View source for IA-98-296, Forwards Revised Section 6.4 That Commission Asked to Review Prior to Publication in Fr & FRN Containing Revised Guidance & Staff Analysis That Staff Intends to Publish Upon Commission Approval

{{Adams
| number = ML20204H073
| issue date = 10/24/1991
| title = Forwards Revised Section 6.4 That Commission Asked to Review Prior to Publication in Fr & FRN Containing Revised Guidance & Staff Analysis That Staff Intends to Publish Upon Commission Approval
| author name = Taylor J
| author affiliation = NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
| addressee name = Curtiss J, Remick F, Rogers K, Selin I, The Chairman
| addressee affiliation = NRC COMMISSION (OCM)
| docket = 
| license number = 
| contact person = 
| case reference number = FOIA-98-296
| document report number = NUDOCS 9903290002
| package number = ML20204H069
| document type = INTERNAL OR EXTERNAL MEMORANDUM, MEMORANDUMS-CORRESPONDENCE
| page count = 15
}}

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n UNITED STATES NUCLEAR REGULATORY COMMISSION
                                                                                            )    a ,
5              I                          WASHINGTON, D. C. 20555                          l 0                                                    OCT 2 41991                           )
                      /
MEMORANDUM FOR: The Chairman Commissioner Rogers                                                 !
Commissioner Curtiss                                                l Commissioner Remick                                                 j FROM:               James M. Taylor Executive Director for Operations

==SUBJECT:==
SECY-91-243 - DISPOSAL OF MATERIAL OTHER THAN ATOMIC ENERGY ACT OF 1954, AS AMENDED, SECTION 11e.(2) BYPRODUCT MATERIAL INTO URANIUM MILL TAILINGS IMPOUNDMENTS The Staff Requirements Memorandum on the subject Commission paper directed the staff to: 1) revise the prbposed guidance to include approval of appropriate 1
Low-Level Vaste Compacts, and 2) expand the discussion in Section 6.4 of the staff analysis. tnclosure 1 is the revised Section 6.4 that the Commission asked to review prior to publication in the Federal Register. Enclosure 2 is the Federal Register notice containing the revised guidance and staff analysis that the staff intends to publish upon Commission approval.
                                                                          /
aes ecutive Director for Operations

==Enclosures:==
: 1. Revised Section 6.4
: 2. Federal Register notice.
Uranium Mill facilities cc: SECY W
9903290002 990324 PDR     FOIA ALKEMA98-296           PDR Ek

4 Revised Section 6.4 6.4 Regulatory Issues The material being proposed for disposal in tailings im>oundments is material subject to the Commission's. authority under the Atomic Energy Act. It is if not all, soil contaminated with uranium, thorium, and associated mostly,(which radium                is a decay product of uranium and thorium) with radiological characteristicssimilartothoseoftailings[11e.(2)byproductmaterial).
The disposal of such material by a licensee is regulated by 10 CFR 20.301 (10 CFR 20.2001 in revised Part 20). [Itcouldalsobeviewedasadisposal                            ,
                                                         . On's of the permitted disposal methods is by under10CFR20.302(20.2002)]licenseeauthorizedtoreceiveitinalicense transfer of the material to a issued by the Con, mission or Agreeraent State. Uranium mill operators are
                    - licensed to possess tailings and to dispose of tailings in a tailings disposal impoundment. Because the tailings impoundments are already under license, an appropriate regulatory procedure to allow the disposal of other material is to amend the mill operator's' source material license to permit the receipt of source material in soil for direct disposal. These licenses and amendments thereto are issued by the Commission under 10 CFR Part 40, which also contains the criteria for maragement and closure of tailings disposal impoundments.
10 CFR Part 61 need not be. invoked for these disposals, notwithstanding that
                   - the material would be received by the mill operator licensee from others for disposal. 10 CFR Part 61 excludes from its coverage disposals of licensed material as provided'for in 10 CFR Part 20 [see,10 CFR 61.1(b)(3)]. Thus, disposal of material pursuant to the rules in 10 CFR Part 20 is a legal alternative to 10 CFR Part 61 when the nature of the material and the health, safety, and environmental consequences of the disposal make the use of 10 CFR Part 20 rules appropriate. Forthematerialsinvolvedhere(sourcematerial in. soil) the use of 10 CFR Part 20 in conjunction with amendment to 10 CFR Part 40 licenses is clearly appropriate. 10 CFR Part 40 contains all of the relevant regulations aertaining to the operation and closure of tailings impoundments, in whici the tailings remain the dominant concern. The substantive requirements of 10 CFR Part 61 would not add to the safety of the tailings impoundments even with the added material.
