ML20196B064

Transcript of 990617 Meeting in Rockville,Md Re Staff Proposals for U Recovery Regulatory Issues SECY-99-011, SECY-99-012 & SECY-99-013.Pp 1-139.Supporting Documentation Encl

ML20196B064
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Issue date:	06/17/1999
From:	NRC
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References
REF-10CFR9.7 SECY-99-011-C, SECY-99-012-C, SECY-99-013-C, SECY-99-11-C, SECY-99-12-C, SECY-99-13-C, NUDOCS 9906230067
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nr-1,) u A 1 V ii1 0 ; vii .J UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l

Title:

STAFF PROPOSALS FOR URANIUM RECOVERY- l REGULATORY ISSUES SECY PAPERS99-011,99-012 AND 99 813. -

PUBLIC MEETING.  !

9 l

Location: Rockville, Maryland -

l Date: Thursday, Ju' ns 17,1999 U

L' {, ' .. y

• Pages: 1 - 139

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PT9.7 PDR l

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DISCLAIMER This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Commission held on June 17, 1999, in the Commission's of fice at One White Flint North, Rockville, Maryland. The meeting was open to public attendance and observation. This transcript has not been reviewed, corrected or edited, and it may contain inaccuracies.

The transcript is intended solely for general informational purposes. As provided by 10 CFR 9.103, it is not part of the formal or informal record of decision of the matters discussed. Expressions of opinion in this transcript do not necessarily reflect final determination or beliefs. No pleading or other paper may be filed with the Commission in any proceeding as the result of, or addressed to, any statement or argument' contained herein, except as the Commission may P.uthorize.

l S- 1 l 1 UNITED STATES OF AMERICA l

2 NUCLEAR REGULATORY COMMISSION l

3 ***

4 OFFICE OF THE SECRETARY 5 ***

6 STAFF PROPOSALS FOR URANIUM l- 7 RECOVERY REGULATORY ISSUES 8 SECY PAPERS99-011, 99-012 AND 99-013 9 ***

1 10 PUBLIC MEETING ,

1 11 Muclear Regulatory Commission l i

12 Room 16-1F 23 One White Flint North 14 11555 Rockville Pike 15 Rockville, Maryland 16 Thursday, June 17, 1999 17 The Commission met in open session, pursuant to 18 notice, at 9:07 a.m., the Honorable SHIRLEY A. JACKSON, 19 Chairman of the Commission, presiding.

20 COMMISSIONERS PRESENT:

y 21 SHIRLEY A. JACKSON, Chairman of the Commission 22 EDWARD McGAFFIGAN, JR., Member of the Commission l"

, 23 GRETA J. DICUS, Member of the Commission 24 JEFFREY S. MERRIFIELD, Member of the Commission 25 NILS J. DIAZ, Member of the Commission l

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S- 2 1 STAFF AND PRESENTERS SEATED AT THE COMMISSION TABLE:

2 KAREN D. CYR, General Counsel 3 ANNETTE VIETTI-COOK, Secretary 4 KING STABLEIN, Chief, Projects & Engineering 5 Section 6 JOSEPH HOLONICH, Deputy Director, Division of 7 Waste Management 8 CARL PAPERIELLO, Director, NMSS 9 JOHN GREEVES, Director, Division of Waste 10 Management 11 WILLIAM FORD, DPV Presenter 12 MYRON FLIEGEL, DPV Presenter 13 JAMES J. FIORE, Deputy Assistant, DOE 14 WILLIAM SINCLAIR, Director, Division of Radiation i

15 Control, Utah Department of Environmer.1 16 Quality 17 GARY SMITH, Deputy Director, Technical 18 Assessments, Bureau of Radiation Control, Texas 19 Department of Health 20 WILLIAM KEARNEY, Chairman, Uranium Industry j 21 Commission, Wyoming Mining Association .

22 DAVE CULBERSON, Fuel Cycle Facilities Forum j 23 RICHARD LAWSON, President & CEO, NMA 24 DIANE CURRAN, Counsel SRIC 25 ANN RILEY & ASSOCIATES, LTD.

