ML24103A021

05-08-2024 Letter to K. Wendtland Re Wyoming Preliminary Proposed Revisions to Chapters 4, 7, 8

ML24103A021
Person / Time
Issue date:	05/08/2024
From:	Adelaide Giantelli NRC/NMSS/DMSST/ASPB
To:	Wendtland K State of WY, Dept of Environmental Quality
References
Download: ML24103A021 (1)

Text

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 Kyle Wendtland, Administrator Wyoming Department of Environmental Quality Land Quality Division 200 West 17th Street Cheyenne, WY 82002

SUBJECT:

WYOMING PRELIMINARY PROPOSED REVISIONS TO CHAPTERS 4, 7, AND 8

Dear Kyle Wendtland:

We have reviewed the Wyoming preliminary proposed regulations in Chapters 4, 7, and 8, received by our office on February 27, 2024. This is the second of three planned submissions to add new rules for the regulation of source material recovered from any mineral resource processed primarily for purposes other than its uranium or thorium content. These regulations were reviewed by comparison to the equivalent U.S. Nuclear Regulatory Commission (NRC) regulations in Title 10 of the Code of Federal Regulations (10 CFR) Part 40. We discussed our review of the regulations with Brandi OBrien on April 11, 2024.

As a result of our review, we have 19 comments and 4 editorial suggestions that have been identified in the Enclosure 1. Under our current procedure, a finding that the Wyoming regulations meet the compatibility and health and safety categories of the equivalent NRC regulation may only be made based on a review of the final Wyoming regulations. Please note that Chapters 7 and 8 were determined to not be a matter of compatibility. However, we have determined that if your proposed regulations were adopted, incorporating our comments and without other significant change, they would meet the compatibility and health and safety categories established in the Office of Nuclear Material Safety and Safeguards (NMSS)

Procedure SA-200, Compatibility Categories and Health and Safety Identification for NRC Regulations and Other Program Elements.

We request that when the proposed regulations are adopted and published as final regulations, a copy of the as published regulations be provided to us for review. As requested in NMSS Procedure SA-201, Review of State Regulatory Requirements, please highlight the final changes and provide a copy to Division of Materials Safety, Security, State, and Tribal Programs, NMSS.

The SRS Data Sheet in Enclosure 2 summarizes our knowledge of the status of other Wyoming regulations, as indicated. Please let us know if you note any inaccuracies or have any comments on the information contained in the SRS Data Sheet. This letter, including the SRS Data Sheet, is posted on: https://www.nrc.gov/agreement-states. May 8, 2024 If you have any questions regarding the review, the compatibility and health and safety categories, or any of the NRC regulations used in the review, please contact my staff at AgreementStateRegs.Resource@nrc.gov.

Sincerely, Adelaide S. Giantelli, Chief State Agreement and Liaison Programs Branch Division of Materials Safety, Security, State, and Tribal Programs Office of Nuclear Material Safety and Safeguards

Enclosures:

1. Compatibility Comments

2. Wyoming SRS Data Sheet Signed by Giantelli, Adelaide on 05/08/24

COMPATIBILITY COMMENTS ON WYOMING PROPOSED REGULATIONS

STATE SECTION NRC SECTION CATEGORY SUBJECT and COMMENTS

1 Chapter 4 NA NA Incorporation by Reference Section 3 There is inconsistency in the language Wyoming uses to incorporate regulations by reference.

Wyoming should revise Chapter 4 Section 3 to be consistent with Chapter 5 which provides more clarity. Additionally, there is conflicting and duplicative language that Wyoming needs to revise.

Wyoming could revise Section 3 similar to the following:

(a) The Department fully adopts and hereby incorporates by reference 10 CFR 40.2(a),

40.36(f), 40.51 (except 40.51(b)(6)), 40.54, 40.55, and 40.61 revised as of January 1, 2022. These rules do not include any later amendments or editions of incorporated matter. [Note: see comment 8 regarding 40.36(f)]

(b) Delete (c) The Department fully adopts and hereby incorporates by reference 10 CFR 150.20 revised as of January 1, 2022. These rules do not include any later amendments or editions of incorporated matter.

(d) Delete

Since Part 20 is already adopted in Chapter 3, Wyoming should not additionally adopt it in Chapter 4.

Wyoming needs to make this change to avoid creating any conflicts, duplication, or gaps in its rules.

2 Chapter 4 40.3 C License Requirements Section 2(b)

Chapter 4 Section 2 paragraph (b) includes the phrase or residual radioactive material as defined in Chapter 1, General Provisions. However, Wyoming has removed the definition for residual radioactive material from Chapter 1, as it is not applicable to these regulations.