4 Enclosure 1

I. .-
                                                                                                                                )
L                                                       NUCLEAR REGULATORY COMMISSION                                           l Uranium Mill Facilities I
!                                       Notice of Request for Public Comments on Revised Guidance on Disposal of Non-Atomic Energy Act of 1954,                                        j Section 11e.(2) Byproduct Material in Tailings Impoundments AGENCY:          Nuclear Regulatory Comission.
ACTION:          Request for Public Comment.

==SUMMARY==
:' The Nuclear Regulatory Comission (NRC) is soliciting public comment on " Revised Guidance on Disposal of Non-Atomic Energy Act 3f 1954, Section 11e.(2) Byproduct Material in Tailings Impoundments."
DATE:            The coment period expires                                      .
!             ADDRESSES:              Send written coments to Myron Fliegel, Office of Nuclear
             - Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, I             Washington, DC 20555, or hand deliver to 11555 Rockville Pike, Rockville, MD between 7:30 a.m. and 4:15 p.m.
FOR FURTHER INFORMATION CONTACT:                           Myron Fliegel, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC                                        J 20555; telephone (301) 492-0555.
             - DISCUSSION:            The Nuclear Regulatory Commission (NRC) staff has prepared a
!              revision to its guidance, issued July 27, 1988, on the disposal in uranium mill                                  ,
tailings impoundments, of material other than that defined in section 11e.(2) of the Atomic Energy Act of 1954, as amended. The staff also prepared an analy.t is of the issues involved. After review of the revised guidance and analysis, the Commission decided to solicit comments from the public, NRC Agreement States, and Low-Level Waste Compacts. The Comission will consider these comments in deciding on revisions to the guidance.
Dated at Rockville, Maryland, this                             th day of                  1991.
For the Nuclear Regulatory Comissien, John Surmeier, Chief Uranium Recover Branch Division of Low-Level Waste Management and Decomissioning Office of Nuclear Material Safety and Safeguards t
Enclosure 2 l

                                                                                                        )
f SUPPLEMENTARY INFORMATION:
REVISED GUIDANCE ON DISPOSAL OF NON-ATOMIC ENERGY ACT OF 1954,
                               .SECTION 11e.(2) BYPRODUCT MATERIAL IN TAILINGS IMPOUNDMENTS The Policy guidance below applies only to disposal of source material           l
: 1.                                                                                      '
wastes that have radiolytic characteristics comparable to those of Atomic Energy Act (AEA) of 1954, Section 11e.(2) byproduct material [hereafter designated as "11e.(2)~ byproduct material"). Licensing of the receipt and disposal of such non-AEA, Section 11e.(2) byproduct material [hereafter
                        . designated as "non-11e.(2) byproduct material"] should be done under 10 CFR Part 40.
: 2.      Naturally occurring and accelerator produced material waste shall not be authorized for disposal in an 11e.(2) byproduct material impoundment.
: 3. Special nuclear material and AEA, Section 11e.(1) byproduct material           I waste, should not be considered as candidates for disposal in a tailings impoundment, without compelling reasons to the contrary. If staff believes that such material should be disposed of in a tailings i
impoundment in a specific instance, a request for approval by the             j Commission should be prepared.
: 4. The 11e.(2) licensee must demonstrate that the material is not subject to applicable Resource Conservation and Recovery Act regulationsorortoxic other U.S. Environmental Protection Agency standards for hazard <
wastes.                                                                       ,
: 5.      The '11e.I2) licensee must demonstrate that there are no Comprehensive Environmental Response, Compensation and Liability Act issaes related to thedisposalofthenon-11e.(2)byproductmaterial.
: 6.       The 11e.(2) licensee must demonstrate that there will be no significant environmental impact.
: 7.      The 11e.(2) licensee must dennstrate tha; the proposed disposal will not compromise the reclamation of the tailings impoundment by demonstrating compliance with the reclamation and closure criteria of Appendix A of Part 40.
: 8.       Thelle.(2)lict     see must provide documentation showing approval by the Regional LLW Compact in whose jurisdiction the waste originates as well as i approval by the Compact in whose jurisdiction the disposal site is located.