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I S- 3 1

STAFF AND PRESENTERS SEATED AT THE COMMISSION TABLE:

2 [ Continued) 3 CHRIS SHUEY, Environmental Health Specialist, 4

Southwest Research and Information Center 5

ANTHONY THOMPSON, Counsel, National Mining 6 Association 7

LOREN SETLOW, Office of Radiation and Indoor Air, 6 EPA 9 KATIE SWEENEY, Associate General Counsel, National J 10 Mining Association 11

, 1:2 l 13 14 15 16 17 18 19 20 21 22 23 24 25 ANN RILEY & ASSOCIATES, LTD.

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1 S- 4 1 PROCEEDINGS I l

2

[9:07 a.m.]

3 CHAIRMAN JACKSON: Good morning, ladies and 4 gentlemen. Today the Commission will be hearing from a 5 number of participants about several policy issues 6 associated with uranium recovery. Our presenters today are the NRC staff, the Department of Energy, the Conference of 7

8 Radiation Control Program Directors aka CRCPD, the State of ,

9 Utah, the Wyoming Mining Association, the National Mining 10 Association, the Fuel Cycle Facilities Forum and the 11 Southwest Research and Information Center.

12 The purpose of the briefing is to discuss the 13 issues that are presented in three papers presently before 14 the Commission, SECYS-99-011, 012 and 013.

15 At the direction of the Commission these three 16 papers were made publicly available through the Public 17 Document Room and the NRC web site to provide early access 18 to the information to interested stakeholders.

19 Experience in using and implementing existing NRC 20 requirements in 10 CFR Part 40 to regulate uranium and 21 thorium recovery facilities has suggested that some -

22 revisions are needed. The staff has concluded that 23 revisions to the regulations are necessary to establish 24 requirements that are tailored for in situ leach facilities 25 and to resolve current policies issues to ensure safety ANN RILEY & ASSOCIATES, LTD.

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l S- 5 1 without imposing an unnecessary burden.

2 Therefore, the staff has recommended to the 3' Commission the following: (1) preparation of a draft 4 rulemaking plan for a proposed new 10 CFR Part 41 on 5 domestic licensing of uranium and thorium recovery 6 facilities; (2) specific requirements for in situ leach i 7- facilities; (3) . allowance of disposal of other similar 8 materials.in uranium mill tailings impoundments; and (4) 9 allowance of processing alternate feed material at uranium (

10 -mills. {

l Because of the various interests associated with 12' these issues, the Commission will hear a variety of 1 13 stakeholder presentations this morning. The NRC staff will 14 open an overview of the issues and recocmendations discussed 15 in the papers. This will be followed by the other 16 presentations that will focus on points of agreement and 17 disagreement with the staff's proposed plans and 18 preferences.

19 All of the issues to be discussed today are 20 generic and are of broad applicability to NRC activities.

21 However, aspects of some of these same issues currently are 22 being litigated in three adjudications before the Atomic 23 Safety and Licensing Board. Because the Commission is the 24- appellate body in each of the pending adjudications, it will 25 not entertain in this briefing any arguments or discussions ,

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S- 6 .

1 1 of the case-specific issues in litigation. Let me repeat -- I 2 it wi]l not ent'.rtain in this briefing any arguments or 3 discussions of the case-specific issues in litigation.

4 We have an unusually large number of participants 5 in our meeting today and a reasonable tight schedule, some 6 might say unreasonably tight schedule. I ask that each of 7 the presenters focus their message to the Commission and be ~

8 precise. Your presentations today should be based on the i

• 9 assumption that the Commissioners are familiar with the 10 content of your written material. Let me repeat -- your 11 presentations today should be based on the assumption that 12 the Commissioners are familiar with the content of your 13 written material.

14 COMMISSIONER MERRIFIELD: Madame Chairman, I 15 presume that means you mean that they should be reading the 16 written testimony provided.

