commission notes that if the tailings have greater than 0.05% uranium or thorium they would be licensable as source material. 57 Fed. Reg. 20,525,' 20,527 (1992). This discussion j
demonstrates that the various definitions and exclusions must be applied to different stages or portions of a facility.
This approach will result in an NRC license for a facility covertng only those portions of the facilitv properly within NRCjurisdiction.
2 See Letter from Anthony Thompson to Malcolm Knapp. Director, Division of Waste Management, NRC.
(Mar.10,1994).
p 1 42 U.S.C. } 2014(z).
105
f of uranium, thorium, or any combination thereof.E For material falling within the definition of source material, the AEA requires a license only "after removalfrom its place ofdeposit in nature except that licenses shall not be required for quantities of source material which, in the opinion of the Commission, are unimportant."E NRC has found several quantities of source material to be " unimportant quantities" and thus exempt from licensing requirements, inc "any chemical mixture, compound, solution, or alloy in which the source material is by we less than one-twentieth of 1 percent (0.05 percent) of the mixture, solution or alloy."E In addition, " unrefined and unprocessed ore" is also considered to be " unimportant."E Even if one were to accept NRCS argument that " processing" occurs underground, the ore is not removed from its place of deposit in nature until it reaches the surface. Moreover, the
,segnant lixiviant generally does not reach the 0.05% licensable quantity concentration until the IX unit or beyond. For these reasons, NRC lacksjurisdiction over the underground activities at aa ISL wd. field.
1 10 C.F.R. { 40.4.
1 42 U.S.C. 5 2092 (emphasis added). See also 10 CJ.R. [ 40.3. Congress provided that NRC need not regulate " unimportant" quantities of source material so that the Commission would maintain a focus on the nuclear fuel cycle and not other types of activiues such as minmg.
10 C.F.R. [ 40.13(a).
10 C.F.R. { 40.13(b).
9 106
t (a)
Until it Reaches the Surface. the Uranium at ap_lSL Wellfield Has Not Been " Removed From its Place _p.f i
Deoosit in Nature " and Prior to Elution. the Uranium Ore Remains Unorocessed.
Because the Commission's licensing authority is limited to source material after removal from itsplace ofdeposit in nature, NRC does not have jurisdiction over the ore prior to the IX unit certainly and most appropriately beyond that point, at the elution stage.E Utis limitation j
was intended to prevent an assertion ofjurisdiction over mmmg and to allow the use and I
possession of uranium until it is brought to the surface for beneficiation.E As explained in this section, NRC has remained faithful to this limitation at conventional mining and milling operations and should do the same for ISL operations.
With respect to ISL mining, NRC staff have taken the position that the " dissolution of uranium in the ore body is a removal of uranium from its place of deposit in nature and is also a form of processing."E Beyond this conclusory statement, NRC staff articulates no rationale to support its view that ISL mining is not muung. The position that ISL mining involves the li removal of source material from its place of deposit in nature while the uranium is still o
11 i
underground plainly conflicts with NRC's position that conventional underground mining Moreover, NRC regulations expressly exempt from licensing requirements " unrefined or unprocessed ore." 10 C.F.R. ) 40.13(b). NRC defines " unrefined and unprocessed ore" as " ore in its natural form prior to any processmg 1
such as grinding, roasting, beneficiating, or refining." 10 C.F.R. { 40.4. None of these activities occur below the surface at an ISL facility.
g As NRC has acknowledged,it has no direct autr:onty over uranium mining or mine wastes. FGEIS vol. I at 2
A 94. This is consistent with a fundamental purpose of the AEA. which was to encourage a domestic uranium l
mining industry. See introduction, supra. See also S. Rep. No. 1211 (1946) at 5, reprmred m 1949 U.S.C.A.An at 1332 Letter from Malcolm Knapp, Director Division of Waste Management, NRC, to Anthony Thompson (June 2, FE 1994).
107
s echniques do not mvolve the removal of source material from its place of deposit in nature until the ore reaches the ore pads at the mill site. Moreover, because no processing occurs until the pregnant lixiviant reaches the surface, the belowground activities fall within the scope of the licensing exemption for unrefined and unprocessed ore.H First, applying the widely accepted Bureau of Mines definition to an ISL wellfield shows that " mining" occurs underground at these wellfields. According to that definition, " mining" is:
The science, technique, and business of mineral discovery and exploitation. Strictly, the word connotes underground work directed to severance and treatment of ore or associated rock.
Practically, it includes opencast work, quarrying, alluvial dredging, and combined operations, including surface and underground attack and ore treatment.E il mining is nothing more than " underground work directed to severance and treatment of ore or associated rock" and thus falls squarely within the Bureau of Mines def'mition. The step that follows mining is " beneficiation," which is defined as "improv[ing] the grade by removing gangue material; to upgrade."E Because the intent ofISL mining merely is to extract the ura-nium from the ore body, and not to improve the grade of the material, this actisity does not
" beneficiate" the Luanium. Rather, beneficiation begins at the elution stage and continues to the vanium conversion process.
2 10 C.FA { 40.13(b).
Paul W. Thrush and the Bureau of Mines Staff. A Dictiona7 of Mining. Mineral and Related Terms (1968)
Id.
t 108
4 Moreover, from a practical standpoint the belowground activity at an ISL wellfield removes the uranium ore from the ore body and brings it to the surface for beneficiation and later f
processing at upstream fuel cycle facilities and therefore is legally and conceptuallv no different i
than conventional surface or underground mining, neither of which has been regulated by NRC.