: 9.       The Department of Energy should be informed of the Nuclear Regulatory      '
Commission findings and proposed action, with an opportunity to provide l
l comments within 30 days, before granting the license amendment to the 11e.(2)' licensee.
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_      _     .         .__     _ . _ . _ . _ _            _ _ _ _ _ = _ _. _ . _ _ _ _ _ _ _
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: 10. Themechanismtoauthorizethedisposalofnon-11e.(2)byproductmaterial in a tailings impoundment is an amendment to the mill 11 cense under l              Part 40, authorizing the transfer of the material and its disposal. The license amendment should be supported with a staff analysis paper addressing the issues discussed in this guidance.
NRC STAFF ANALYSIS l                                                           OF DISPOSALOFNON-11e.(2)BYPRODUCTMATERIALINTOURANIUMMILLTAILINGSPILES l
: 1. INTRODUCTION l      Recently, the Nuclear Regulatory Comission (NRC) received several requests to i
allow activities other than the normal processing of native uranium ore at licensed uranium milling facilities. We have, in the past, received and, in some cases, approved, similar requests. TheserequestsnavefallenIntotwo
!      categories. The first category of requests is to allow the processing of i      feedstock material that is not usually thought of as ore, for the extraction of uranium, and then dispose of the resulting wastes and tailings in the facility's tailings p11e. The second category of requests is to allow the
!      direct disposal of non-Atomic Energy Act (AEA) of 1954, Section 11e.(2) byproduct material 3 [hereaf ter designated as "non-11e.(2) byproduct material"),
that was not generated onsite, into tailings piles.
In assessing these requests, the staff has raised two concerns related to tailings piles. The first concern is that the requested activity might result in complicated, dual, or even multiple regulation of the tailings pile, and the second concern is that the requested activity might jeopardize the ultimate transfer to the United States Government, for perpetual custody and maintenance, of the reclaimed tailings pile.
This analysis addresses the second category of requests, that is, requests to dispose of non-11e.(2) byproduct material in tailings piles. Issues relating
!      to such proposals requesting regulatory consideration of comingling of tailings with other radioactive wastes are discussed. This paper is limited to options involving commingling with existing tailings impoundments.
: 2. BACKGROUND The Uranium Mill Tailings Radiation Control Act (UMTRCA) of 1978 cmended the AEA to specifically include uranium and thorium mill tailings anu other wastes IFor the purposes of this paper, the term "non-11e.(2) byproduct material"
"         will be used to refer to radioactive waste ttat is similar to byproduct material, as defined in the AEA in Section 11e.(2), but is not legally considered to be 11e.(2) bypr oduct miterial.
i

  .t . .
4 from the process as radioactive material to be licensed by NRC. Specifically, the definition of byproduct material was revised in Section 11e.(2) of the AEA, to include "...the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content."
The definition of byproduct materia 12 in Section 11e.(2) of the AEA includes                     i all the wastes resulting from the milling process, not just the radioactive components. In addition. Title 11 of UMTRCA amended the AEA to explicitly exclude the requirement for' the Environmental Protection Agency (EPA) to permit 11e.(2) byproduct material under the Resource Conservation and Recovery Act (RCRA). The designation of 11e.(2) bygroduct material contrasts significantly with the situation for source material and other radioactive materials controlled under'the authority o# the AEA. This possibility for dual regulation by both NRC and EPA can become an issue when dealing with mixed hazardous wastes. As a result of UMTRCA, NRC amended 10 CFR Part 40 to regulate the uranium and thorium tailings and wastes from the milling processes.
Thus, under normal operation, all the tailings and wastes in an NRC or Agreement State licensed mill producing uranium or thorium are classified as "11e.(2) byproduct material," and are disposed of in tailings piles regulated under Part 40. They are not subject to EPA regulation, under RCRA. However, the EPA Cle6n Air Act regulations still result in direct EPA permit authority over the mill tailings, whether or not they are comingled with non-11e.(2) byproduct material waste.
The UMTRCA also required and provided for long-tem custcdy and surveillance of                    j the byproduct material and the land used for its disposal. The Department of                     4 Energy (DOE) is the Federal agency currently designated as the " custodial agency" by the AEA. However, the UMTRCA specifically referred only to 11e.(2)                    '
byproduct material. UMTRCA contains no provision allowing for the transfer of custody or title, and hence for eventual long-term custody and surveillance of other material, even if the material were no more radioactive or toxic than the uranium or thorium tailings themselves.