17 CHAIRMAN JACKSON: You have got it.

18 COMMISSIONER DICUS: That is correct, because we 19 are and we want you to be concise. 1 20 CHAIRMAN JACKSON: We are requesting this so that 21 the time scheduled for this briefing will also allow time . l 22 for questions, this is to all to the presenters. Because 23 the NRC staff happens to be sitting here does not mean that 24 it is directed merely at them.

25 I understand that copies of all the viewgraphs and ANN RILEY & ASSOCIATES, LTD.

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S- 7 1 statements and the three Commission papers are available at 2 the entrances to the room. Unless my colleagues have 3 anything more they wish to add, Dr. Paperiello,~ please 4' proceed.

5 DR. PAPERIELLO: Good morning, Madame Chairman, 6 Commissioners, and thank you.

-7' With me at the table are Mr. King Stablein, the 8 Acting Deputy Branch Chief of Uranium Recovery and Low Level 9 Waste; Mr. Joe Holonich, Deputy Director of the Division of 10 Waste Management; John Greeves, the Director of the Division 11 of Waste Management; and Mr. Ford and Mr. Fliegel who are 12 the Project Managers in the Division of Waste Management.

13 As you have indicated, the staff is here this 14 morning to brief the Commission on issues in the uranium 15 recovery program. Three of the four issues are documented 16 in Commission papers that have been previously provided.

17 The issues are related to concerns with the NRC's 18 requirements under the Uranium Mill Tailings Control Act of 19 1978, better known as UMTRCA.

20 In my view the issues represent significant public  !

21 policy questions as well as the reasonable assurance of 22 protecting the public health and safety. Because of this, 23 the staff is looking to the Commission for guidance. You l 24 will hear from two other staff members who have filed  !

25 differing professional views on the issues in our papers. j ANN RILEY & ASSOCIATES, LTD.

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S- 8 1 A fourth issue, concurrent jurisdiction with 2 states, has not yet been presented to the Commission in a 3 paper. Staff has been working with the Office of General 4 Counsel to determine what recommendations should be made.

5 Once this effort is completed we plan on providing a paper 6- with recommendations on this issue.

~

7 These issues arise in large part because of a 0 change in technology over 20 years since UMTRCA was enacted. ,

9 When the law was passed, Congress envisioned a very robust 10 nuclear power industry and the price of yellow cake 11 processed at these uranium mills was over $40 a pound. At 12 that time the extraction of uranium was done mainly by 13 conventional mills. In situ leach facilities and heap leach 14 facilities were used to process cres that were uneconomical 15 to run through a conventional mill.

16 Today the price of uranium is not $40 a pound but 17 about $10 a pound. Nearly all the convention mills in 18 operation when UMTRCA was passed are now under reclamation.

19 The in situ leach process, an extremely small activity at 20 the time of UMTRCA's enactment is now the predominant form 21 of uranium production. UMTRCA and subsequent NRC -

22 regulations were focused on the technology of conventional 23 mills. The change in technology from convention milling to 24 solution-extraction has generated a set of issues that were 25 not envisioned when Congress passed UMTRCA.

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S- 9 1

I would like to.now introduce Mr. King Stablein,

2. the Acting Assistant Branch Chief for the Uranium Recovery 3

and Low Level Waste Branch, who will discuss the major 4 issues presented in our Commission papers.

5 IGl. STABLEIN: Good morning, Chairman Jackson, 6 Commissioners. Thank you'for your introductory remarks, Dr.

7 Paperiello.

8 Could I have slide $ne, please?

9 I have heard your message to briskly step through 10 these issues, and I will attempt to do, stating what the 11 issues are, what the options are for addressing the issues 12 and some of the major pros and cons for each, understanding 13' that you all have read the papers and know this material 14 already. So I will move right along.

15 On the first slide we have the four major 16 regulatory issues confronting the Commission and staff 17 presently. The regulation of the in situ leach facilities, la the disposal of material other than 11e. (2) byproduct 19 material and in tailings impoundments, the processing of 20 material other than the traditional natural ore in the

, 21 uranium mills, and, finally, concurrent jurisdiction.

