RIS 2004-09, Status on Deferral of Active Regulation of Ground-Water Protection at in Situ Leach Uranium Extraction Facilities: Difference between revisions

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{{#Wiki_filter:UNITED STATESNUCLEAR REGULATORY COMMISSIONOFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDSWASHINGTON, D.C. 20555-0001June 7, 2004NRC REGULATORY ISSUE SUMMARY 2004-09STATUS ON DEFERRAL OF ACTIVE REGULATION OFGROUND-WATER PROTECTION AT IN SITU LEACHURANIUM EXTRACTION FACILITIES
{{#Wiki_filter:UNITED STATES
                            NUCLEAR REGULATORY COMMISSION
                OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS
                                WASHINGTON, D.C. 20555-0001 June 7, 2004 NRC REGULATORY ISSUE SUMMARY 2004-09 STATUS ON DEFERRAL OF ACTIVE REGULATION OF
              GROUND-WATER PROTECTION AT IN SITU LEACH
                        URANIUM EXTRACTION FACILITIES


==ADDRESSEES==
==ADDRESSEES==
Line 20: Line 25:


==INTENT==
==INTENT==
The U.S. Nuclear Regulatory Commission (NRC) is issuing this regulatory issue summary (RIS)to inform addressees and other interested parties of (1) the NRC's plans for the deferral of active regulation of ground-water protection at in situ leach (ISL) uranium extraction facilities;and (2) the comments received in response to RIS 2004-02 on this topic. This RIS supersedes RIS 2004-02 in its entirety. No specific action or written response is required.
The U.S. Nuclear Regulatory Commission (NRC) is issuing this regulatory issue summary (RIS)
to inform addressees and other interested parties of (1) the NRCs plans for the deferral of active regulation of ground-water protection at in situ leach (ISL) uranium extraction facilities;
and (2) the comments received in response to RIS 2004-02 on this topic. This RIS supersedes RIS 2004-02 in its entirety. No specific action or written response is required.


==BACKGROUND==
==BACKGROUND==
Over the past several years, the uranium recovery industry has expressed concern that theNRC regulation of ground-water at ISLs duplicates the ground-water protection programs required by the Safe Drinking Water Act (SDWA), as administered by the U.S. Environmental Protection Agency (EPA) or EPA-authorized States. EPA and the States protect ground-water quality through the Underground Injection Control (UIC) program, under the SDWA. Some EPA-authorized States require additional measures in their UIC programs that are more stringent than the Federal program.Historically, the NRC has imposed conditions on ISL operations to ensure that ground-waterquality is maintained during licensed activities and that actions are taken to ensure the restoration of ground-water quality before the license is terminated. The specific conditions imposed in ISL licenses have typically been the result of NRC's independent review of site- specific conditions at the ISLs, as documented in safety evaluation reports and appropriate environmental evaluations. In addition to the NRC's review, licensees must also obtain a UIC permit from EPA or the EPA-authorized State, before uranium recovery operations can begin. The EPA or the authorized State conducts many of the same types of reviews as the NRC. This is illustrated by the NRC incorporating ground-water protection limits from a State
Over the past several years, the uranium recovery industry has expressed concern that the NRC regulation of ground-water at ISLs duplicates the ground-water protection programs required by the Safe Drinking Water Act (SDWA), as administered by the U.S. Environmental Protection Agency (EPA) or EPA-authorized States. EPA and the States protect ground-water quality through the Underground Injection Control (UIC) program, under the SDWA. Some EPA-authorized States require additional measures in their UIC programs that are more stringent than the Federal program.
's permitting program into specificlicense requirements, after conducting its own review of the licensee
 
's ground-water protection program, including the use of State-imposed standards. The staff routinely accepts specific methodologies and guidance developed by the EPA or States for ground-water monitoring programs and well construction. RIS 2000-23, "Recent Changes to Uranium Recovery Policy,"dated November 30, 2000 (ML003773008) provides additional background information on this topic.Since the publication of RIS 2000-23, the NRC staff has held additional discussions with EPA;the States of Nebraska, New Mexico, and Wyoming; and the industry. As a result of these discussions, the staff prepared SECY-03-0186, "Options and Recommendations for NRCDeferring Active Regulation of Ground-Water Protection at In Situ Leach Uranium ExtractionFacilities," dated October 29, 2003 (ML031210874). In this SECY, the staff recommended that the NRC defer such active regulation to EPA-authorized non-Agreement States through the development of a Memorandum of Understanding (MOU or agreement) with individually affected States. In a Staff Requirements Memorandum dated November 19, 2003, (ML033230208) the Commission approved the staff
Historically, the NRC has imposed conditions on ISL operations to ensure that ground-water quality is maintained during licensed activities and that actions are taken to ensure the restoration of ground-water quality before the license is terminated. The specific conditions imposed in ISL licenses have typically been the result of NRCs independent review of site- specific conditions at the ISLs, as documented in safety evaluation reports and appropriate environmental evaluations.
's recommendation and directed the staff todevelop a RIS to obtain public comment about this proposal before proceeding with the development of an MOU with each appropriate State.On February 23, 2004, NRC issued RIS 2004-02 (ML040550197) to request that, on avoluntary basis, addressees and other interested parties submit information pertaining to the proposed deferral of active regulation of ground-water protection at ISL uranium extraction facilities. A notice of availability was published in the Federal Register on March 12, 2004(69 FR 11899). The comment period closed on April 11, 2004.
 