Wyoming needs to delete the phrase or residual radioactive material as defined in Chapter 1, General Provisions, from paragraph (b) to avoid

Enclosure 1 STATE SECTION NRC SECTION CATEGORY SUBJECT and COMMENTS creating any conflict in the regulations.

3 Chapter 4 40.10 C Deliberate misconduct Section 4 Wyoming has omitted information contained in 10 CFR 40.10 that is needed to meet its Compatibility C designation.

1. WY needs to revise Ch 4 Section 4(a)(ii) to read Deliberately submit to the Department, a licensee, an applicant, or a licensees or applicants contractor or subcontractor

2. In Ch 4 Section 4(b) WY needs to reference the WY equivalent to the procedures in 10 CFR part 2, subpart B.

3. WY needs to revise Ch 4 Section 4(c)(ii) to read of a licensee, applicant, contractor, or subcontractor

Wyoming also has the deliberate misconduct requirement in Chapter 1 Section 9. To prevent creating conflict and duplication Wyoming needs to delete one of the deliberate misconduct requirements.

Wyoming needs to make these changes to meet the Compatibility C designation of 10 CFR 40.10.

4 Chapter 4 40.11 B Persons using source material under certain Section 6(g) Department of Energy and Nuclear Regulatory Commission contracts

Wyoming needs to revise paragraph (g) of Chapter 4 Section 6 to be essentially identical to 10 CFR 40.11. Specifically, Wyoming needs to make the following edits:

1. In the introductory statement replace 81 and 82 of the Act with 62, 63, 64 of the Act

2. In subparagraph (g)(i) replace byproduct material with source material

3. After subparagraph (g)(iii) add the following:

In addition to the foregoing exemptions, and subject to the requirement for licensing of DOE facilities and activities pursuant to section 202 of the Energy Reorganization Act of 1974 or the Uranium Mill Tailings STATE SECTION NRC SECTION CATEGORY SUBJECT and COMMENTS Radiation Control Act of 1980, any prime contractor or subcontractor of the DOE or the Nuclear Regulatory Commission is exempt from the requirements for a license set forth in sections 62, 63, and 64 of the Act and from the regulations in this Chapter to the extent that such prime contractor or subcontractor receives, possesses, uses, transfers or delivers source material under his prime contract or subcontract when the Department determines that the exemption of the prime contractor or subcontractor is authorized by law; and that, under the terms of the contract or subcontract, there is adequate assurance that the work thereunder can be accomplished without undue risk to the public health and safety.

Wyoming needs to make these changes to meet the Compatibility B designation of 10 CFR 40.11.

5 Chapter 4 40.12(a) B Carriers Section 6(f)

Wyoming needs to revise paragraph (f) of Chapter 4 Section 6 to reference the correct section of the Atomic Energy Act of 1954, as amended.

Specifically, Wyoming needs to replace Section 81 with Section 62.

Wyoming needs to make this change to meet the Compatibility B designation of 10 CFR 40.12.

6 None 40.21 C General license to receive title to source or byproduct material Wyoming has not adopted 10 CFR 40.21.

Wyoming needs to include 10 CFR 40.21 in its regulations to meet the Compatibility C designation of 10 CFR 40.21.

7 None 40.22 B/C Small quantities of source material

Wyoming has not adopted 10 CFR 40.22.

Wyoming needs to adopt 10 CFR 40.22 except for paragraph (b)(4). Wyoming needs to adopt these requirements to meet the Compatibility B and C designations of 10 CFR 40.22.

STATE SECTION NRC SECTION CATEGORY SUBJECT and COMMENTS

8 Chapter 4 40.36(f) H&S Financial assurance and recordkeeping for Section 3 decommissioning

Wyoming incorporates 10 CFR 40.36(f) by reference in Chapter 4. However, all other portions of 10 CFR 40.36 are adopted in Chapter 6, which is dedicated to financial assurance requirements.

Since Wyoming has a chapter dedicated to financial assurance requirements, all applicable requirements should be included in that chapter, included any requirements incorporated by reference.

Wyoming should remove the incorporation by reference of 10 CFR 40.36(f) in Chapter 4 Section 3(a) and either incorporate by reference or otherwise adopt 10 CFR 40.36(f) in Chapter 6 to avoid creating any conflict or gaps in the rules.

9 Chapter 4 40.41(a), (b) & C Terms and conditions of licenses Section 8 (c)

Wyoming does not adopt 10 CFR 40.41(a) & (b).