22 I will discuss the first three of these four and 23 the options and the pros and cons.

24 CHAIRMAN JACKSON: These represent the issues in 25 total that the uranium recovery staff is involved with, or ANN RILEY & ASSOCIATES, LTD.

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S- 10 1 these are just the focus of your discussion today?

2 MR. STABLEIN: These are the major issues that we 3 are involved in and the ones that will be discussed today.

4 There are a lot of other issues that we are struggling with 5 as well, but this briefing could get even more complex. But 6 these are the ones we will focus on.

7 COMMISSIONER DICUS: So, we have to resolve these 8 first before we can go furthe'r to resolve the other ones, is ,

9 that what you are saying?

10 MR. STABLEIN: These are probably the ones that 11 underpin the regulatory framework that could hopefully deal 12 with the body of issues.

13 Could I have slide 2, please?

14 The first major issue is the regulation of the in 15 situ leach facilities and, not to confuse things, but under 16 this particular major issue, there are two important aspects 17 that we need to distinguish. The first one is the industry 18 view that NRC regulation of groundwater is duplicate of 19 EPA's Safe Drinking Water Act program, if in fact NRC has 20 jurisdiction at all over the groundwater in the wellfields.

21 The Safe Drinking Water Act provides a program, the -

22 Underground Injection Control Program, by which EPA and the 23 EPA primacy states assure the protection of groundwater and 24 protection from contamination. And it is the view of some 25 that NRC's efforts in this area are simply redundant and not ANN RILEY & ASSOCIATES, LTD.

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i l

S- 11 1 needed. 1 1

2 OGC has looked at the EPA program and has 3 concluded that NRC can rely on the EPA process. Based on 4 the comprehensive nature of the EPA's program and the 5 latitude that the Commission has in regulating in situ leach 6

facilities in the absence of specific regulations and laws, 7

OGC has concluded that the EPA program would provide an 8 adequate basis for us to defer regulation in this area.

9 CHAIRMAN JACKSON: But the industry's view is that 10 we really have no jurisdiction, is that correct?

11 MR. STABLEIN: That is the industry view.

12 MS. CYR: Our view is really that the agency has 13 sufficient flexibility, in terms of the nature of what our 14 authority is, that it lets us look at alternative ways of l

15 meeting that responsibility. We looked at the scope of the 16 EPA and it appears to us, and this would be subject to 17 further examination in the context of a rulemaking or a 18 specific case by case basis, but it appears to us, based on 19 our look, that the scope of their program is one that the 20 agency might well be able to rely on to meet is 21 responsibilities.

22 MR. STABLEIN: The second aspect of this issue of 23 regulation of in situ leach facilities is the question of 24 which of the many waste streams involved in the process 25 should be subject to NRC regulation by defining them as ANN RILEY & ASSOCIATES, LTD.

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S- 12 1.. 11e . (2) byproduct material. You have got the stream 2 involved with the-production bleed, which is the 3 over-pumping to keep fresh groundwater' coming into the area.

4 You-have got the actual extraction wastes where the uranium 5 is being concentrated in the process. And you have got the 6 restoration waste waters as the licensee attempts to restore 7 the groundwater. So each of these could be classified, 8 depending on your interpretation of 11e.(2) byproduct '

l I

9 material. as 11e. (2) or not, and some of the options we will l 4

10 be talking about hinge on this. I ll:L Right now the post-extraction waste waters are j 12 classified as 11e. (2) and the production bleed is classed as

'13 11e . (2) , whereas the. restoration waste waters are classed as 14 mine waters, mine waste waters which are subject to EPA or 1

U5 EPA state regulations.

16 One major part of this problem is that, depending 17 on how these streams are classified when the waste material 18 is moved to the evaporation ponds, there is a danger of 19 getting commingling of wastes and getting 11e. (2) and 20 non-11e . (2 ) wastes commingled together, and we have guidance

'21 that precludes non-11e. (2) waste being put into tailings -

22 . impoundments, leaving the industry in a difficult position.