In addition to the NRCs review, licensees must also obtain a UIC permit from EPA or the EPA-
authorized State, before uranium recovery operations can begin. The EPA or the authorized State conducts many of the same types of reviews as the NRC. This is illustrated by the NRC
incorporating ground-water protection limits from a States permitting program into specific license requirements, after conducting its own review of the licensees ground-water protection program, including the use of State-imposed standards. The staff routinely accepts specific methodologies and guidance developed by the EPA or States for ground-water monitoring programs and well construction. RIS 2000-23, Recent Changes to Uranium Recovery Policy, dated November 30, 2000 (ML003773008) provides additional background information on this topic.
 
Since the publication of RIS 2000-23, the NRC staff has held additional discussions with EPA;
the States of Nebraska, New Mexico, and Wyoming; and the industry. As a result of these discussions, the staff prepared SECY-03-0186, Options and Recommendations for NRC
Deferring Active Regulation of Ground-Water Protection at In Situ Leach Uranium Extraction Facilities, dated October 29, 2003 (ML031210874). In this SECY, the staff recommended that the NRC defer such active regulation to EPA-authorized non-Agreement States through the development of a Memorandum of Understanding (MOU or agreement) with individually affected States. In a Staff Requirements Memorandum dated November 19, 2003, (ML033230208) the Commission approved the staffs recommendation and directed the staff to develop a RIS to obtain public comment about this proposal before proceeding with the development of an MOU with each appropriate State.
 
On February 23, 2004, NRC issued RIS 2004-02 (ML040550197) to request that, on a voluntary basis, addressees and other interested parties submit information pertaining to the proposed deferral of active regulation of ground-water protection at ISL uranium extraction facilities. A notice of availability was published in the Federal Register on March 12, 2004
(69 FR 11899). The comment period closed on April 11, 2004.


==SUMMARY OF ISSUE==
==SUMMARY OF ISSUE==
The NRC plans to enter into an MOU, with each State, to defer active regulation of bothlicensing and inspection activities for ground-water protection. This process began with an initial official contact with the appropriate program director in each State, by the Director of the Office of Nuclear Material Safety and Safeguards, requesting agreement to begin the MOU
The NRC plans to enter into an MOU, with each State, to defer active regulation of both licensing and inspection activities for ground-water protection. This process began with an initial official contact with the appropriate program director in each State, by the Director of the Office of Nuclear Material Safety and Safeguards, requesting agreement to begin the MOU
process (ML033570409 and ML033570472). As part of the agreement process, the NRC staff will work with each State to compare its ground-water protection program with that of NRC
process (ML033570409 and ML033570472). As part of the agreement process, the NRC staff will work with each State to compare its ground-water protection program with that of NRCs.
's. This comparison will examine the general review areas and staffing of each State, similar to the Integrated Material Performance Evaluation Program review performed for Agreement States. The NRC staff will use NUREG-1569, "Standard Review Plan for In Situ Leach UraniumExtraction License Applications," as the basis for performing the programmatic comparison witheach State. Areas identified as essentially equivalent to the NRC program will be included in the MOU as programmatic areas where NRC will defer active regulatory oversight to the State.
 
This comparison will examine the general review areas and staffing of each State, similar to the Integrated Material Performance Evaluation Program review performed for Agreement States.
 
The NRC staff will use NUREG-1569, Standard Review Plan for In Situ Leach Uranium Extraction License Applications, as the basis for performing the programmatic comparison with each State. Areas identified as essentially equivalent to the NRC program will be included in the MOU as programmatic areas where NRC will defer active regulatory oversight to the State.
 