: 3. THE CATEGORY OF REQUESTS FOR COMMlHGLED DISPOSAL TO BE ADDRESSED Some licensees have proposed to directly dispose of radioactive wastes in existing uranium mill tailings sites. The materials vary from tailings from extraction processes for metals and rare-earth metals (such as copper, tantalum, columbium, zirconium) to spent resins from water-treatment processes.
2 Henceforth, byproduct material as defined in Section 11e.(2) of the AEA will be referred to as "11e.(2) byproduct material."
3Except in tM case of source naterial ore, source material consists only of the radioactive components of the waste, that is, uranium, thorium, or any combination of the two [10 CFR 40.4(h)].

l 1
l
!                                               l-However, because these materials did not result from the extraction or concentration of uranium or thorium from ore, they are not IIe.(2) byproduct material. Many of these " orphaned" wastes have elevated concentrations of source material, and unless otherwise exempted, require licensed control, if thematerialsexceedthe0.05-percentlicensable(contentofsourcematerialby weight) criterion in Part 40. Some of the wastes proposed for comingling                  ,
contain radioactive material, not regulated by NRC, that classify as-                    1
                                                                                               )
naturally-occurring and accelerator-produced radioactive material (NARM) and as such cannot be easily disposed of. In most of the proposals the staff has i
seen, disposal of these materials in. tailings impoundments would not significantly increase the effect on the public health, safety, and environment. Because of the relatively large volumes of these wastes, low-level waste disposal options are limited. These wastes are similar to tailings in              i volume, radioactivity, and toxicity. Therefore, some waste producers see the              l mill tailings disposal sites as providing an economical option for such                   '
disposal.
: 4. TYPES OF WASTES BEING PROPOSE 0 FOR DISPOSAL INTO TAILINGS PILES The NRC and the Agreement States continue to receive requests for the direct disposalofnon-11e.(2)byproductmaterialintouraniummilltailingspiles.
The-following general categories of non-11e.(2) byproduct material illustrate the requests submitted to NRC and the Agreement States for disposal into uranium mill tailings piles licensed under authority established by Title II of UMTRCA:.
4.1 Mine Wastes To mine uranium or other source material ore from underground or open-pit mines, operators frequently-need to dewater the mine cavities. This results in quantities of mine water with suspended or dissolved constituents, some of which are source material. After processing the mine water to satisfy National Pollution Discharge Elimination System or other release requirements, the resultant clean mine water is then discharged offsite. In some cases, the resulting water-treatment filter-cake or sludge' residues exceed the 0.05-percent licensable limit for source material. These residues do not satisfy the definition of 11e.(2) byproduct material, because they do not result from the extraction      l or concentration of uranium or thorium from ore.
NRC and the Agreement States have been contacted by licensees and waste
             -generators that desire to dispose of such filter-ccke or sludge residue directly into the tailings piles at' licensed uranium mill tailings sites.
NRChasindicatedthatsuchmaterialdoesnotconstitute11e.(2) byproduct material, j        4.2       Secondary P_rocess Wastes Frequently, natural ores that are processed for rare-earth Examples or other metals have significant concentrations of radioactive elements.                       l include copper, zirconium, and vanadium ores. Sometimes the uranium is l
l

l"                                                                                                                                                                              ,
captured in a side-stream recovery operation, in which uranium is preci>itated out of the pregnant solution, before or after the rare earth or oiler metal. Althoug1 this side-stream recovery operation is licensed by NRC, the tailings (which consist of the crushed depleted ore and the depleted solution af ter recovery of metals and rare earths) are not i
11e.(2)byproductmaterial. This is because the ore was not processed l                       primarily for its source material content, but for the rare earth or other metal. If the tails contain greater than 0.05 percent uranium and thorium, they would be source material and would thus be licensable and have to be disposed of in compliance with NRC regulations. NRC has
!                       received requests from NRC and Agreement State licensees to dispose of suchtailings(resultingfromprocessestoextractothermetals)into licensed uranium mill tailings piles.