The ISL wellfield merely allows the mimng company to bring uranium ore to the surface in solution. If this removes the uranium from its place of deposit in nature, then so does hberating the ore from the host rock by blasting, mecharual removal and transpon, and, if underground, hoisting the ore to the surface with unwanted host constituents. However, NRC correctly does not claim that conventional extraction techniques are processing. Indeed, at conventional mines NRC does not even regulate the ore stored on pads on the surface at mine sites, nor does it regulate the transport of such ore from the mine to the mill whether the facilities are next door to each other or miles apart. Rather, at conventional mining operations, NRC recognizes that it has no jurisdiction over the ore until milling begins. Applying this rationale to an ISL mine, the stage most like milling begins at the elution and precipitation stages. Accordingly, until the pregnant lixiviant from the wellfield reaches the IX unit (at a minimum), the source material has not been removed from its place of deposit in nature and it is not until subsequent elution and precipitation that activities akin to milling occur. Thus, prior to elution, the lixiviant is not subject to NRC licensing requirements. This approach is consistent with NRC's reasoning in its 1979 ISL Memorandum. That document nnes that after the recovery of uranium using extraction wells, "[u)ranium is then separa ed from the leach solution by conventional milling i
109
s unit operations."E Therefore, in 1979 NRC legal staff recognized that the milling at an ISL mine takes place after the lixiviant reaches the surface.
i Moreover, although ISL extraction does increase the uranium concentration, it is impossible to have an extraction process that does not generate some material with increased i
concentrations of uranium. Indeed, this is the point of an efficient mining operation. However.
the mere creation of these increased concentration does not make an activity " processing."E If NRC were to apply such a rationale to' conventional muung, all portions of the ore body from which ore is removed (whether from an underground or a surface mine) would qualify as byproduct material. Additionally, it would be inconsistent with NRC practice to claim that merely concentrating uranium ore makes an activity " processing." For example, several selective j
.nining techniques were used to recover uranium on the Colorado Plateau. One such selective mining technique, split-shot mining, was used where at the end of the underground mining tunnel i
the ore was exposed in layers. In this situation the method used was to drill and blast the non-ore portion for removal, and then to drill and blast the ore. Although the practice resulted in a 1 m
increase in uranium concentration, NRC never seriously proposed that this activity might be regulated as processing and not mining.E The 1980 ISL Memorandum's position that in situ uranium mining is a form of processing conflicts' squarely with EPA's regulatory position on the various stages of mining, E 1979 ISL Memorandum, Attachment A at 2 (emphasis added).
E As one authority has noted, some activities " associated with metal extraction appear to concentrate certain radionuclides." Philip Egidi, Oak Ridge National Laboratory. Introdue 4on to Technologically-Enhanced Naturally occurring Radioactive Maternal at 35 ( Apr. l.1998).
4 Similarly. many types of surface ore dressing include sortmg operations that achieve s milar results.
t 110
t 9
l milling and processing activities. Under EPA's Bevill Amendment regulations. the Agency t
exempts from the RCRA program "[s]olid waste from the extraction, beneficiation, and I
processing of ores and minerals."E EPA's regulatory approach to applying this exemption l
i makes the distinction between beneficiation and processing critical because all beneficiation
}
+
wastes are exempt under Bevill while only a limited number of processing wastes specified in the I
regulations are exempt.E I
i i
l' Although EPA has not promulgated a regulatory definition of" extraction," the Agency has noted that "[e]xtraction is commonly defined as the operation of physically removing ore i
from deposits in the earth."E Once the ore is extracted, beneficiation takes place and " typically serves to separate and concentrate the mineral values from waste material, remove impurities, or prepare the ore for further refinement. Beneficiation activities do not change the mineral values themselves other than by changing their physical form. such as by reducing or enlarging the.
j particle size to facilitate processing."E These activities are distinguished from processing, which is described as the operations that " generally follow beneficiation and serve to change the mineral values into a more useful chemical form. using thermal or chemical reactions."E I
4 l
2.
40 C.F.R. j 261.4(b)(7).
C Id.
EPA. Office of Emergency and Remedial Response. Techmcal Background Documem Supportmg Fmal
.mstrative Reportmg Exemptionsfor Certain Releases ofRadionuchdes. Appendtx A at A 1 (Oct.1997).
C /d at A-3 (citation ommed).
C /d. at A-6.
p 111
r Indeed, EPA has applied these definitions to the uranium recovery industry and has determined that processing begins afteryellowcake production and before the
- u conversion / purification process. The agency " identified this point in the process sequence as where beneficiation ends and mineral processing begins because it is here where yellowcake (uranium oxide)is chemically oxidized to uranium dioxide."E Because the position taken by the legal staffin the 1980 ISL Memorandum is inconsistent with EPA's view of where processing begins, there is yet another reason for the Commission to take a fresh look at the bases for that opinion.
Finally, NRC staff sought to bolster its assertion ofjurisdiction over ISL wellfields by arguing that the belowground activities at an ISL facility are "so integrally related to the above ground processing.. as to be properly the subject oflicense conditions."E Therefore,
, without citing any authority for the proposition. NRC legal staff claimed that NRC may exercise I
control over all " integral" parts of an activity if a license is required for a portion thereof.E However, as explained above, NRC's jurisdiction under the AEA is strictly limited to the t
regulation of source, special nuclear, and byproduct material. While NRC has clear authority to regulate these materials, it has no authority over materials outside of the specific jurisdiction granted by the AEA. Moreover, applying the legal staffs " integrally-related" argument to conventional mining operations suggests that mining activities such as blasting and mine J
EPA. Office of Solid Waste and Emergency Response. identification andDescription ofMmeral Processmg Sectors and Waste Streams at Section B(4) of " Uranium" (Dec.1995).
E 1980 ISL Memorandam at I (emphasis added).
D
/d.. Attachment A at 6.
9 112 1-qg.
1
,r I
dewatering at conventional underground or surface mines could be considered integrally-related to the aboveground milling of uranium. Yet this is not the position taken by NRC. In addition, NRC does not treat tailings and wastes of rare earths or other metal recovery facilities that have side-stream uranium recovery operations as Ile.(2) byproduct material since such facilities are not operatedprimarily to recover source material. Nor does NRC license those portions of a UR facility engaged in side-stream operations although. applying the legal staffs logic, these side-st-cam operation: :nd materials could be considered integrally-related to the milling process.
(b)
The 0.05 % Exemrition Even though there is source material (i.e., uranium) in ISL wellfield lixiviant, NRC regulations exempt from licensing requirements source material in any chemical mixture, compound, solution, or alloy in which the source material is by weight less than.. (0.05 t
percent, of the mixture, compound, solution or alloy."E Because the pregnant lixiviant from the ISL wellfields generally contains an average of less than 0.05% uranium prior to the IX unit, and usually beyond, the solution is exempt from licensing requirements.E i
The 0.05% concentration limit has played an important role derming the Commission's I
jurisdiction. Specifically, as explained in the introduction to this White Paper, the exempuon from licensing source material below 0.05% was a catalyst for amending the AEA to provide for I
E 10 C.F.R. [ 40.13(a).