Any areas determined not essentially equivalent to the NRC program will be identified in the MOU as areas where the NRC will continue its direct regulatory oversight. Only the production well-field ground-water protection aspects of the NRCs licensing and inspection programs will be deferred to the State. The NRC will enter into an MOU with the State, if the NRC concludes that the States ground-water protection program is equivalent to the NRCs program, providing adequate protection of public health and safety, and the environment.
 
The following table provides information concerning the currently operating ISLs in non- Agreement States.
 
Currently Licensed and Operating ISLs in Non-Agreement States Licensee                    State            License No.            Docket No.
 
Crow Butte Resources                Nebraska              SUA-1543              040-008943 Cogema                              Wyoming              SUA-1341              040-008502 Power Resources, Inc.              Wyoming              SUA-1548            040-008964 Based on the NRC staffs experience in working with Nebraska and Wyoming, it expects that the comparison will result in finding that these States ground-water protection programs are equivalent to NRCs.
 
On successfully completing an MOU with a State, the NRC will then amend each of the affected ISL licenses at the request of each licensee. The amendment will remove, as appropriate, the specific conditions pertaining to ground-water protection. Each amendment will be subject to an environmental review and a notice of opportunity for a hearing, in accordance with current NRC policy and practices. Thereafter, the NRC will periodically document its review of UIC
permits and State inspection reports, as well as State-identified program changes, to determine that the State continues to conduct an acceptable program in accordance with the MOU. The NRC will continue to conduct licensing reviews and inspections for public and worker radiation safety at the affected ISL facilities.
 
Although implementation of this approach will initially require the expenditure of additional NRC
staff resources to achieve the agreements before any resource savings will be realized, the approach offers several advantages. The current dual regulatory burden of the NRC and State reviews of the licensees will be eliminated once the agreement is finalized. Public health, safety, and environmental protection, with regard to ground-water, will be assured at licensed ISL facilities through the States direct oversight. At the same time, the NRC will retain its authority to regulate ground-water protection at ISLs and can re-enter active regulation in this area if a States program became inadequate. The effectiveness and efficiency of the NRCs ISL licensing program will be enhanced by making its active role clear to the licensee and other stakeholders. In time, it is anticipated that the initial outlay of resources to develop the MOUs will be more than offset by the gains from reductions of reviews.
 
Summary of Comments on RIS 2004-02:
Comments on the proposal described in RIS 2004-02 were received from the States of New Mexico, Texas, and Wyoming; the Wyoming Mining Association; the National Mining Association (NMA); the Nuclear Energy Institute (NEI); Crow Butte Resources, Inc.; and Power Resources, Inc. All comments were favorable and supported NRCs proposal to defer active regulation in this area using the MOU process discussed in RIS 2004-02.


Any areas determined not essentially equivalent to the NRC program will be identified in the MOU as areas where the NRC will continue its direct regulatory oversight.  Only the production well-field ground-water protection aspects of the NRC
NEI commented that the NRC should relinquish regulation of all in-situ well-field operations.
's licensing and inspection programs willbe deferred to the State. The NRC will enter into an MOU with the State, if the NRC concludes that the State
 