4.3 Formerly Utilized Sites Remedial Action Program (FUSRAP)
These sit'es primarily processed materials, such as monazite sands, to         :
extrat.t thorium for commercial applications. Government contracts were        i 1ssued for thorium source material used in the Manhattan Engineering          l l                       District and early Atomic Energy Comission programs. Wastes resulting l
!                       from that processing and disposed of at these sites would qualify as l                        11e.(2) byproduct material. However, it is not clear that all the l
contaminated material at these sites resulted from processing of ore for thorium. At some sites there was also processing for rare earths and other metals. The DOE, which accepts responsibility for the FUSRAP materials, is investigating options for disposal and control of these materials. DOE estimates that a total of 1.7 million cubic yards of t
material is located at sites in 13 States. Recent proposals have l                         considered the transportation of FUSRAP materials from New Jersey to tailings piles ~at uranium mills in other States, such as Utah, Washington, !
and Wyoming.                                                                l 4.4 NARM These wastes result from a wide range of operations, but are not generally. regulated by the AEA. Past requests for disposal in uranium      '
l mill tailings ponds have included contaminated resins from ion-exchange well-water purifying operations. NRC has also received inquiries             j regarding the disposal of construction scrap and radium-contaminated soil from old commercial operations. The individual States usually administer     l the regulatory responsibility over NARM, but many other Federal agencies have jurisdictional responsibilities related to NARM. These include EPA, the Consumer Product Safety Commission, the Department of Health and Human ,
i i
Services, and the Department of Labor. There is a State-licensed NARM disposal facility in Clive, Utah, ifcensed to Envirocare of Utah, Inc.
l              Two common elements run through most of the requests we have received for direct disposal of non-11e.(2) byproduct material in tailings piles; the material is of low specific-activity, and the material is physically similar to
 ;             11e.(2) byproduct material. Most of the requests are for bulk material like 1:
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soil, crushed rock, or sludges, contaminated with source material in relatively low concentrations.
: 5. PREVIOUS STAFF GUIDANCE L            In response to a request from Region IV, the Dire: tor of the Office of Nuclear Material Safety and Safeguards (NMSS) provided guidance for addressing requests      l to allow the disposal of non-11e.(2) byproduct material in licensed mill tailings impoundments. The staff considered that the types of material proposed for such disposal could be separated into two categories: (1) NARM wastes; and (2) wastes generated by operations regulated under the AEA.
In the guidance, the staff concluded that it would not approve a policy of allowing disposal of NARM wastes in tailings impoundments. A major concern was that NRC did not have authority to regulate NARM. If States or EPA became involved in regulation of NARM, a situation with duplicative jurisdiction with j
!            respect to the commingled radioactive materials could be created. Furthermore, the..Comission's authority, under Section 84c of the AEA, to approve alternatives to requirements, if the NARM wastes were to violate standards, would be impaired.
i The staff viewed the other category, wastes generated by operations regulated under the AEA, as potentially acceptable in a mill tailings impoundment. Each such proposal should be considered on a case-specific basis. The guidance identified four findings that would have to be made before NRC would authorize l
such disposal.
l As a result of this guidance, present policy is that NRC will approve of proposed disposals of source material on their individual merits, and only if
!             the licensee can demonstrate the following:
I             a. 'The disposal will have no significant additional effects on public safety and health, and the environment.
: b. The disposal will not compromise the reclamation of the tailings impoundment. In effect, disposal must comply with the reclamation and closure criteria in part 40, Appendix A.
: c. The disposal will not result in the tailings becoming subject to RCRA or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
: d. DOE or the State agrees, in advance, to take title to the site, upon completion of the reclamation.
r            'The first two conditions are self-evident and will not be discussed further.
The other two. conditions can be significant obstacles to any routine decisions to allow such commingling of byproduct and non-11e.(2) byproduct materials
!              under UMTRCA, and are discussed, along with other issues, below.
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: 6. MAJOR ISSUES Although the technical, economic and societal advantages in some proposals have appeared to encourage such disposal of low specific-activity radioactive material into tailings piles, significant statutory and regulatory issues may complicate such % posal:
6.1 RCRA Authority and Mixed Waste The NRC and Agreement State licensed uranium and thorium milling facilities do not fall'under the jurisdiction of RCRA. The AEA explicitly excludes 11e.(2) byproduct material from RCRA permitting. However, radioactivewastesthatarenot11e.(2)b,rproductmaterialandcontain                                                ;
l hazardous wastes are mixed wastes and are not exempted from RCRA.