E Just as one truck at a conventional UR facility contams some ore well above 0.05%. and some well below.
similarly. cenain selective mining techniques will result in materials of widely varymg concentrations of ore. See discussion of split-shot minmg. mfra.
t 113 i
L
. +
L.
the direct regulation of uranium mill tailings as 11eJ2) byproduct material. Because these l,
tailings have less than 0.05% source material content, prior to UM1RCA, NRC had no direct statutoryjurisdiction over them once milling operations ceased. As noted above. NRC had v
asserted indirect authority over tailings during milling operations. To explain the need for UMTRCA, the former Chauman of NRC testified to Congress: " Historically, NRC and its r
predecessor agency have not had regulatory jurisdiction over uranium mill tailings after mill
^
operations are terminated because the tailings are not themselves licensable material...
W
[T]ailings themselves are not source material or any materiallicensable by the Commission."M Similarly, a memorandum by the AEC General Counsel addressing jurisdiction over uranium mill tailings prior to UMTRCA noted that:
The materials [taili' p) are not source material. The use of the materials by the t' ;cnt clearly wouldbe beyondthe Commission'sjm x diction, since mill operators would not be transferring source material and the recipients would not be receiving, using or transferring source material. An attempt to condition the transfers by the licensed mill operator of such materials, upon a showing that the transfer will meet the Commission's " requirements" would appear to be an attempt to accomplish, by indirection. Commission control over matters outside itsjurisdiction.E
.i Finally, the United States Court of Appeals for the Distric'. of Columbia Circuit has noted the jurisdictional importance of the 0.05% exemption. That court wrote that "as early as 1960, however, [NRC) had concluded that because these mill tailings generally could not be classified h*-
Statement of Dr. Joseph M. Hendrie. Chairman oiNRC in Urantum Mill Taihngs Radiation Con'rol Act of 1978. Hearmgs on H.R I1698. H.R I2229. H.R. I2938, H.R. I2333. H.R. I3049 andHR I3650, Subcomm. on Energy and Power, House Comm. on interstate and Foreign Commerce,95th Cong. at 216. 341 (1978)(emphasis added).
C tramum Mill Tailmgs Radiation Control Act, 19'b Hearmgs Before the Subcommittee on Energv and Power ofone Committee on lmerstate and Foreign Commerce. 95th Cong. at 207 (1978)(emphasis addedI.
e 114
I t
as source material (their source material content being below the 0.05% by weight stipulated by i
l NRC regulation), they lay outside [NRC's] statutory licensing authority and therefore beyond its regulatory reach."M UMTRCA was designed to address this concem by adding to NRC's jurisdiction a new class of regulated material: 11e.(2) byproduct material. Therefore, since the enactment of UMTRCA, NRC has had jurisdiction over two materials of potential relevance for uranium j
mmmg and milling facilities: source material in excess of 0.05%; and 11e.(2) byproduct j
material. Later NMA addresses NRC's jurisdiction over byproduct material at ISL facilities.E With rega'rd to source material, however, the Commission still may regulate only source material in excess of 0.05%.E Because the pregnant fixiviant generally does not reach licensable concentrations until the IX unit, NRC does not have jurisdiction prior to this stage ofISL operations.
The Commission staff recently argued that the 0.05% exemption does not apply to ISL solutions in the wellfield which are below that concentration because the exemption "does not i
apply to licensed persons."E This entirely circular conclusion is a good example of the t
t k
Kerr-htcGee v U.S Nuclear Regulatorv Commissson,903 F.2d 1,3 (D.C. Cir.1990)(emphasis added)(cite E
omitted).
E See section Ill(C)(2), anfra.
As NRC's Office of State Programs recently wrote: "[o)res that have less than the 0.05% weight concentratio".
E of uranium and'or thorium are not source material and not regulated under the AEA." Letter from Paul Lohaus, Deputy Director, Office of State Programs, NRC to Gary Robertson, Washington Division of Radiation Prot (May 18,1994), Question 1. In that same letter, NRC noted that for waste disposal purposes, materials below 0.05% and meeting NRC's unrestricted release enteria are exempt from NRC disposal requirements. Id at Question 5 Letter from Malcolm Knapp. Director, Division of Waste Management, NRC to Anthony Thompson Dun E
1996)
)
115
W MI regulatory "gerry rigging" that is necessary to sustain the argument that NRC hasjurisdiction over the underground mining in ISL wellfield operations. NRC does not license other types
)
mining operations (even other types ofISL operations (e.g., copper)) where source material concentrations do not reach the 0.05% level. In other words, one is only a " licensed person" for t
b the portions of one's operation generating source material concentrations of 0.05% or grea p
Additionally, as noted above, NRC's position would directly contradict it's " side-stream" h
licensing history and in so doing perhaps create untold hundreds of millions of tons ofnew I
lIc.(2) byproduct material at non-AEA licensed mineral production facilities. As explained
(
already, neither the mill nor the tailings at side-stream operations are considered 1 Ie.(2) byproduct material, and the tailings are not deemed to be licensable source material unless contain greater than 0.05% uranium or thorium.E NRC's recent argument also is inconsistent with the applicable regulatory language stating that any person "is exemptfrom the regulations in [Part 40] andfrom the requirements for a license.. to the extent that such person" uses source material below 0.05%.E A plain reading of this language can only mean that neither the licensing requirement, nor any other Part 40 requirement, applies to the portions of a facility that do not have source material at 0.05%. If NRC wishes to take a different position with regard to ISL facilities,it should explain why these licensees must submit to regulation of exempt materials.
'2.
See 57 Fed. Reg. 20.525. 20.527 (1992).
D-
- 0 C.F.R. ) 40.13(a)(emphasis added).
I16
e NRC does not have authority to regulate the portions ofISL facilities involving source material with less than 0.05% uranium. The Commission's assertion ofjurisdiction over such aspects ofISL mining is "an attempt to accomplish, by indirection. Commission control over matters outside itsjurisdiction."M 2.
Byeroduct Material As explain:d in the Introduction to this White Paper, UMTRCA amended the AEA to provide NRC regulatoryjurisdiction over lle.(2) byproduct material. The AEA defines Ile.(2) byproduct material as: "the tailings or wastes produced by the extraction or concentration of uranium or thorium frorn any ore processed primarily for its source material content."2 However, in its regulatory definition NRC adds the following: " including discrete surface wastes resulting from uranium solution extraction processes. Underground ore bodies depleted by such solution extraction operations do not constitute ' byproduct material' within this definition."E NMA agrees that some discrete surface wastes at an ISL facility fall within the definition of 11e.(2) byproduct material. However, NRC's position that the depleted underground ore body
\\
at an ISL wellfield is not I le.(2) byproduct material is inconsistent with its argument that processing occurs underground and is another example of how NRC's approach to regulating
- - Uramum Mill Tailings Radiation Control Act
- 1978 Hearmgs Before the Subcommittee on Energy and Power ofthe Committee on interstate and Foreign Commerce. 95th Cong. at 207 (l978)(emphasis added).
