ML20217D489

Ack Receipt of 990819 Addendum to Natl Mining Assoc White Paper Entitled Recommendations for Coordinated Approach to Regulating U Recovery Industry. Informs That Commission Reiterated Position Re Jursidiction in

ML20217D489
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Issue date:	10/04/1999
From:	Mcgaffigan E, The Chairman NRC COMMISSION (OCM)
To:	Sweeney K AFFILIATION NOT ASSIGNED
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ML20217D493	List: ML20217D489
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p' UNITED STATES NUCLEAR REGULATOPY COMMISSION .

WASHINGTON, D.C. 20066-0001 g.

g + October 4, 1999 CHARMAN 1

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Ms. Katie Sweeney

' Associate General Counsel.

National Mining Association 113017* Street, N.W.

Washington, D.C. 20036

Dear Ms. Sweeney:

The Commission has received the August 19,1999 Addendum to the National Mining Associations (NMA) White Paper entitled " Recommendations for a Coordinated Approach to Regulating the Uranium Recovery Industry," which the NMA submitted to the Commission in April 1998. In your cover letter, the NMA requested that the Commission address the status of byproduct material created prior to enactment of the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA); specifically, whether that material can be considered as 11e.(2) byproduct material under the Atomic Energy Act (AEA) and whether the Commission has jurisdiction over

. that material. i

' As you know, the Commission has before it a number of mCers relating to the regulation of the Uranium Recovery Industry, many of which were raised to the Commission by NMA in its original White Paper. However, the Commission most recently reiterated its position regarding Commission jurisdiction over this material in a July 29,1999 letter to Congressman Dingell in response to questions gonceming the Formerly Utilized Sites Remedial Action Program (FUSRAP). I have enclosed a copy of the July 9 letter for your information. We appreciate  ;

receiving the analysis set forth in the Addendum. We are carefully considering the issues you  !

have raised and anticipate reaching conclusions about them in the near future. We will respond to the Addendum at that time.

Sincerely,

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Edward McGaffigan, Jr.

Acting Chairman

Enclosure:

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' The Honorable John D. Dingell : .

.4 United States House of Representatives'  ;

. Washington, D.C.' 20515-6115 ~

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Dear Congressman Dingell:

I am responding to your letter da'ted July 12,1999, ir).which you discussed your concern about the U.S. Nuclear Regulatory Commission's (NRC's) regulation of the disposal of 11e.(2) . l byproduct material located at several Formerly Utilized Sites Remedial Action Program

, (FUSRAP). sites.' Under the Uranium Mill Tallings Radiation Control Act of 1978 (UMTRCA),  ;

. which added a new section 83 to the Atomic Energy Act of 1954 (AEA) as amended,'the NRC 1

.does not have authority to regulate the cleanup of this materialif the material was not  !

generated by an actMty licensed by the NRC on the effective date of UMTRCA (November 8, 1978), or thereafter.L (Note that I am using the term " pre-1978 section 11e.(2) byproduct .

material" in this letter in order to follow the terminology used in your letter, and assume that the y term is intended as a shorthand reference to residual radioactive material resulting from the l

processing of ores before the enactment of UMTRCA.)

. You expressed a concem that because of its pos'ition on pre-197811e.(2) byproduct material, the NRC has determined that such material may be sent to sites regulated under the Resource Conservation and Recovery Act (RCRA) rather than to disposal sites regulated by the NRC.

The NRC has stated only that there are no NRC rules or regulations that preclude disposal of  :

the~ material at a RCRA facility, and that disposal of this material is subject to the jurisdiction of other Federal and State agoncles. Additionally, there are NRC licensed facilities that have -

accepted pre-197811e.(2) byproduct material for direct disposal or processing and disposal in their mill tallings impoundments. For example, Envirocare of Utah has an NRC license that L allows it to accept some forms of this material directly for disposal. Pre-197811e.(2) byproduct  ;

material presented to NRC or Agreement State licensed facilities for disposal or processing l must comply with all requirements applicable to those facilities.

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With regard to your specific questions:

.1. How will this action improve protection of the public health and the environment?

Based 'on our knowledge of RCRA requirements, we believe thrat both RCRA landfills and NRC-regulated and licensed disposal facilities are protective. However, protection of the public .