                    . Commingling RCRA-regulated wastes with tailings could result in the application of the EPA RCRA regulations and separate EPA-permitting authority. The licensee would have to comply with both EPA- and AEA-related regulations.
NRC has revised the regulations in Part 40 (including Appendix A) to conform to the appropriate portions of EPA's RCRA regulations. The UMTRCA, as amended, stipulates that regulations for byproduct material be consistentwiththeSolidWasteDisposalAct(SWDA). On November 13,                                                ;
1987, NRC conformed the regulations of Part 40 to the RCRA pravisions of                                       l the SWDA. However, if a licensee disposes of source material compounds or mixtures other the uranium or thorium ores, in the tailings piles, only                                       ;
the source material component of that compound or mixture would be                                            ,
excluded from the provisions of RCRA, if the compound or mixture qualifies as " hazardous." The bulk of such material would come under the purview of                                   ,
resulting in dual regulation of the tailings                         !
EPA      RCRA regulations,lude impoundment.       To prec                        this dual regulatory authority and the complications resulting from it, including potential conflicts in requirements, the staff will not approve co-disposal of non-11e.(2) byproduct material containing hazardous constituents, regulated under RCRA.-
6.2 Custody and Title Transfer UMTRCA, title to the 11e. Title           11,(Section202(Section83oftheAEA)stipulatesthats
: 2) byproduct               material and to the land used for the disposal of 11e.(2) byproduct material shall be transferred to either the United States Government or to the State in which the land is located.
UMTRCA identifies DOE, or any other agency so designated by the President, to be the custodial agency for the U.S. Government. However, at its option, the State may elect to become the custodial licensee of the site after closure.
The NRC staff has two concerns. relating to this transfer:
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: a.         The licensee for any site where the materials would be comingled would need strong assurances or permission from either the State or DOE that the commingling would not compromise the eventual transfer of title and custody..
and
: b.         The          license cannot be legally terminated, unless the custody)(A) of titlehavebeentransferredasstipulatedinSection83b(1 the AEA.           Commingling of wastes could complicate this transfer and, hence, the termination of the license.
Because of these conce.rns, NRC staff wrote to DOE regarding its position i                                        on such transfers. DOE's response of June 10, 1988 indicated its uncertainty regarding authority to accert custodial, transfer of tailings sites, where radioactive material not constituting 11e.(2) byproduct material has been commingled.                In further correspondence, of October 5, 1988, and March 16, 1990, the NRC staff requested more specificity from DOE.
DOE's initial responses addressed the general issue of DOE acceptance of a Title 11 site containing non-11e.(2) byproduct material. DOE would have l
l                                                                                                                                   ;
no objection to such a transfer provided it would not incur any additional costs related to the non-11e.(2) byproduct material. To ensure that there                  {
would be no additional costs due to the non-11e.(2) byproduct material,                    !
                                                                                                                                    )
DOE suggested that NRC make the following findings before transfer:
                                         -       That there is no adverse environmental impact resulting from the disposal of these wastes (e.g., that the reclamation of the impoundment           i i
will not be impacted or that there are no groundwater restoration issues).
                  -                       -       There are no outstanding environmental compliance issues under any applicableenvironmentallaw(e.g.,underRCRAorCERCLA).
Theseconditionswillbemetifthefirstthreeconditions(a-c) discussed in Section 5, above, are demonstrated.
By letter dated January 23, 1991, DOE responded to five specific questions NRC staff had raised. The questions focused on the quantities and concentrationsofseveralcategoriesofnon-11e.(2)byproductmaterial that DOE would find acceptable to dispose of in tailings impoundments without jeopardizing title transfer. DOE's response stated that criteria for determining acceptability should consider three issues:
: a.            Concentrations of hazardous constituents in the non-11e.(2) byproduct materials.
Tables showing concentrations typically found in tailings were presented and the statement made that acceptable concentrations could be selected from those tables. DOE also recommended that 1f l
l                                                                                                                                   1 l

..   .~             .
'                                                                                          concentrations in the non-11e.(2) byproduct material exceed those
                           ... adopted from the tables (or other sources)...", a risk assessment be performed.
1 Thus, DOE described a process, with an ultimate resort to risk                          l assessment, that could be used to determine acceptable concentrations ofconstituentsinnon-11e.(2)byproductmaterials. The first demonstration,discussedinSection5,above(thatthedisposalhave no significant additional effects on public safety and health and the environment), enc'om>assesthisDOEconsideration. Thus, this consideration will l>e met if the 1988 staff guidance is adhered to.