E 42 U.S.C. ! 2014(e)(2). lle.(1) byproduct is not relevant for this discussion.
10 Cf.R. 6 40.4 (emphasis added). As described in section IV below, licensees can accept 11e.(2) byproduct E
material at tailings piles. However, the licensees must have NRC approval to take AEA wastes other than lle.(2) materials, and are prohibited from accepting non-AEA wastes like NORM or N ARM.
I17
these facilities is logically flawed. Specifically, at a conventional facility, once the uranium is separated from the waste rock, what remains are mill tailings, the classic 1 le.(2) byproduct 6
, material. Moreover, at a conventional operation, the processing equipment, including the mill itself,is 11e.(2) byproduct material. To be consistent with this approach, if the equivalent of milling is occurring underground at an ISL facility, then NRC should treat the depleted ore body as I le.(2) byproduct material for two reasons: (1) the ore body is what is left once the uranium is separated from the rock, making the ore body a tailing or waste; and (2) if the ore body is where processing takes place, then it should be treated like a conventional mill which is itself considered to be 11e.(2) byproduct material. Accordingly, NRC's regulatory exclusion of the depleted ore body from the definition of 1le.(2) byproduct material is inconsistent with its position that milling occurs underground.
There are other problems with the staffs assertion ofjurisdiction over the underground
{
portion of an ISL facility. For example, while NMA agrees that UMTRCA provide.t jurisdiction over the discrete surface wastes at ISL facilities, NRC has no statutory basis for exercising jurisdiction over restoration waters. These waters consist of native groundwater that is extracted and then reinjected into the underground ore body in a process analogous to reclamation at a conventional mine. This water is run through an IX unit at ISL milling facilities to remove the uranium extracted in solution underground. The reinjected water has been stripped of uranium and does not have sufficient concentrations to meet the definition oflicensable source material, much as uranium mill tailings did not reach source material levels. Moreover, this water also fails to meet the definition of I le.(2) byproduct material because the water is not " tailings," nor s it a " waste" since it is not discarded or abandoned but continually recycled through the ore 118
body. As EPA has noted, while the leaching operation is active, only leach solutions "that escape from the production process are considered wastes." E A faithful application of the statutory defmitions to the reinjected water shows that NRC lacks jurisdiction over these underground waters at ISL wellfields.E In the 1980 ISL Memorandum the Commission's legal staff argues that the legislative history of UMTRCA demonstrates a Congressional intent to regulate the underground aspect of ISL mmmg. Although the 1980 ISL Memorandum acknowledges that the " authors of UMTRCA were primarily concerned with the mill tailings and waste from conventional uranium milling techniques, rather than insitu opervi=."E he staff claims that the drafters understood that t
UMTRCA "would apply to all aspects ofinsitu operations."E However, this discussion in the legislative history upon which the legal staff relies address the exemption ofISL facilities from 1
the long term control rec,uirement applicable to mill tailings.E This discussion, far from lending support to the staffs view, shows only that because ISL mining involves " minimal
{
disturbance of the land.., the necessity of transferring surface and subsurface title may not exist j
where uranium mining and extraction is limited to solution techniques."2 Thus, the exchange I
relied upon by NRC legal staff demonstrates only the complete inapplicability of an important j
l 1
l E 54 Fed. Reg. 36.592, n.1 (1989).
I E A proper application of these definitions also would be consistent with NRC legal staffs 1979 Memorandum.
That memorandum demonstrated an understanding that UMTRCA provided authority only over the discrete surface wastes at an ISL facility.
2 1980 ISL Memorandum, Attachment A at 7.
2 /d. at 12 (quoting from an exchange between Senator Han and Senator Wallop).
2 Id..
i 1
2 Cong. Rec. S18.748 (daily ed.. October 13.1978).
119 l
o
-I UMTRCA component to ISL mmmg, and provides support for the proposition that ISL facilities 9
should be exempt from cenam regulatory requirements. Indeed, S-language in the legislative yg history demonstrates Congress' understanding that ISL operations have less potential environmental impacts than conventional mining and therefore should not be subject to as stringent regulation. Moreover, the 1980 ISL Memorandum's view of the legislative history of
,e UMTRCA contrasts sharply with the staffs own analysis one year earlier. The 1979 ISL Memorandum reads the legislative history to demonstrate that " Congress was primarily F.
4r concerned with the hazards from tailings piles resulting from conventional milling operations."E The only materials at an ISL wellfield that fall within NRCjurisdiction over 11e.(2) byproduct material are the discrete surface wastes. NRC staffs assenion of authority over other materials is a result of an improper and inconsistent application of AEA definitions.
3.
NEPA Provides No Sucolemental Jurisdiction Perhaps recognizing the inconsistencies and weaknesses associated with its assenion o'
(;
authority over ISL facilities, NRC continues to rely on NEPA to bolster its jurisdictional claim.E However, this reliance is misplaced, arising out of a misreading of early NEPA case s.
law and standing in stark contrast to contemporaryjudicial interpretations of the statute. Indeed, as noted in the Introduction to this White Paper, NRC initially relied on NEPA to assen I
E 1979 ISL Memorandum, App:ndix A at 1.
E For example, in the 1980 ISL Memorandum. NRC relied upon "the general authority available under (NEPA}
to impose environmentallicense conditions." 1980 ISL Memorandum at 2. See also NRC Staff Response to Concems Raised by the National Mining Associa cn (arguing that NEPA fonifies the Commission's ability to regulate groundwater at ISL facilities).
t 120 4-L
jurisdiction over uranium mill tailings after milling operations ceased. However, the Commission recogmzed the weakness of this argument in the mill tailings context and therefore supported statutory authorization to regulate uranium mill tailings, resulting in the creation of the definition of Ile.(2) byproduct material.E-NEPA likewise does not provide NRC with jurisdiction over ISL activities when the Commission's organic statute does not provide such jurisdiction.