Additionally, Wyoming only adopts a portion of 10 CFR 40.41(c) in Chapter 4 Section 8(f).

Specifically, Wyoming is missing Except as otherwise provided in the license, a license issued pursuant to the regulations in this part shall carry with it the right to receive, possess, and use source material. Preparation for shipment and transport of source or byproduct material shall be in accordance with the provisions of Chapter 9.

Wyoming needs to adopt 10 CFR 40.41(a) & (b) and the remaining portions of 10 CFR 40.41(c).

Wyoming needs to adopt these requirements to meet the Compatibility designation of 10 CFR 40.41(a),(b),(c).

10 Chapter 4 40.42(g)(1) H&S Expiration and termination of licenses and Section decommissioning of sites and separate 17(a)(i) buildings or outdoor areas

Paragraph (a)(i) of Chapter 4 Section 17, ends with an or statement, however, this should be an and sentence. Wyoming needs to revise paragraph STATE SECTION NRC SECTION CATEGORY SUBJECT and COMMENTS (a)(i) to Have not been previously approved by the Department; and.

Wyoming needs to make this change to meet the H&S designation of 10 CFR 40.42(g)(1).

11 Chapter 4 40.42(g)(5) H&S Expiration and termination of licenses and decommissioning of sites and separate buildings or outdoor areas

Wyoming does not adopt 10 CFR 40.42(g)(5).

To meet the health and safety designation of 10 CFR 40.42(g)(5), Wyoming needs to add language to Chapter 4 stating that a proposed decommissioning plan will be approved by the Department if the plan demonstrates decommissioning will be completed as soon as practical while adequately protecting the health and safety of workers and the public.

Wyoming needs to make this change to meet the H&S designation of 10 CFR 40.42(g)(5).

12 Chapter 4 40.42(k)(3) H&S Expiration and termination of licenses and Section decommissioning of sites and separate 16(i)(iii) buildings or outdoor areas

Wyoming needs to revise paragraph (i)(iii) of Chapter 4 Section 16 as follows:

1. Delete the introductory statement A radiation survey has been performed which demonstrates that:

2. Revise subparagraph (A) to read A radiation survey has been performed which demonstrates that the premises are suitable for release in accordance with the applicable criteria for decommissioning found in 10 CFR Part 20.1401 through 20.1406; or

Wyoming needs to make this change to meet the H&S designation of 10 CFR 40.42(k).

13 Chapter 4 40.46 C Inalienability of licenses Section 8(e)

Wyoming does not adopt paragraph (b) of 10 CFR 40.46.

STATE SECTION NRC SECTION CATEGORY SUBJECT and COMMENTS

Wyoming needs to amend Chapter 4 Section 8(e) to add language that is at least as restrictive as 10 CFR 40.46(b) providing the information to be included in an application for transfer of a license.

Wyoming needs to make the above change to meet the Compatibility C designation of 10 CFR 40.46.

14 Chapter 4 40.60 C Reporting Requirements Section 10(c) Wyoming has included in Chapter 4 Section 10(c)(i)(A) and (B) examples of events requiring immediate reporting. These examples appear to be specific to uranium recovery activities and not rare earths. Wyoming should either:

1. Remove the two examples in Section 10(c)(i)(A) and (B) or

2. Modify the examples to remove reference to tailings.

Additionally, if Wyoming keeps the modified examples, the last sentence of Chapter 4 Section 10(c)(i) should be clarified to state that the examples are not an exhaustive list. Otherwise, the licensee may interpret the reporting requirement to only be applicable to those two types of events.

Wyoming is missing information contained in 10 CFR 40.60(c)(2). Wyoming needs to make the following changes to Chapter 4 Section 10(c)(iii):

1. The reference to Section 10(c)(iii) in paragraph (c)(iii)(B) needs to be revised to Sections 10(c)(i) and 10(c)(ii).

2. In paragraph (c)(iii)(B) delete the statement as prescribed in Chapter 11 of the Non-Coal Rules and Regulations and replace with within 30 days of the initial report.

Note: Wyoming may opt for a shorter timeframe than 30 days.

Wyoming needs to make these changes to meet the Compatibility C designation of 10 CFR 40.60.

15 Chapter 4 40.61 C, D, H&S Records Section 3(a)

Wyoming incorporates 10 CFR 40.61 by reference in Chapter 4 Section 3(a), however, Wyoming also discusses record requirements in Chapter 1 Section 11. This duplication could create conflict in STATE SECTION NRC SECTION CATEGORY SUBJECT and COMMENTS the requirements. Wyoming should either keep the incorporation by reference or 10 CFR 40.61 in Chapter 4 and delete Chapter 1 Section 11 or remove the incorporation by reference in Chapter 4 and keep the record requirements in Chapter 1 Section 11.