: b.            Impactoftheadditionalmaterialquantity(volume)ofnon-11e.(2) byproduct materials that the Title II site would have-to accommodate.
DOE stated that this determination would have to be made on a site-specific basis, considering cost, schedule, design capacity of                    i the impoundment, and the impact of errors and uncertainties in these                    l
                       . projections and estimates. This consideration will be satisfied by the first two demonstrations discussed in Section 5 above.
c.-          Possibility that Raden-222 releases from the disposal site would                         ,
exceed the limits specified in 40 CFR 192.32, as a result of                           !
l including non-11e.(2) byproduct materials in the Title II site.
The Radon-222' release limits in 40 CFR 192.32 are incorporated in Criterion 6 of Part 40, Appendix A. Thus, this consideration will be satisfied by the second demonstration discussed in Section 5 above.
Therefore, demonstration of the first three findings discussed in Section 5 above (health and safety, compliance with Appendix A, and no RCRA problems),sFouldresultinthefourthfinding(DOEacceptanceoftitle) being met.             However, there is one remaining concern related to DOE's acceptance of title to tailings impoundments containing non-11e.(2) byproduct material. None of DOE's responses to NRC on this question contains an unequivocal statement that, if NRC determines that the above discussed concerns and criteria are satisfied, DOE will accept title to such a site. For example, in the letter of November 16, 1990, DOE states "At this time, we would interpose no objection if NRC transferred..." At a meeting on December 11, 1990, NRC staff discussed this issue with DOE and a possible DOE concurrence on individual NRC decisions to allow non-11e.(2) byproduct material disposals. DOE responded by letter dated                            ,
December 24, 1990, that its concurrence would not be appropriate or necessary. ,However, in order to reduce the potential for future problems with transfer to DOE, NRC staff will notify DOE (with an opportunity to provide connents) of each impending decision to allow non-11e.(2) byproduct material disposal in a tailings . impoundment.
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6.3 Acceptable Wastes As discussed in Section 4 above, most of the requests for comingling non-11e.(2) byproduct material in tailings impoundments pertain to material similar to uranium mill tailings and wastes. These are usually bulk materials like soil, crushed rock, or sludges contaminated with low concentrations of source material or NARM.
For.the reasons discussed in Section 5 above, the staff will not approve commingling of NARM in tailings impoundments. However, current staff policy is to consider en a case-specific basis, wastes generated by operations regulated under the AEA. This would allow consideration of byproduct, as defined in Section 11e.(1) of the AEA, and spnial nuclear material (SNM) wastes,inadditiontosourcematerialwaste,(ordisposal in tailings impoundments. Recently, there have been inquiries to the staff about disposal of SNM-contaminated soils in tailings impoundments.
For the reasons discussed below, NRC staff will not normally approve disposal of 11e.(1) byproduct material (hereafter-referred to as
                      " byproduct material") or of SNM in tailings impoundments.
!                     Appendix A of Part 40 presents criteria for the disposal of 11e.(2) byproduct material. These criteria, to properly dispose of this material, were developed based on the physical, chemical, and radiological
;                     characteristics of the material. The basis for most of the requests to j                     commingle non-11e.(2) byproduct material in tailings impoundments is that
:                     the proposed material is similar in characteristics to 11e.(2) byproduct i                     material, but does not meet the definition, which is based on process and l                    history, rather than characteristics. Because of this similarity to j                     11e.(2) byproduct material, the criteria in Appendix A are appropriate to.
use, to ensure safe disposal of this material.
l                     This premise is only valid for'the types of materials discussed in Section 4, that is, bulk material whose primary radiological contamination is uranium, thorium, and radium in low concentrations. Wastes contaminated with byproduct material are sufficiently different that this premise may i
not be valid.
Soils contaminated with SNM may be similar to 11e.(2) byproduct material in physical, chemical, and radiological characteristics. There are, however,' issues related to the disposal of byproduct material or SNM-contaminated soils'in tailings impoundments that preclude routine approval, using the criteria in Appendix A of Part 40. Possession of byproduct material or SNM would have to be licensed under 10 CFR Parts 30, or 70, respectively, and not Part 40. For SNM, the issues of criticality, material control and accountability, and site security might also have to be addressed.