The 1980 ISL Memorandum frames the basic issue as whether case law shows that NEPA
" authorizes the Commission to exercise the regulatory power it unquestionably has - the power to license and regulate in situ operations - in a fashion that will mmumze to the extent practical the adverse environmental impacts which could result by the contamination of groundwater from I
l such operations."E The Memorandum answers in the affirmative, stating that where it has a jurisdictional toehold over a licensed activity, it has authority to use that [NEPA] power to protect the environment.E NRC must accept that "NEPA, as a procedural device, does not work a broadening of[an}
agency's substantive powers."m. The United States Court of Appeals for the Third Circuit could E As noted by Chairman Hendrie in his testimony before' Congress,"NRC and its predecessor agency have not had regulatory jurisdiction over uranium mill tailings after mill operations are terminated because the tailings are not themselves licensable material... [T]adtngs themselves are not source material or any materiallicensable by he Commsssoon. " Statement of Dr. Joseph M. Hendrie, Chairman oiNRC in Uranium Mill Tailings Radsation g
Control Act of1978: Hearsng on H.R I1698. H.R. I2229. H.R I2938. H.R.12333, H.R.13049. and H.R. I3630, Subcomm on Energy and Power House Comm on Interstate and Foreign Commerce,95th Cong. at 216,541 (1978)(emphasis added).
E 1980 ISL Memorandum, Attachment A at 15.
1"*-
/d. at 16.
d Natural Resources Defense Council v. EPA,822 F.2d 104,129 (D.C. Cir.1987).
121
not have stated this lack of ajurisdictional grant in plainer language: "[t]he National Environmental Policy Act does not expand thejurisdiction ofan agency beyond that setforth in its organic statute, r.nd the Supreme Court has characterized 'its mandate to the agencies [as]
essentially procedural."'E NRC legal staff has failed to acknowledge that "an agency's power is no greater than that delegated to it by Congress."E Although it is true that the NRC, like any agency, has discretion within which it can act pursuant to its statutory authority, it cannot act outside of that authority. As the United States Supreme Court has stated:
[a]gencies whether created by statute or Executive Order, must of
. course be free to give reasonable scope to the terms concerning their authority. But they are notfree to ignore plain limitations on that authority.E The 1980 ISL Memorandum relies on cases such as Calvert Chffs to support the view that the Commission may impose license conditions on the subsurface portions ofISL facilities.E Essentially, NRC relies on these cases to argue that NEPA not only requires the consideration of environmental impacts of a licensing action, but requires the mitigation ofimpacts associated with that action. However, nothing in the Calvert Chffs decision suggests that the Commission is required or authorized to exceed its mandate to consider external environmental matters.
l D'-
Cape May Greene. Inc. v Warren. 698 T.2d 179,188 (3d Cir.1983)(quotmg Vermont Yankee Nuclear Power Corporation v. NRDC,435 U.S. 519,558 (1978))(emphasis added). The United States District Coun for the i
District of Massachusetts quoted this precise language from Cape May Greene. MallProperties. Inc. v. Marsh,672
{
F. Supp 561,571 (D. Mass.1987). appealdismissed 841 F.2d 440 (1st Ci:.1988). See also Oregon Enyrl. Couned
- v. Kun: man,817 F.2d 484. 492 (9th Cir.1987)(NEPA is essentially a procedural statute).
j i
E l.png v Payne,476 U.S. 926. 937 (1986) 2*-
Peters v Hobby,349 U.S. 331. 345 (1955).
E See 1980 ISL Memorandum. Attachment A at 16 (citmg Calvert Citffs Coordmaring Commutee v AEC. 440 l
F.2d 110,9 (D.C. Cir.1971))
122
4.
EPA Alreadv Reculates the Undercround Activities at ISL Wellfields As a practical matter, there is no need for NRC to regulate the subsurface activities at an ISL wellfield since these activities are addressed adequately by EPA's UIC regulations. These regulations, which apply to injection and production at ISL wellfields, are intended to protect underground waters from contammation and prohibit the movement of any contaminant into an underground source of drmktng water. Therefore, prior to commencing operations at an ISL facility, a mining company must apply for and receive a UIC permit and an aquifer exemption for the underground mmmg zone.L"- Typically EPA grants these aquifer exemptions where high mineral content in the ore zone and high radionuclide concentrations render the native groundwater unusable as a source of drmking water.E i
in addition to assuring that no activities take place in underg ou d sources of drmkmg i
r n water, EPA's comprehensive pennitting program includes standards for wellfield design and performance. For example, EPA regulations include specific requirements for operating and monitoring the wells at ISL faciliti.es.E These standards provide more than sufficient protection for groundwater, thus making redundant any attempt by NRC to regulate the underground aspect ofISL mining. Moreover, NRC has stated publicly that, in the context of deep well disposal at sm E
To approve an aquifer exemption, EPA (or a state with UIC enforcement authority) must find that the aquifer i
does not currently serve as a source of drinking water. 40 C.F.R. 6146.4(a). Additionally, there must be a findmg that the aquifer cannot and will not in the future serve as a source of drinkmg water. 40 C.F.R. Q 146.4(c). One way to support a finding that the aquifer cannot in the future serve as a source of drinking water is to determine that it contams minerals that are expected to be commercially producible. 40 C.F.R. 6146.4(b)(1).
3 The radionuclide concentrations in the ore zones normally exceed existing cr proposed EPA drinking water s.andards under the SDWA. For example, radon can be m the range of hundreds of thousands of pCill, while EPA's i
1991 proposed radon in water limit was 300 pCLI.
i L 40 C F R f 146.33.
125 l
a W
F i
i r
L
. [
an ISL facility, EPA's UIC program satisfies "NRC concerns about the safety of subsurface h
injection (i.e., well construction, geology, groundwater, etc.)."IG-NMA agrees fully with this 7,
n b
view, but fails to see why it is not equally applicable to injection and production wells at ISL wellfields.
D.
NRC's Liauid Effluent Guidance h
9 As a practical matter, NRC staffs misapplication and misuse of the AEA jurisdictional E
definitions has put ISL licensees in an awkward position. This is particularly troublesome in the I
p context of handling ISL liquid effluents.
1 i
1.
Effluent at ISL Facilitiej As described above, typically there are several types ofliquid effluent produced at an ISL wellfield facility. For example, production bleed is the groundwater removed from the aquifer in excess of water injected to ensure that there is a " pressure sink" in the ore body, to prevent i
excursions outside of the mining zone, and to inhibit the build up of contaminants in the ore body and mining fluids. Additionally, clution and yellowcake precipitation activities generate f
wastewater, as do restoration activities once the wellfield ceases operation. For most of these k
effluents, licensees have a variety of disposal options available, including land application, solar io evaporation, deep well disposal in appropriate cases or discharge to surface water. As a practical matter. certain of the liquid wastes including particularly the bleed and discarded restoration fluids often are commingled prior to treatment in radium / barium settlement ponds and. thus, any w
resulting sludges are. commingled as well.