Note: If keeping Chapter 1 Section 11, the section would need to be revised as described in the comments of our letter dated January 3, 2024.

16 Chapter 4 NA NA Paragraphs (g) and (h) of Chapter 4 Section 16 Section 16 contain incomplete language that is duplicative from Section 17. Wyoming should delete paragraphs (g) and (h) to avoid creating duplication and gaps.

17 Chapter 4 40.54 NA Incorporation by reference reconciliation Section 3 40.61 To reconcile differences of incorporated sections of 10 CFR 40 certain terms and references need to be substituted. Specifically, the following substitutions need to be added to Chapter 4 Section 3:

• In 10 CFR 40.54 and 40.61 a reference to Commission means Department.

• In 10 CFR 40.54 a reference to § 40.32 means Chapter 4 Section 8(a).

• In 10 CFR 40.54 a reference to § 40.22 means Chapter 4 Section X.

Note: As stated in Comment 7, Wyoming has not yet adopted the requirements in 10 CFR 40.22, and the third substitution will need to be revised with the Wyoming section equivalent to 10 CFR 40.22.

18 Chapter 4 NA NA Incorrect references to NRC

In several instances Wyoming incorrectly references the NRC in Chapter 4. To correct this, Wyoming should amend Chapter 4 as follow:

1. In paragraph (a)(ii) of Section 4 delete NRC or

2. In the first line of paragraph (e) of Section 8 delete the NRC or

3. In the last line of paragraph (b) of Section 16 revise NRC regulations to reference Wyomings rules (e.g., these rules)

STATE SECTION NRC SECTION CATEGORY SUBJECT and COMMENTS

4. In paragraph (i)(iv) of Section 16 replace NRC with Department

19 None Part 61 B/H&S Part 61

Wyoming has not adopted 10 CFR 61.55, 56, and

57. Wyoming needs to adopt these requirements as they are necessary to ensure that waste generators classify and label low level waste appropriately.

EDITORIAL SUGGESTIONS ON WYOMING PROPOSED REGULATIONS

STATE SECTION NRC SECTION CATEGORY SUBJECT and COMMENTS

1 Chapter 4 NA NA In paragraph (a) of Chapter 4 Section 5, Wyoming Section 5 discusses the application fee to be accompanied with an application. It is recommended that Wyoming also include a reference to Chapter 7 of these rules which discusses fees.

2 Chapter 4 NA NA In paragraph (a) of Chapter 4 Section 11, Wyoming Section 11 sets the term for a license as 10 years. The NRC does not set license terms in regulations but in guidance instead. Since regulations are more difficult to amend, Wyoming may consider deleting this requirement.

3 Chapter 4 NA NA In paragraphs (i)(iii)(A) and (j) of Section 16, Section 16 Wyoming states, 10 CFR Part 20.1401 through 20.1406, however, the correct nomenclature is 10 CFR 20.1201 through 20.1406 and does not include mention of Part.

4 Chapter 4 40.42(g)(3) H&S To provide clarity, Wyoming should consider Section adding a reference to which procedures paragraph 17(b) 17(b) in Chapter 4 Section 17 is referring to.

Specifically, Wyoming could state: Procedures listed in paragraph (a) of this section with potential health and safety impacts may not be carried out prior to approval of the decommissioning plan.

STATE REGULATION STATUS State: Wyoming Tracking Ticket Number: 24-13 Date: May 8, 2024

[Amendment(s) reviewed identified by a

• at the beginning of the equivalent NRC requirement.]

RATS ID NRC Chronology Identification Date Due for Incoming Outgoing Notes State Adoption Letter Package

NA Wyoming Enabling Legislation NA Proposed Comments Wyoming House Bill HB0027 ML15225A439 9/28/2015 ML15225A433

Revised Proposed Comments ML15324A391 09/26/2016 ML15324A388

Revised Proposed Comments ML17319A925 02/28/2018 ML18032A380

Revised Proposed No Comments ML19004A444 01/23/2019 ML19004A436

Final Agreement ML18267A261 09/30/2018

Enclosure 2 RATS ID NRC Chronology Identification Date Due for Incoming Outgoing Notes State Adoption Letter Package

NA Wyoming DEQ Regulations to 10 CFR Part 20 NA Proposed Comments Chapter 1: General Provisions ML16014A133 03/15/2016 Chapter 3: Radiation Protection Standards ML16014A131