For these reasons, the staff will not approve the disposal of byproduct material or SNM through the process discussed in this paper. If there is a compelling reason to consider a specific proposed disposal of byproduct

i material or SN!i in a tailings impoundment, approval of the Commission will l
be required.
l 6.4 Regulatory Issues There are two regulatory issues that require consideration in developing this guidance:
: a. Inasmuch as the kind of material under consideration is within the purview of the States under the Low Level Radioactive Waste Policy Amendments Act of 1985 (LLRWPAA), the explicit approval of both the originating and the receiving Compact should be o>tained if the waste              1 l
is going anywhere but a designated Regional facility. Although this is not specifically a health and safety issue, it is an issue that                 ;
could cause problems for the licensee and perhaps interfere with                   l ultimate reclamation of the tailings. As a result, the policy should               ,
include a requirement that the Itcensee's submittal provide evidence               l I
of the Compact's approval of the proposed disposal.
: b. The material being proposed for disposal in tailings impoundments is               l material subject to the Commission's authority under the Atomic Energy Act.         It is mostly, if not all, soil contaminated with               ,
l uranium, thorium, and associated radium (which is a decay product of uranium and thorium) with radiological characteristics similar to thoseoftailings[11e.(2)byproductmaterial). The disposal of such material by a licensee is regulated by 10 CFR 20.301 (10 CFR 20.2001 inrevisedPart20). [It could also be viewed as a disposal under 10CFR20.302(20.2002)]. One of the permitted disposal methods is                    i by transfer of the material to a licensee authorized to receive it in              l a license issued by the Commission or Agreement State. Uranium mill                '
operators are licensed to possess tailings and to dispose of tailings in a tailings disposal impoundment. Because the tailings impoundments are already under license, an appropriate regulatory procedure to allow the disposal of other material is to amend the mill operator's source material license to permit the receipt of source material in soil for direct disposal. These licenses and amendments thereto are issued by the Connission under 10 CFR Part 40,             i which also contaN the criterie for nanagement and closure of                      I tailings disposal .mpoundments.
10 CFR Part 61 need not be invoked for these disposals, notwithstanding that the material would be received by the mill l
operator licensee from others for disposal. 10 CFR Part 61 excludes from its coverage disposals of licensed material as provided for in l
CFRPart20[see,10CFR61.1(b)(3)]. Thus, disposal of material l                       pursuant to the rules in 10 CFR Part 20 is a legal alternative to 10 CFR Part 61 when the nature of the material and the health, safety, and environmental consequences of the disposal make the use of 10 CFR Part 20 rules appropriate. For the materials involved here (source material in soil) the use of 10 CFR Part 20 in conjunction with t

(. y o.
I.    .
amendment to 10 CFR Part 40 licenses is clearly appropriate. 10 CFR Part 40 contains all of the relevant regulations pertaining to the operation and closure of tailings impoundments, in which the tailings remain the dominant concern. The substantive requirements of 10 CFR Part 61 would not add to the safety of the tailings impoundments even l
with the added material.
: 7. RESULTS OF STAFF ANALYSIS NRC staff identified the following course of action with respect to requests fordirectdisposalofnon-11e.(2)byproductmaterialintailingsimpoundments:
: 1. Each propotal will be treated on its individual merits.
: 2. The guidance discussed in Section 5, will be followed. Specifically, for each such co-disposal request, the staff will:
: a.        Reject the request if the non-11e.(2) byproduct material is NARM waste.
: b.        Determine whether the request is for bulk material contaminated with low concentrations of source material. If the request is for byproduct material or SNM, determine'if there is a compelling reason to grant the request. If so, a specific request for approval by the Commission will be prepared.
: c.        Determine whether the proposed disposal will cause significant additional effects to public safety, health and the environment.
: d.        Determine whether the proposed disposal will compromise the reclamation of the tailings impoundment.by determining whether                       ,
compliance with the reclamation and closure criteria stated in Part 40, Appendix A, will be ensured.
: e.         Not approve the request if the non-11e.(2) byproduct material contains hazardous constituents regulated under RCRA.
: f.         Notify DOE (with an opportunity to provide comments) if the staff intends to approve the proposed disposal.
: g.         The licensee must provide documentation showing approval by the Regional LLW Compact in whose jurisdiction the waste originates as well as_ approval by the Compact-in whose jurisdiction the disposal site is located.
3.. Approval of the request will be accomplished through an amendment to the Part 40 license of the impoundment owner.
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