4 C Slides prosided at NRC meetmg to discuss public comment on the Draft ISL Standard Review r'lan (February 23.1998)[heremafter ISL SRP Slides).
126 7
o q
- o 2.
NRC's Reauirements for Effluent Discosal e
In 1995, NRC staff drafted a guidance document that was intended 'to assist licensees with their liquid waste disposal. This document, the " Staff Technical Position on Emuent 1
Disposal at Licensed Uranium Recovery Facilities" (Emuent Disposal STP),E provides that
' licensed UR facilities must submit to NRC a site-specific proposal for effluent disposal. This proposal will be approved by NRC ifit complies with NRC and EPA requirements. For example, the Emuent Di.sposal STP provides that any release ofliquid waste to surface water must comply with EPA NPDES regulations. However, because NRC staff misunderstands the EPA requirements, and because the Commission staff has applied its defmitions inconsistently, the Efiluent Disposal STP presents some difficulties for UR licensees. As described more fully in this section, these problems are most obvious in the context of an ISL UR facility. NRC staff recently has sought to address some of these concems for ISL operators in its response to comments on its Draft ISL Standard Review Plan, however, this particular effort further shows i
the impracticality and unworkability of NRC's approach to regulating ISL facilities.
As a threshold matter, NRC acknowledges the distinction in EPA's NPDES regulations betweenprocess/ production wastewaters and mine (restoration) wastewaters.E As explained in the Effluent Disposal STP, NRC defines as process / production wastewater any emuents that are created during actual UR operations, such as production bleed (groundwater extracted from the I
aquifer during recovery operators) and liquid waste from the mill. On the other hand, mine (restoration) wastewater includes any water from post operational groundwater sweep and l
C Directive DWM 95-01 (Apr.1995)[ hereinafter Effluent Disposal STP).
3 Effluent Disposal STP at 5.
9 127 i
k j
d
I groundwater extracted to restore water quality after production operations have ceased (i.e.,
restoration wasteweters).
As the Commission recognizes, NRC does not license mine restoration wastewater.2 Rather, if they are to be discharged these mine restoration wastewaters must comply hith EPA NPDES regulations. On the other hand, the Effluent Disposal STP provides that the disposal of byproduct material in efflue nts (e.g., process / production wastewaters) must comply with NRC regulations.E Recognmng that process / production waters and mine restoration wastewaters frequently are commingled in the same ponds, NRC's Effluent Disposal STP provided licensees with two options for the release of these liquids to surface waters. First, a licensee may categorize its wastewater streams flowing into the pond as either mine wastewater or i
process / production wastewater. In this situation, if both input streams are within applicable NRC and EPA NPDES limits, then the resulting mixture of wastewaters may be released to surface waters.2 Altematively, if a licensee decides not to categorize and monitor its commingled effluents by incoming wastewater stream, the licensee must show that the mixture in the pcnds complies with the NRC standards in 1,0 C.F.R. Part 20 before releasing the effluents to surface water.E 1"t ISL SRP Slides. However, the Commission still suggests that it can impose specific license conditions to remediate anticipated impacts from these mine wastes. Id. Presumably, NRC is relying on the " supplemental jurisdiction" provided by NEPA. As explained above, however, NEPA does not provide any such supplemental jurisdiction.
Efiluent Disposal STP at 2. The Effluent Disposal STP specifically referred to 10 C.F.R. Pan 20, Subpan K.
M*-
E'-
Effluent Disposal STP at 6 2!- Id.
t l
128
[
One problem with NRC's Effluent Disposal STP is that it conflicts with EPA regulations expresslyprohibiting the release of process / production wastewaters from any ISL facility at i
1 l
- which construction began after December 3,1982.22-Accordingly, a discharge to surface water i
'of a mixture of mine/ restoration and process production wastewaters, even ifit complies with 10 C.F.R. Part 20 l'imits (which are more stringent than EPA NPDES limits), violates EPA NPDES regulations.
At a recent public meeting NRC staff stated that for ISL facilities the guidance contained in the Effhient Disposal STP will be modified.8-At this meeting, NRC staff explained that, in response to comments on the Draft ISL Standard Review Plan, the final version of that document will be revised with regard to effluent disposal. Specifically, the final plan will address water that is stored in radium-barium treatment ponds which, as described above, frequently contain i
i mixtures of process / production waters and mine/ restoration waters.- Responding to concems of mine operators'that these mixtures would ' raise disposal problems, NRC has developed a I
" predominant source" test. Under this standard, if the predommant source of effluent in a pond is process water, then all of the waste is 11e.(2) byproduct material. By contrast, if the predominant source is mine water, then all of the waste is subject to state mmmg standards.
The problem with NRC's " predominant source" test is that it will result in mine wastes (a type of NOILNI) being sent to tailings piles. Indeed, under this test, one could put anything in a j
tailings pile so long as 11e.(2) byproduct material " predominates." When one considers NRC's i
ri 40 C.F R. g 440.34(b) For older ISL facihties the prohibition does not apply, if-ISL SRP Slides.-
9 129 lA
r rationale for the non-11e.f2) policy described in section IV. the " predominant source" test could present an obstacle to site closure if DOE or the states refuse to take title to a tailings pile t
containing non-11e.f2) materials because of the potential for overlapping jurisdiction over mixed wastes. Thus, the " predominant source" test is another example of a stop gap measure designed to address a concem in the short term that fails to address the fundamental problems with NRC's 1
UR program.
o 6
Finally, one concern about NRC's predominant source test may have been elirninated by a
?
4 recent decision of the United States Court of Appeals for the Ninth Circuit. This concern i
involved EPA's NPDES regulations prohibiting ISL facilities where construction began after 1982 from discharging process / production water.E-Because of the mixture of t
process / production water and mine! restoration water in the ponds, any releases to surface water would have included process / production waters and thus would have violated EPA's regulation.
t In Dawn Mining, however, the court held that the CWA does not apply to lle.(2) byproduct materials.E Specifically, the court found that 11e.(2) byproduct materials do not fall within that n
statute's definition of" pollutant."E This being the case, process / production waters at ISL y
wellfields, which under NRC's current interpretation are 11e.(2) byproduct material, are not s
" pollutants" and are not within the scope of the CWA. Accordingly, EPA's prohibition on the er discharge of process / production wastewaters may be irrelevant at ISL facilities.