's ground-water protection program is equivalent to the NRC
NEI stated that such operations are equivalent to the mining of ores in conventional open pit or underground operations that are not subject to NRC licensing. In response, NRC staff pointed out that ISL operations involve the in-place (i.e., in-situ) processing of ores to extract (i.e.,
's program, providingadequate protection of public health and safety, and the environment.The following table provides information concerning the currently operating ISLs in non-Agreement States.Currently Licensed and Operating ISLsin Non-Agreement StatesLicenseeStateLicense No.Docket No.Crow Butte ResourcesNebraskaSUA-1543040-008943 CogemaWyomingSUA-1341040-008502 Power Resources, Inc.WyomingSUA-1548040-008964Based on the NRC staff
recover) the uranium; therefore, unlike conventional open pit or underground mining in which the ore is removed from the earth and the uranium is later extracted from the ore in a mill, the extraction of the uranium for ISL processes occurs directly in the ore deposit. The NRC has jurisdiction and licensing authority over the milling of uranium (as defined in 10 CFR 40.4).
's experience in working with Nebraska and Wyoming, it expects thatthe comparison will result in finding that these States
' ground-water protection programs areequivalent to NRC
's.On successfully completing an MOU with a State, the NRC will then amend each of the affectedISL licenses at the request of each licensee.  The amendment will remove, as appropriate, the specific conditions pertaining to ground-water protection.  Each amendment will be subject to an environmental review and a notice of opportunity for a hearing, in accordance with current NRC policy and practices.  Thereafter, the NRC will periodically document its review of UIC
permits and State inspection reports, as well as State-identified program changes, to determine that the State continues to conduct an acceptable program in accordance with the MOU.  The NRC will continue to conduct licensing reviews and inspections for public and worker radiation safety at the affected ISL facilities.  Although implementation of this approach will initially require the expenditure of additional NRCstaff resources to achieve the agreements before any resource savings will be realized, the approach offers several advantages.  The current dual regulatory burden of the NRC and State reviews of the licensees will be eliminated once the agreement is finalized.  Public health, safety, and environmental protection, with regard to ground-water, will be assured at licensed ISL facilities through the State
's direct oversight.  At the same time, the NRC will retain itsauthority to regulate ground-water protection at ISLs and can re-enter active regulation in this area if a State
's program became inadequate.  The effectiveness and efficiency of the NRC
's ISL licensing program will be enhanced by making its active role clear to the licensee and other stakeholders.  In time, it is anticipated that the initial outlay of resources to develop the MOUswill be more than offset by the gains from reductions of reviews.Summary of Comments on RIS 2004-02:Comments on the proposal described in RIS 2004-02 were received from the States of NewMexico, Texas, and Wyoming; the Wyoming Mining Association; the National Mining Association (NMA); the Nuclear Energy Institute (NEI); Crow Butte Resources, Inc.; and Power Resources, Inc.  All comments were favorable and supported NRC
's proposal to defer activeregulation in this area using the MOU process discussed in RIS 2004-02. NEI commented that the NRC should relinquish regulation of all in-situ well-field operations. NEI stated that such operations are equivalent to the mining of ores in conventional open pit or underground operations that are not subject to NRC licensing. In response, NRC staff pointed out that ISL operations involve the in-place (i.e., in-situ) processing of ores to extract (i.e.,recover) the uranium; therefore, unlike conventional open pit or underground mining in which the ore is removed from the earth and the uranium is later extracted from the ore in a mill, the extraction of the uranium for ISL processes occurs directly in the ore deposit. The NRC has jurisdiction and licensing authority over the milling of uranium (as defined in 10 CFR 40.4).  
Therefore, we have concluded that for the NRC to relinquish its regulatory authority over the extraction portion of ISL operations, either a State must enter into an agreement with the NRC
Therefore, we have concluded that for the NRC to relinquish its regulatory authority over the extraction portion of ISL operations, either a State must enter into an agreement with the NRC
which provides for the discontinuance of the NRC
which provides for the discontinuance of the NRCs regulatory authority over the activities associated with uranium and thorium recovery facilities pursuant to section 247b. of the Atomic Energy Act of 1954, as amended (AEA), or a statutory change would be necessary. We are not convinced at this time that a statutory change would be a cost effective undertaking.
's regulatory authority over the activitiesassociated with uranium and thorium recovery facilities pursuant to section 247b. of the Atomic Energy Act of 1954, as amended (AEA), or a statutory change would be necessary. We are not convinced at this time that a statutory change would be a cost effective undertaking.NMA commented that the process described in RIS 2004-02 could be rather lengthy. NMAencouraged the NRC to use the appropriate personnel and needed resources to move forward with the process as expeditiously as possible. In response, NRC will apply the available resources that are needed, consistent with its budget and other priority work. The State of Wyoming commented on the contents of the example MOU that was included asan attachment to RIS 2004-02. The State of New Mexico commented that a detailed review of the example MOU would be needed before entering into an agreement. Each MOU will be unique because of circumstances unique to each State. Because of these circumstances, discussions with each State will be necessary to develop final MOUs; therefore, an example MOU is not included with this RIS. Similarly, the States
 
' comments on the example MOU have not been included. This RIS requires no specific action nor written response. If you have any questions about thissummary, please contact the technical contact listed below./RA/Robert C. Pierson, DirectorDivision of Fuel Cycle Safety and Safeguards Office of Nuclear Material Safety and Safeguards
NMA commented that the process described in RIS 2004-02 could be rather lengthy. NMA
encouraged the NRC to use the appropriate personnel and needed resources to move forward with the process as expeditiously as possible. In response, NRC will apply the available resources that are needed, consistent with its budget and other priority work.
 
The State of Wyoming commented on the contents of the example MOU that was included as an attachment to RIS 2004-02. The State of New Mexico commented that a detailed review of the example MOU would be needed before entering into an agreement. Each MOU will be unique because of circumstances unique to each State. Because of these circumstances, discussions with each State will be necessary to develop final MOUs; therefore, an example MOU is not included with this RIS. Similarly, the States comments on the example MOU have not been included. This RIS requires no specific action nor written response. If you have any questions about this summary, please contact the technical contact listed below.
 