Revised Proposed Comments ML16097A348 10/03/2016 ML16097A339

Final No Comments ML17319A925 02/18/2018 ML18032A380

NA Wyoming DEQ Regulations to 10 CFR Parts 19 NA Proposed Comments and 71 ML16095A093 07/25/2016 Chapter 1: General Provisions ML16095A091 Chapter 5: Notice, Instructions and Reports to Workers Final No Comments Chapter 9: Transportation of Licensed Material ML17319A925 02/18/2018 Chapter 10: Risk-Informed and Performance ML18032A380 Based Licensing and Inspection

NA Wyoming DEQ Regulations to 10 CFR Parts 40 NA Proposed Comments and 150 ML16194A168 10/13/2016 Chapter 1: General Provisions ML16194A048 Chapter 4: Licensing Requirements for Source and Byproduct Material Final No Comments Chapter 6: Financial Assurance ML17319A925 02/18/2018 Chapter 10: General Licenses ML18032A380

2018-2 Miscellaneous Corrections - 12/21/2021 ML19030B773 ML19030B770 This rulemaking does not contain Organizational Changes 01/30/2019 provisions applicable to Wyomings 10 CFR Parts 37, 40. 70 and 71 program.

2018-3 Miscellaneous Corrections 07/30/2022 Parts 1, 2, 34, 37, 50, 71, 73, and 140 RATS ID NRC Chronology Identification Date Due for Incoming Outgoing Notes State Adoption Letter Package

2019-1 Miscellaneous Corrections 12/18/2022 Parts 2, 21, 37, 50, 52, 73, and 110

2019-2 Organizational Changes and Conforming 12/30/2022 Amendments Parts 1, 2, 37, 40, 50, 51, 52, 55, 71, 72, 73, 74, 100, 140, and 150

2020-1 Individual Monitoring Devices 06/16/2023 10 CFR Parts 34, 36, and 39

2020-2 Social Security Number Fraud Prevention 08/17/2023 10 CFR Parts 9 and 35

2020-3 Miscellaneous Corrections 11/16/2023 10 CFR Parts 1, 2, 19, 20, 21, 30, 34, 35, 40, 50, 51, 52, 60, 61, 62, 63, 70, 71, 72, 73, 74, 75, 76, 110, and 140

2021-1 Miscellaneous Corrections 09/08/2024 10 CFR Parts 2, 11, 20, 25, 32, 35, 37, 50, 52,55, 70, 72, 73, 95, and 110

2021-2 Miscellaneous Corrections 12/30/2024 10 CFR Parts 9, 37, 40, 50, 51, 52, 55, 71, 73, and 110

2022-1 Miscellaneous Corrections none Provisions are not required for 10 CFR 1, 2, 20, 30, 40, 50, 55, 70, 73, and 170 compatibility.

2022-2 Miscellaneous Corrections none Provisions are not required for 10 CFR Parts 20, 35, 50, 51, 52, 72, 73, 110, compatibility.

and 150

2023-1 Miscellaneous Corrections 09/25/2026 10 CFR PARTS 1, 2, 26, 32, 40, 50, 51, 52, 72, and 73 RATS ID NRC Chronology Identification Date Due for Incoming Outgoing Notes State Adoption Letter Package

NA Legislation, Articles 15 and 21 NA ML21194A144 Comments 08/31/2021 ML21194A077

NA Proposed Legislation NA ML22364A006 No Comments 01/04/2023 ML22364A003

NA Final Legislation NA ML23059A393 No Comments 03/03/2023 ML23059A385

NA Wyoming DEQ Regulations to 10 CFR Parts 19 NA Proposed Comments and 20 ML23290A062 01/03/2024 Chapter 1: General Provisions ML23285A135 Chapter 3: Radiation Protection Standards Chapter 5: Notice, Instructions and Reports to Workers

NA Wyoming DEQ Regulations to Part 71 and MiscNA Proposed Comments Chapter 1: General Provisions ML23355A017 02/29/2024 Chapter 6: Financial Assurance ML23355A015 Chapter 9: Transportation of Licensed Material

• NA Wyoming DEQ Regulations to Part 40 and Misc.NA Proposed Comments Chapter 4: ML24060A151 05/08/2024 Chapter 7: ML24060A149 Chapter 8:

ML24103A021 OFFICE R-IV/DNMS/MIB OGC/GCRPS/RMR NMSS/REFS/RRPB NMSS/MSST/SMPB NAME ABolger AB MSmith MS SSahle SSAGiantelli AG DATE May 7, 2024 May 7, 2024 May 7, 2024 May 8, 2024