E ISL SRP Sli:les Waste Action Project v. Dawn Mining Corp.. No. 96-36055,1998 US. App. Lexis 4115 at "15 (9th Cir.
'E Mar.10.1998).
& Daun Mining at
- I0.
9.
130 i
j l
l*
64
)
E.
Recommendations NRC staff's jurisdictional approach at ISL wellfields turns a blind ey-to longstanding statutory and regulatory interpretations regarding licensable source material. The logical disconnects in the staffs interpretation have produced confusion in the regulated community and result in other unforeseen problems. Despite the conflicts and contradictions arising from an assertion ofjurisdiction over ISL wellfields described in this section, NRC staff have been reluctant to reevaluate io position. For example, the staff has stated that "[t)o continue the dialogue on these issues is diverting management and staff time."E However, NMA respectfully submits that it is an unsound regulatory approach for NRC to continue misapplying 1
the fundamentaljmisdictional definitions in the AEA: to make its ISL program credible.
l consistent, and legally supportable and to provide ISL licensees with greater certainly as to their l
regulatory obligations, the Commission must take a fresh look.
I As explained above, the subsurface activities at ISL facilities do not involve source
{
material within the scope of NRC's licensing jurisdiction. The entire UR operation below ground 1
is a type of mining and therefore is beyond the jurisdiction of NRC. Moreover, because the ore in solution generally contains an average ofless than 0.05% uranium at least until the IX unit, and most appropriately beyond at the elution stage, the solution is exempt from licensing requirements.
j i
l Even if NRC staff were able to overcome these obstacles by essentially ignoring AEA i
l legislative history regarding mining and NRC's definitions oflicensable source materials,it still l
E NRC Staff Response to Concerns Raised by the National Mining Association.
t a
131 h
.h
p I
1 I
must present a logical, consistent and predictable regulatory approach. Under one such an approach, if NRC ecatinues to assert that ISL mining really is a type of processing, then the underground ore body is like the mill at a conventional facility. This means that 1 ke a conventional mill, the underground ore body is 11e.(2) byproduct material. Accordingly, all wastewaters from the ISL wellfields would be 1le.(2) byproduct material. Apart from being I
consistent with the approach to contamination and wastes from conventional milling, this approach would avoid the effluent disposal difficulties faced by ISL operators by ensuring that only 1le.(2) materials are sent to tailings piles. However, another approach, and the better reasoned one, is for NRC to agres that it does not have jurisdiction over ISL wellfields until the pregnant lixiviant at a minimum reaches the IX but more appropriately when it reaches the elution stage at the mill.. This would mean that production bleed would be a mining waste, not a processing waste, and would allow this material to be disposed of pursuant to an NPDES permit.
Any sludges resulting from these effluent streams would qualify for RCRA's Bevill exclusion.
The only Ile.(2) byproduct material under this alternative would be discrete surface wastes from the production of yellowcake after the IX.
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132
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APPENDIX C EFFLUENT DISPOSAL AT LICENSED IN SITU LEACH URANIUM EXTRACTION FACILITIES dr.-
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a APPENDIX C EFFLUENT DISPOSAL AT LICENSED IN SITU LEACH URANIUM EXTRACTION FACILITIES
1.0 BACKGROUND
U.S. Nuclear Regulatory Commission (NRC)-licensed in suu leach (ISL) uranium extraction facilities generate liquid wastes (i.e., ef0uent) that require proper disposal. At ISL facilities, liqttid waste streams originate from the uranium recovery plant, from the production bleed, and from ground-water restoration activities. Production bleed is ground water extracted from the aquifer during the uranium recovery operation in excess ofiniected water to maintain a net ground-waterin00w into the recovery zone. Effluent produced by the uranium recovery plant and by production bleed is denned as " process wastewater"and is considered to be lle.(2) byproduct material. Ground-water effluent is produced at the end of a uranium recosery operation, during restoration of ground-water quality in the recovery zone. Ef0uent produced during ground-waterrestoration activitiesis considered to be "mine wastewater"and is not considered to be i le.(2) i byproduct material.This ef0uentis denned as naturally occurring radioactive material or technologically l
enhanced radioactive material. Therefore, although N RC may evaluate the environmennl impact associated with mine wastewater efnuent disposal. it does not license this material.
]
- At ISL facilities, management of liquid waste i as involved such disposal practices as release to surface waters, evaporation from lined ponds onsite land applications including irrigation, and injection in deep wc!!s. Staff policy for appropriate disposal of liquid effluents for these approaches is presented in this appendix.
2.0 ONSITE EVAPORATION An accurate determination (supported by acceptabledocumentation)of the origin of the waste water placed in a surface impoundment is important because the waste water origin determines the regulatory responsibilityfor the pond and the final disposal of the pond material. For a surface impoundment containing only process waste water or a mixture of process and mine waste water, it must be demonstrated that the proposed disposal facility is designed, operated, and decommissioned in a manner that prevents migration of waste from the surface impoundmentto subsurface soil, ground w ater, or surface water in accordance with 10 CFR Part 40, Appendix A. Applicantsmust also demonstratethat monitoringrequirementsare adecuately established to detect any migration of contaminants to the ground water.
Surface impoundmentscontainingonly process waste water or a mixture of process and mine water will be
' found acceptable if they comply with the design provisions for surface impoundments [ Criteria SA(1) j through 5 A(5)]; installation ofliners and leak detection (Criterion SE); seepage control (Criterion SF); and radium cleanup standards [ Criterion 6(6)] of 10 CFR Part 40. Appendix A. Detailed technical criteria to meet thesa requirements are provided in Sections 2.7,3.1,6.3 and 6.4 of this Standard Review Plan.
Surfaceimpoundmentsthat contain only mine waste water do not have to me.et the specine 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 C-1 NUREG-1569 r
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Appendix C
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evaluate the environmentalimpacts of the facility. Furthermore. based on es aluation of cumulative impacts.
NRC may require specific' license conditions to remediate the anticipated impacts of the surface impoundments.
- Solid waste from surface impoundmentsthat held only processing water is i le.(2)by product material. This material must be disposed ofin an existing tailings impoundment or I le.(2) disposal cell.