/RA/
                                              Robert C. Pierson, Director Division of Fuel Cycle Safety and Safeguards Office of Nuclear Material Safety and Safeguards  


===Technical Contact:===
===Technical Contact:===
John H. Lusher, NMSSPhone: 301-415-7694 E-mail: jhl@nrc.govAttachment: List of Recently Issued NRC Regulatory Issue Summaries June 7, 2004This RIS requires no specific action nor written response. If you have any questions about thissummary, please contact the technical contact listed below./RA/Robert C. Pierson, DirectorDivision of Fuel Cycle Safety and Safeguards Office of Nuclear Material Safety and Safeguards
John H. Lusher, NMSS
                    Phone: 301-415-7694 E-mail: jhl@nrc.gov Attachment: List of Recently Issued NRC Regulatory Issue Summaries June 7, 2004 This RIS requires no specific action nor written response. If you have any questions about this summary, please contact the technical contact listed below.
 
/RA/
                                                          Robert C. Pierson, Director Division of Fuel Cycle Safety and Safeguards Office of Nuclear Material Safety and Safeguards  


===Technical Contact:===
===Technical Contact:===
John H. Lusher, NMSSPhone: 301-415-7694 E-mail: jhl@nrc.govAttachment: List of Recently Issued NRC Regulatory Issue Summaries*see previous concurrenceML041540558OFCFCFBTechEdFCFBOGCSTPFCFBFCSSNAMED.Diaz*E Kraus*R.Nelson*M.Schwartzvia emailP.Lohaus*via emailG.JanoskoR.PiersonDATE5/24/045/12/045/24/045/25/04 5/21/045/27/045/28/04OFFICIAL RECORD COPY  
John H. Lusher, NMSS
______________________________________________________________________________________OL = Operating License CP = Construction PermitAttachment LIST OF RECENTLY ISSUEDNRC REGULATORY ISSUE SUMMARIES
                          Phone: 301-415-7694 E-mail: jhl@nrc.gov Attachment: List of Recently Issued NRC Regulatory Issue Summaries
_____________________________________________________________________________________Regulatory Issue   Date of Summary No.       Subject IssuanceIssued to
    *see previous concurrence                            ML041540558 OFC    FCFB        TechEd          FCFB          OGC            STP            FCFB          FCSS
_____________________________________________________________________________________2004-08Results of the License TerminationRule Analysis05/28/2004All holders of operating licensesfor nuclear power reactors, research and test reactors, as well as decommissioning sites.2004-07Release of Final Review Standard(RS)-002, "ProcessingApplications for Early Site Permits
NAME    D.Diaz*     E Kraus*         R.Nelson*     M.Schwartz    P.Lohaus*     G.Janosko      R.Pierson via email      via email DATE    5/24/04      5/12/04          5/24/04        5/25/04       5/21/04        5/27/04        5/28/04 OFFICIAL RECORD COPY
"05/19/2004All holders of operating licensesfor nuclear power reactors, all applicants for early site permits (ESPs), and all prospective vendors of nuclear power plants in the United States.2004-06Independent Survey of PowerReactor Licensees04/16/2004All holders of operating licensesfor nuclear power reactors except those who have permanently ceased operations and have certified that fuel has been permanently removed from the reactor vessel.2004-05Grid Reliability and the Impact onPlant Risk and the Operability of Offsite Power04/15/2004All holders of operating licensesfor nuclear power reactors except those who have permanently ceased operations and have certified that fuel has been permanently removed from the reactor vessel.2004-04Use of Code Cases N-588, N-640,and N-641 in Developing Pressure-Temperature Operating Limits04/05/2004All holders of construction permitsor operating licenses for nuclear power reactors except those who have permanently ceased operations and have certified that fuel has been permanently removed from the reactor vessel.Note:NRC generic communications may be received in electronic format shortly after they areissued by subscribing to the NRC listserver as follows:To subscribe send an e-mail to <listproc@nrc.gov >, no subject, and the followingcommand in the message portion:subscribe gc-nrr firstname lastname
 
Attachment LIST OF RECENTLY ISSUED
                                  NRC REGULATORY ISSUE SUMMARIES
_____________________________________________________________________________________
Regulatory Issue                                           Date of Summary No.                 Subject                     Issuance              Issued to
_____________________________________________________________________________________
2004-08          Results of the License Termination        05/28/2004 All holders of operating licenses Rule Analysis                                        for nuclear power reactors, research and test reactors, as well as decommissioning sites.
 