. health and environment is improved with the availability of additional waste disposal options, resulting in the cleanup and release of these sites for other uses. Also, see our response to Question 5 below.-

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.y 2 3 2.E Please provide copies of the studies NRC used in making its health and safety e determinations. j

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- To our knowledge, no formal NRC studies have been conducted to compare RCRA landfills and NRC lice'n sed 11e.(2) byproduct disposal facilities. Rather, our position is based on our

knowledge of RCRA and NRC requirements and experience in regulating waste disposal. In, fact, NRC's groundwater protection requirements in 10 CFR Part 40, Appendix A, are based

. upon RCRA requirements in 40 CFR Part 264 (see,40 CFR 192).

~ 3. What are the qualitative differences in the radioactive constituents of pre- and post-1978 Section 11e(2) by-product material that compel NRC to require two distinct dispcsal

' 1 standards? . 1 4

The NRC does not have two distinct disposal standards in 10 CFR Part 40. It has no standard for FUSRAP material not within its legal competence. It is important to note that pre-1978 and

. post-197811e.(2) byproduct material have similar radiological characteristics, and in some

-cases, pose less risk than naturally-occurring radioactive material (NORM) disposed of at some RCRA facilities. It is possible that pre-197811e.(2) byproduct material at unlicensed sites may have been commingled with other radioactive or hazardous material that may or may not j currently be under NRC's jurisdiction. For post 197811e.(2) byproduct material, however, commingling has generally been prevented under NRC or Agreement State regulatory programs.

4. Please detail the differences between NRC requirements in radioactive waste disposal and

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- dispomi under RCRA, specifically:

a. What controls or protections exist at RCRA landfills that ensure the protection of public l'ealth, safety and the environment from radioactive byproduct material disposed at

'sach facilities?

The Environmental Protection Agency (EPA) has an ' extensive set of regulations in 40 CFR 260 through 272 for the management of hazardous wastes. RCRA disposal

' facilities rely in part on a system of liners and leachate detection and collection systems to prevent releases of hazardous materials to the environment. RCRA regulations for disposal also address monitoring and inspection, site selection, and  ;

other detailed requirements. Most, if not all, of these controls would also help to )

protect public health, safety, and the environment from radioactive byproduct material. j Indeed, nome RCRA facilities are licensed to receive NORM and exempt source l

. material, the controls for which would be similar to radioactive byproduct material.

. b' . ' What protections are in place to ensure worker health and safety from the risks of exposure to radioactivity at RCRA landfills that have accepted Section 11e.(2) byproduct material for disposal from the Army Corps of Engineers under the FUSRAP 4 program?.

EPA is in a better position to answer this question on the controls and protection of worker health and safety afforded by RCRA sites that may have accepted pre-1978 i /

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• s 11e.(2) byproduct material for disposal from the U.S. Army Corps of Engineers under the FUSRAP program.. .

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c. Do RCRA sites require a performance assessmen/t to demonstrate long-term protectiveness for the disposal of radionuclides?

We do not know of any performance assessment required by EPA under RCRA to demonstrate long-term protectiveness for disposal of radionuclides. ' However, EPA is in a better position to answer this question. We are aware that some RCRA sites accept NORM and exempt source material. As noted in response to question 4(a),

RCRA regulations for management of hazardous wastes would also be protective for l management of radioactive materials.

d. What type of groundwater modeling is required of RCRA sites to ensure protection of groundwater quality for at least 1,000 years?

i l Our understanding is that EPA's requirements in 40 CFR 264, which cover RCRA i facilities, do not require groundwater modeling. However, we understand that EPA

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l does have policies that allow the appropriate use of groundwater modeling as a means of demonstrating compliance with the closure provisions at RCRA regulated units and l the determination of groundwater Altemate Concentration Limits that are protective of human health and the environment. The specific applications and decisions based on the use of groundwater modeling will likely depend on the individual site conditions, and would be best answered by the EPA.  ;

e What type of public involvement have RCRA sites provided to allow for public input to )

I allow the disposal of radioactive waste in facilities that have not been permitted or  ;

I designed for the disposal of Section 11e.(2) byproduct material?

EPA is in a better position to answer this question on public involvement in the development of RCRA site requirements.