Solid waste from surface impoundments that held a mixture of process waste water and mine waste water shall be considered i Ic.(2) byproduct material if process waste water was the predominant source of water in the surface impoundment. This material must be disposed ofin an existing tailings impoundment or i l e.(2) disposal cell. lf the predominant source of water in the pond was not process waste water, the I le.(2) waste can be managed consistent with State mining water regulations.
l Use of this option is permitted under Section 83(b)(1)(A) of the Act for sites licensed after passage of i
UMTRCA, and Section 83(b) for sites licensed before UMTRCA was passed. In implementing these sections.the Commission was directed by Congress that for any site where transfer of title is not needed to protect public health and safety, the disposal site should be maintained pursuant to a license issued under Section 81 of the Act. Section 81 contains the provisions on the licensing of lle.(2) byproduct material.
Sec on 83(b)(1)(A)of the Act allows a waiverof transfer of title when appropriate on technical health and r
sai-ty grounds. When this done, the regulatory framework shifts to Section 81 of the Act, the general j
bypoduct licensing section. Under Section 81. the Commission may exempt the material from licensing, v0en it finds that the quantityof material and the use or user will not constitute an unreasonable risk to the health and safety of the public. In the case where the applicant can show that commingled surface impoundment residue can be disposed of under state mining regulations, and that the economic and equivalent protection requirements for any lle.(2) byproduct material specified in the " Introduction" to 10 CFR Part 40, Appendix A. have been met; the Commission may consider that commingled waste handled under state mining reclamationlaw need not be transferred for long-term care or licensed under Section 81 of the Act. %e introduction to 10 CFR Part 40. Appendix A. gives ISL license applicants flexibility in meeting technical criteria applicable to ISL waste disposal, by allowing applicants to propose alternatives j
to the Appendix A requirements. In making licensing decisions based on Appendix A requirements or alternatives thereto, the Commission may consider economic costs, among other factors. In addition, an exemption from long-term care for the site will be required. In conducting an evaluation using this alternative,the reviewerwill need to consult w ith the Commission to see ifit wants to exercise the discretion it has under Section 81 to except the material from licensing.
Solid waste frota surface impoundments that held only restoration water is naturally occurring radioactive 1
material or technologicallyenhanced radioactive material.NRC does not have regulatory authority over this material. However, the disposal of this waste must be described in enough detail for Staff to evaluate the enviromnentalimpacts 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.
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,Gt-Appendix C 3.0 RELEASE IN SURFACE WATERS The U.S. Environmental Protection Agency (EPA). in accordance with 40 CFR 440.34 does not allow new ISL facilities to discharge process waste water to navigable' waters. For release of mine waste waters to surface waters. N RC has no specific requirements.but the anticipated discharge must be described in enough detail to evaluate environmental impacts. In addition a national pollution discharge permit will need to be
- obtained from EPA or the appropriate State agency.
4.0 -
LAND APPLICATIONS For the land application ofprocess waste water the applicant must demonstrale that doses are maintained as I
low as reasonably achievable (ALARA) and within the dose limits in 10 CFR 20.1301. Proposed land f
i application activities must be cescribed in suf6cient detail to satisfythe NRC need to assess e.:vironmental impacts. Thir. may require analysis to assess the chemical toxicity of radioactive and nonradioactive constituents.Specifically, licensees must provide: (i) a description of the waste, including its physical and chemical properties that are important to risk evaluation; (ii) the proposed manner and conditions of w aste disposah Oii) projected concentrationsof radioactivecontaminantsin the soil: and (iv) projected impacts on ground-water and surface-water quality and on land uses, especially crops and vegetation. In addition,
- projected exposures and health risks that may be associated with radioactive constituents reaching the food chain must be analyzed to ensure that doses are ALARA and within the dose limits in 10 CFR 20.1301.
Proposals should include provisions for periodic soil surveys to s erify that contaminant levels in the soil do not exceed those projected.and should also include a remediation plan that can be implemented if projected levels are exceeded. Appropriate State and Federalagency permits must be obtained in accordance with the l
requirements of 10 CFR 20.2007, and the applicant must comply with NRC regulatory provisions for i
decommissioning.
Land application ofcommingled process waste water and mine waste water must comply with the previously described requirementsfor land application of process waste water. For the land application of mine waste water,the proposedland application activities must be describedin sufGeient detail to satisfy the NRC need to assess environmentalimpacts,and otherappropriate State and Federal agency permits must be obtained.
5.0 DEEP-WELL INJECTION Proposals for disposal of liquid w aste from process water by injection in deep wells must meet the regulatory
- provisions in 10 CFR 20.2002 and demonstrate that doses are ALARA and within the dose limits in 10 CFR20.13DI.The injection facility must be described in sufficient detail to satisfy the NRC need to asses <
environmental impacts. Specifically, proposals must include: (i) a description of the waste, including its physical and chemical properties important to risk evaluation;(ii) the proposed manner and conditions of waste disposal:(iii) an analysis and evaluation of pertinent information on the nature of the environment; (iv) information on the nature and location of other potentially affected facilities; and (v) analyses and procedures to ensure that doses are ALARA. and within the dose limits in 10 CFR 20.1301.
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Appendix C.
In addition, pursuant to the provisionsof 10 CFR 20.2007. proposals for disposal by injection in deep wells must also meet any other applicable Federal, State.- and local government regulations pertaining to deep w ell injection. Applicants must obtain any necessary permits for this purpose. In particular. proposals must satisfy the EPA regulatory provisions in 40 CFR Part 146: Underground Injection Control Program: Criteria and Standards, and applicants must obtain necessary permits from EPA and/or States authorized by EPA to enforce these provisions, in general applications that satisfy EPA regulations under the Underground injection Control Program and the applicable provisions of 10 CFR Part 20 will be approved by the staff.
Licensees and applicants disposing ofliquid w aste from process water by injection in det, wells are further required to comply with NRC regulatory provisions for decommissioning.
Deep well injection of commingled liquid waste from process waste water and mine waste water must comply with the previously described requirements for process waste water. For the deep well injection of mine waste water, the facility must be described in sufficient detail to satisfy the NRC need to assess environmentalimpacts. In addition,other applicable Federal, State, and local government permit.s for deep wellinjections,such as an EPA Undergroundinjection Control Permit, must be obtained. Abandonment of wells used to dispose ofliquid waste from process water or from commingled liquid waste should be done in accordance with the requirements of the State engineer.
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