2004-07          Release of Final Review Standard           05/19/2004 All holders of operating licenses (RS)-002, Processing                                for nuclear power reactors, all Applications for Early Site Permits                  applicants for early site permits (ESPs), and all prospective vendors of nuclear power plants in the United States.
 
2004-06          Independent Survey of Power                04/16/2004 All holders of operating licenses Reactor Licensees                                    for nuclear power reactors except those who have permanently ceased operations and have certified that fuel has been permanently removed from the reactor vessel.
 
2004-05          Grid Reliability and the Impact on        04/15/2004 All holders of operating licenses Plant Risk and the Operability of                    for nuclear power reactors except Offsite Power                                        those who have permanently ceased operations and have certified that fuel has been permanently removed from the reactor vessel.
 
2004-04          Use of Code Cases N-588, N-640,           04/05/2004 All holders of construction permits and N-641 in Developing                               or operating licenses for nuclear Pressure-Temperature Operating                       power reactors except those who Limits                                                have permanently ceased operations and have certified that fuel has been permanently removed from the reactor vessel.
 
Note:             NRC generic communications may be received in electronic format shortly after they are issued by subscribing to the NRC listserver as follows:
                  To subscribe send an e-mail to <listproc@nrc.gov >, no subject, and the following command in the message portion:
                                    subscribe gc-nrr firstname lastname
______________________________________________________________________________________
OL = Operating License CP = Construction Permit
}}
}}


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Latest revision as of 02:06, 24 November 2019

Status on Deferral of Active Regulation of Ground-Water Protection at in Situ Leach Uranium Extraction Facilities
ML041540558
Person / Time
Issue date: 06/07/2004
From: Pierson R
NRC/NMSS/FCSS
To:
References
RIS-04-009
Download: ML041540558 (8)
v • d • e


UNITED STATES

NUCLEAR REGULATORY COMMISSION

OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS

WASHINGTON, D.C. 20555-0001 June 7, 2004 NRC REGULATORY ISSUE SUMMARY 2004-09 STATUS ON DEFERRAL OF ACTIVE REGULATION OF

GROUND-WATER PROTECTION AT IN SITU LEACH

URANIUM EXTRACTION FACILITIES

ADDRESSEES

All holders of materials licenses for uranium and thorium recovery facilities.

INTENT

The U.S. Nuclear Regulatory Commission (NRC) is issuing this regulatory issue summary (RIS)

to inform addressees and other interested parties of (1) the NRCs plans for the deferral of active regulation of ground-water protection at in situ leach (ISL) uranium extraction facilities;

and (2) the comments received in response to RIS 2004-02 on this topic. This RIS supersedes RIS 2004-02 in its entirety. No specific action or written response is required.

BACKGROUND

Over the past several years, the uranium recovery industry has expressed concern that the NRC regulation of ground-water at ISLs duplicates the ground-water protection programs required by the Safe Drinking Water Act (SDWA), as administered by the U.S. Environmental Protection Agency (EPA) or EPA-authorized States. EPA and the States protect ground-water quality through the Underground Injection Control (UIC) program, under the SDWA. Some EPA-authorized States require additional measures in their UIC programs that are more stringent than the Federal program.

Historically, the NRC has imposed conditions on ISL operations to ensure that ground-water quality is maintained during licensed activities and that actions are taken to ensure the restoration of ground-water quality before the license is terminated. The specific conditions imposed in ISL licenses have typically been the result of NRCs independent review of site- specific conditions at the ISLs, as documented in safety evaluation reports and appropriate environmental evaluations.

In addition to the NRCs review, licensees must also obtain a UIC permit from EPA or the EPA-

authorized State, before uranium recovery operations can begin. The EPA or the authorized State conducts many of the same types of reviews as the NRC. This is illustrated by the NRC

incorporating ground-water protection limits from a States permitting program into specific license requirements, after conducting its own review of the licensees ground-water protection program, including the use of State-imposed standards. The staff routinely accepts specific methodologies and guidance developed by the EPA or States for ground-water monitoring programs and well construction. RIS 2000-23, Recent Changes to Uranium Recovery Policy, dated November 30, 2000 (ML003773008) provides additional background information on this topic.