5. Overall, which sites are more protective of public health, safety and the environment relative ,

to the disposal of radioactive byproduct wastes, RCRA landfills or NRC-regulated and licensed disposal facilities?

i Based on our knowledge of RCRA requirements, we believe that both RCRA landfills and NRC-regulated and licensed disposal facilities are protective. While RCRA requires a more prescriptive design approach and relies, for example, on active institutional controls for long-term control of a site, NRC uses a more performance-based approach, pursuant to the requirements in UMTRCA, such that active, on-going maintenance is unnecessary to protect the public heath and safety and the environment from the effects of 11e.(2) byproduct material that has an extremely long half-life (e.g., about 80,000 year half-life for thorium-230). For that reason, EPA standards that have been incorporated in 10 CFR Part 40, Appendix A, require that uranium mill t&ilings impoundments be designed to be stable for 1,000 years, to the extent practicable, but in'no case, less than 200 years in general, we believe that NRC-regulated and licensed disposal facilities, because they are subject to requirements that focus on protection of public health,~ safety, and the environment from radiological hazards, may afford slightly more protection against radiological hazards.

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' 8. In a [ Director's Decision] dated March 26,1999, NRC's Office of Nuclear Material Safety and Safeguards concluded that a waiver under the Comprehensive Environmental l Response, Cleanup, and Liability Act of 1980 (CERCIA) does not ' apply to off-site FUSRAP l disposal activities. What steps has the Commission taken to regulate.off-site handling and i

deposal of S,ection 11e.(2) byproduct material?

l - The NRC has licensed Envirocare of Utah to provide disposal for inis type of material. The y

Commission has also addressed the disposal of this type of material in impoundments at specific milling sites. Any materialin the possession of an NRC or Agreement State licensee for disposal or for processing and disposal of the residuals from the processing in an NRC- ori Agreement State-licenced facility is subject to the NRC's or Agreement State's jurisdiction and -

l must meet all applicable Commission requirements. This includes, in the case of pre-1978

, 11e.(2) byproduct material, the applicable requirements in 10 CFR Parts 20 and 40 and the l

. requirements for storage, processing, and disposal in the applicable NRC or Agreement State

. license. -

7. Does NRC require additional Congressional direction or authority to regulate pre-1978 l Section 11e.(2) byproduct material? l 1

i We believe legislation would be required to give NRC authority to regulate Section 11e.(2)  ;

byproduct material in the FUSRAP program. The NRC has not sought authority or the necessary resources to regulate that material, and we note that the House Appropriations i l

Committee Report on the Energy.and Water Development Appropriations Bill for FY 2000 '

contains language that the NRC is not intended to license the Corps of Engineers in the Corps'

cleanup of contaminated FUSRAP sites. If Congress believes that the NRC :,hould regulate the E mill tallings resulting from activities not licensed by the NRC at the time or after UMTRCA was l enacted, we stand ready to provide information and assistance to Congress in amending the Act. NRC would need additional resources to regulate pre-1978 section 11e.(2) byproduct material. -

We trust this reply is responsive to your concems. Please contact me if I can be of further assistance.

. Sincerely, '

! , Greta Joy Dieus l cc: ' The Honorable Carol M. Browner i Administrator, Environmental Protection Agency

National Mining Association Foundnon For Amenca's Future 4:113 Sweersey Assoute Gener& Counwt t..ym u,m,g,,.,,,, Augun 19,1999 CD M E%e Honorable Greta J. Dieus Chairman g ag 99 91105. Nuclear Regulatory Commission Washington, DC 20555

Dear Chairman Dicus:

The National Mining Association (NMA) has recently completed an addendum to the White Paper, entitled " Recommendations for a Coordinated Approach to Regulating the Uranium Recovery Industry" that NMA submitted in April 1998. The addendum addresses the status of byproduct material created prior to the enactment of the Uranium Mill Tailings Radiation Control Act. Subsequent to the submission of the White Paper, a number of statements have emanated from the Nuclear Regulatory Commission that hppear to be inconsistent with the Commission's previously stated position that pre-1978 byproduct material qualifies as I le.(2) byproduct material. Due to the resulting confusion and because these issues are so fundamental to the Commission's jurisdiction over the uranium recovery industry, NMA requests that the Commission address these issues as quickly as possible. Specifically, NRC should clarify that pre-1978 byproduct materialis Ile.(2) byproduct material unour the Atomic Energy Act. Thank you for your consideration and if you have any questions, please contact me at 202/463-2627.

Sincerely,

&b [OOWf o Katie Sweeney Enclosure Cc: Commissioner Nils J. Diaz Commissioner Edward McGafligan, Jr.

Commissioner Jeffrey S. Merrifield Karen D. Cyr, General Counsel Carl J. Paperiello, Director, NMSS John T. Greeves, Director, Division of Waste Management Paul H. Lohaus, Deputy Director, OSP John Surmeier, Chief, Uranium Recovery Branch

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