23 Hopefully, we will address those in some of our options.

24 Could I have slide 3, please?

25 With respect to that first aspect that I l

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discussed, that is, the possibility of relying on EPA's 2 Underground Injection Control Program, the staff has 3 recommended that we defer regulation to EPA in this area.

4 The presence of ar_ EPA or EPA primacy state permit would 5 allow NRC to cease being concerned about groundwater 4 6

contamination, groundwater restoration based on the opinion 7

[.ofOGCandourstaffanalysis.

8 With respect to the second problem of which waste 9 streams are 11e.{2) and who should regulate what, we have 10 looked at four options. The first option is the status quo, 11 maintain the current situation. We would regulate 12 production bleed and discrete processing wastes as 11e. (2) 13 and the states and EPA would continue to regulate the mine 14 waste waters. This really continues to leave the licensees 15 with the problems dealing with how to dispose of the wastes.

16 However, I forgot to mention with regard to all 17 four of these options, we consider that health and safety 18 are protected by any of the four, perhaps more cumbersomely 19 by one than anyone, but all four are protective of health 20 and safety.

. 21 The second option that we have looked at is 22 classifying all of these liquid effluents as 11e.(2)

~

23 byproduct material and regulating them all under NRC. And 24 this has the positive value of providing regulatory clarity.

25 We would be responsible for them. It removes the ambiguity l

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S- 14 1 and eliminates dual regulation. So it doesn't provide for a  ;

l 2 reduction in NRC's regulatory burden on-licensees and staff ,

3 could use'more resources in reviewing, for example,

4. evaporation pond designs and it could affect our dam safety 5' program. In other words,.there are some staff resource 6 impacts to going this route, attractive as it is from the 7 point of view of clarity.

8 Going in the other direction, the NRC could, in a 9 sense, pull back and only be responsible for the wastes most 1

.0 directly related to the concentration of uranium in the ISL 11 process. This would mean that the production bleed, as well 12 as the mine waste waters, would not be under our purview, 13 because they wouldn' t be 11e. (2) material, and so we would 14 basically just have our Radiation Control Program in the 15 satellite facilities.and the central processing building.

16 The downside of this, or one possible downside is 17 that you'would have perhaps the creation of numerous on-site 18 disposal facilities all over the western United States which

19 would not be under NRC jurisdiction. However, it is true 20 that the states would be regulating these under their mining 21 regulations so that these would not be unregulated. -

22 Finally, Option 4, which builds on Option 3 4

23- really, it adds to seeking a legislative initiative in which 24 UMTRCA would be. amended to classify only the post-ion

.25 exchange wastes at the in situ leach facilities that is ANN RILEY & ASSOCIATES, LTD.

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S- 15 1 11e . ( 2 ) byproduct material. Now what this adds to Option 3 2 is that it would give Congressional mandate to the direction 3 that the NRC was going in. It would free us from the

) 4 litigative risk that would pertain to Option 3 in that we 5

are changing agency practice and direction, and so Option 4 6 is attractive in that sense. And the staff's recommendation 7 from all this was Option 3 or Option 4 -- Option 4, of 8 course, building on Option 3. I

~

9 {

CHAIRMAN JACKSON: What happens to restoration )

10 wastes from ISL operations today? l I

11 MR. STABLEIN: They can be disposed of in a number i

12 of ways. You have the sludge that develops from trying to 13 clean up the water. Depending on how it is defined, it can 14 be put with 11e. (2) material or it can be put in an 15 evaporation pond that is non-11e. (2) material, or it gets 16 commingled presently.

17 CHAIRMAN JACKSON: Did the staff consider the 18 option suggested by Dr. Fliegel? Is that how you pronounce 19 your name.

20 MR. FLIEGEL: Yes.

, 21 CHAIRMAN JACKSON: To give licensees an option of 22 how they designate the restoration wastes?