Since the publication of RIS 2000-23, the NRC staff has held additional discussions with EPA;

the States of Nebraska, New Mexico, and Wyoming; and the industry. As a result of these discussions, the staff prepared SECY-03-0186, Options and Recommendations for NRC

Deferring Active Regulation of Ground-Water Protection at In Situ Leach Uranium Extraction Facilities, dated October 29, 2003 (ML031210874). In this SECY, the staff recommended that the NRC defer such active regulation to EPA-authorized non-Agreement States through the development of a Memorandum of Understanding (MOU or agreement) with individually affected States. In a Staff Requirements Memorandum dated November 19, 2003, (ML033230208) the Commission approved the staffs recommendation and directed the staff to develop a RIS to obtain public comment about this proposal before proceeding with the development of an MOU with each appropriate State.

On February 23, 2004, NRC issued RIS 2004-02 (ML040550197) to request that, on a voluntary basis, addressees and other interested parties submit information pertaining to the proposed deferral of active regulation of ground-water protection at ISL uranium extraction facilities. A notice of availability was published in the Federal Register on March 12, 2004

(69 FR 11899). The comment period closed on April 11, 2004.

SUMMARY OF ISSUE

The NRC plans to enter into an MOU, with each State, to defer active regulation of both licensing and inspection activities for ground-water protection. This process began with an initial official contact with the appropriate program director in each State, by the Director of the Office of Nuclear Material Safety and Safeguards, requesting agreement to begin the MOU

process (ML033570409 and ML033570472). As part of the agreement process, the NRC staff will work with each State to compare its ground-water protection program with that of NRCs.

This comparison will examine the general review areas and staffing of each State, similar to the Integrated Material Performance Evaluation Program review performed for Agreement States.

The NRC staff will use NUREG-1569, Standard Review Plan for In Situ Leach Uranium Extraction License Applications, as the basis for performing the programmatic comparison with each State. Areas identified as essentially equivalent to the NRC program will be included in the MOU as programmatic areas where NRC will defer active regulatory oversight to the State.

Any areas determined not essentially equivalent to the NRC program will be identified in the MOU as areas where the NRC will continue its direct regulatory oversight. Only the production well-field ground-water protection aspects of the NRCs licensing and inspection programs will be deferred to the State. The NRC will enter into an MOU with the State, if the NRC concludes that the States ground-water protection program is equivalent to the NRCs program, providing adequate protection of public health and safety, and the environment.

The following table provides information concerning the currently operating ISLs in non- Agreement States.

Currently Licensed and Operating ISLs in Non-Agreement States Licensee State License No. Docket No.

Crow Butte Resources Nebraska SUA-1543 040-008943 Cogema Wyoming SUA-1341 040-008502 Power Resources, Inc. Wyoming SUA-1548 040-008964 Based on the NRC staffs experience in working with Nebraska and Wyoming, it expects that the comparison will result in finding that these States ground-water protection programs are equivalent to NRCs.

On successfully completing an MOU with a State, the NRC will then amend each of the affected ISL licenses at the request of each licensee. The amendment will remove, as appropriate, the specific conditions pertaining to ground-water protection. Each amendment will be subject to an environmental review and a notice of opportunity for a hearing, in accordance with current NRC policy and practices. Thereafter, the NRC will periodically document its review of UIC

permits and State inspection reports, as well as State-identified program changes, to determine that the State continues to conduct an acceptable program in accordance with the MOU. The NRC will continue to conduct licensing reviews and inspections for public and worker radiation safety at the affected ISL facilities.

Although implementation of this approach will initially require the expenditure of additional NRC

staff resources to achieve the agreements before any resource savings will be realized, the approach offers several advantages. The current dual regulatory burden of the NRC and State reviews of the licensees will be eliminated once the agreement is finalized. Public health, safety, and environmental protection, with regard to ground-water, will be assured at licensed ISL facilities through the States direct oversight. At the same time, the NRC will retain its authority to regulate ground-water protection at ISLs and can re-enter active regulation in this area if a States program became inadequate. The effectiveness and efficiency of the NRCs ISL licensing program will be enhanced by making its active role clear to the licensee and other stakeholders. In time, it is anticipated that the initial outlay of resources to develop the MOUs will be more than offset by the gains from reductions of reviews.

Summary of Comments on RIS 2004-02:

Comments on the proposal described in RIS 2004-02 were received from the States of New Mexico, Texas, and Wyoming; the Wyoming Mining Association; the National Mining Association (NMA); the Nuclear Energy Institute (NEI); Crow Butte Resources, Inc.; and Power Resources, Inc. All comments were favorable and supported NRCs proposal to defer active regulation in this area using the MOU process discussed in RIS 2004-02.

NEI commented that the NRC should relinquish regulation of all in-situ well-field operations.

NEI stated that such operations are equivalent to the mining of ores in conventional open pit or underground operations that are not subject to NRC licensing. In response, NRC staff pointed out that ISL operations involve the in-place (i.e., in-situ) processing of ores to extract (i.e.,

recover) the uranium; therefore, unlike conventional open pit or underground mining in which the ore is removed from the earth and the uranium is later extracted from the ore in a mill, the extraction of the uranium for ISL processes occurs directly in the ore deposit. The NRC has jurisdiction and licensing authority over the milling of uranium (as defined in 10 CFR 40.4).

Therefore, we have concluded that for the NRC to relinquish its regulatory authority over the extraction portion of ISL operations, either a State must enter into an agreement with the NRC

which provides for the discontinuance of the NRCs regulatory authority over the activities associated with uranium and thorium recovery facilities pursuant to section 247b. of the Atomic Energy Act of 1954, as amended (AEA), or a statutory change would be necessary. We are not convinced at this time that a statutory change would be a cost effective undertaking.

NMA commented that the process described in RIS 2004-02 could be rather lengthy. NMA

encouraged the NRC to use the appropriate personnel and needed resources to move forward with the process as expeditiously as possible. In response, NRC will apply the available resources that are needed, consistent with its budget and other priority work.

The State of Wyoming commented on the contents of the example MOU that was included as an attachment to RIS 2004-02. The State of New Mexico commented that a detailed review of the example MOU would be needed before entering into an agreement. Each MOU will be unique because of circumstances unique to each State. Because of these circumstances, discussions with each State will be necessary to develop final MOUs; therefore, an example MOU is not included with this RIS. Similarly, the States comments on the example MOU have not been included. This RIS requires no specific action nor written response. If you have any questions about this summary, please contact the technical contact listed below.

/RA/

Robert C. Pierson, Director Division of Fuel Cycle Safety and Safeguards Office of Nuclear Material Safety and Safeguards

Technical Contact:

John H. Lusher, NMSS

Phone: 301-415-7694 E-mail: jhl@nrc.gov Attachment: List of Recently Issued NRC Regulatory Issue Summaries June 7, 2004 This RIS requires no specific action nor written response. If you have any questions about this summary, please contact the technical contact listed below.

/RA/

Robert C. Pierson, Director Division of Fuel Cycle Safety and Safeguards Office of Nuclear Material Safety and Safeguards

Technical Contact:

John H. Lusher, NMSS

Phone: 301-415-7694 E-mail: jhl@nrc.gov Attachment: List of Recently Issued NRC Regulatory Issue Summaries

NAME D.Diaz* E Kraus* R.Nelson* M.Schwartz P.Lohaus* G.Janosko R.Pierson via email via email DATE 5/24/04 5/12/04 5/24/04 5/25/04 5/21/04 5/27/04 5/28/04 OFFICIAL RECORD COPY

Attachment LIST OF RECENTLY ISSUED

NRC REGULATORY ISSUE SUMMARIES

_____________________________________________________________________________________

Regulatory Issue Date of Summary No. Subject Issuance Issued to

_____________________________________________________________________________________

2004-08 Results of the License Termination 05/28/2004 All holders of operating licenses Rule Analysis for nuclear power reactors, research and test reactors, as well as decommissioning sites.

2004-07 Release of Final Review Standard 05/19/2004 All holders of operating licenses (RS)-002, Processing for nuclear power reactors, all Applications for Early Site Permits applicants for early site permits (ESPs), and all prospective vendors of nuclear power plants in the United States.

2004-06 Independent Survey of Power 04/16/2004 All holders of operating licenses Reactor Licensees for nuclear power reactors except those who have permanently ceased operations and have certified that fuel has been permanently removed from the reactor vessel.

2004-05 Grid Reliability and the Impact on 04/15/2004 All holders of operating licenses Plant Risk and the Operability of for nuclear power reactors except Offsite Power those who have permanently ceased operations and have certified that fuel has been permanently removed from the reactor vessel.

2004-04 Use of Code Cases N-588, N-640, 04/05/2004 All holders of construction permits and N-641 in Developing or operating licenses for nuclear Pressure-Temperature Operating power reactors except those who Limits have permanently ceased operations and have certified that fuel has been permanently removed from the reactor vessel.

Note: NRC generic communications may be received in electronic format shortly after they are issued by subscribing to the NRC listserver as follows:

To subscribe send an e-mail to <listproc@nrc.gov >, no subject, and the following command in the message portion:

subscribe gc-nrr firstname lastname

______________________________________________________________________________________

OL = Operating License CP = Construction Permit


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