23 MR. STABLEIN: We considered it, but I don't 24 recall the specific discussion as to how that went.

25 Mr. Holonich.

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S- 16 j l

1 MR. HOLONICH: I don't recall either, but we did '

2 consider it. We looked at a number of options, including 3 giving licensees the ability to dispose of 11e.(2) on-site 4 under mining waste regulations for the state. We would have 5 to consult with the Commission but the AEA does allow us to l l

6 do that as an option, but the industry really is focused on 7 wanting to get out of the dual regulation perspective and '

8 believes that other than post-ion exchange waste, everything .

9 else should be considered as mine waste, so we really were 10 focused on that issue.

11 COMMISSIONER McGAFFIGAN: The Chairman just asked 12 a question with regard to how it is treated today. In the 13 paper it says that at least some of these wastes would 14 likely be classified at T-NORM, but if -- this, you are 15 referring to evaporation pond sludges. As I understand the 16 situation today, those are regulated by state today. So why 17 the "would likely be"? The states either have classified 18 them as T-NORM or they haven't. How do states classify this 19 material today? And how do they regulate it, do they 20 regulate it as T-NORM?

21 MR. STABLEIN: Well, my understanding was they -

22 regulate it as mine waste, and I am not sure what the T-NORM 23 addition adds to that. 1 24 MR. HOLONICH: I think "would likely" was just a l 25 poor choice of words, Commissioner. The waste that comes ANN RILEY & ASSOCIATES, LTD.

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S- 17 j 1

from post-uranium extraction activities such as reclaiming 2 the groundwater, we have said -- we look at that as a mine 3 waste. The states have been regulating that as a mine {

4  !

waste. I think the "would likely" was just a bad term, bad )

5 choice of words.

6 COMMISSIONER DICUS: If I could add, I think the 7

issue of T-NORM, I think the states are still struggling 8 with that. Now, CRCPD is here and I would like for them to 9 address that. But I think trying to come up with their 10 regulations and how they are going to deal with this, they 11 have a task force or maybe it is a commission now that is 12 dealing with T-NORM and I think that is a whole other realm.

13 So when a CRCPD representative talks, perhaps they can 14 address that.

15 COMMISSIONER McGAFFIGAN: That is exactly where I l 16 was headed. Given that they have been struggling with 17 T-NORM for many years, to come up with some sort of a l 18 regulatory scheme, and I guess the Academy of Sciences has 19 weighed in with some suggestions, if that is how they are 20 going to -- if that is how they are regulated, then there 21 may not be much of a framework. If it is mine waste, maybe 22 there is a framework for mine waste and I just may have 23 gotten confused by the paragraph. So today it is actually 24 regulated as mine waste.

25 MR. HOLONICH: Yes, that is correct. My ANN RILEY & ASSOCIATES, LTD.

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l S- 18 1 understanding is, for example, in the State of Wyoming it is i 2 regulated as mine waste, and I believe it is like four feet 3 of soil has to cover the waste, and that is sufficient to 4 take care of the reclamation.

5 COMMISSIONER McGAFFIGAN: Is there any sense of 6 what the radiation -- you said all these are protective of 7 public health and safety. What are the radiation 8 consequences of just burying this stuff in four feet? Has .

9 anybody done the back of the envelope calculation as to what 10 exposure would be for a typical -- for the use of that site?

11 MR. HOLONICH: The staff has not done any type of 12 analysis like that. We have deferred to the states under 13 their regulation. Maybe when the industry and Wyoming 14 Mining Association speaks, if they have got some background, I

15 they can give you a little bit of information on that. I 16 COMMISSIONER McGAFFIGAN: Okay.

17 MR. STABLEIN: If there are no further questions 18 right now, could I have Slide 4, please?

19 The second major issue concerns disposal of 20 material other than 11e.(2) byproduct material in tailings

21. impoundments. And the material under consideration here is -

22 material that is similar to what is already being put in the 23 tailings impoundments, low radioactivity waste like dirt and i 24 rubble containing uranium and thorium, for example. There 1

25 are large amounts throughout the country. This material is J l

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S- 19 1

a potential candidate to be disposed in the tailings 2 . impoundments, but it is not 11e. (2) material as defined.

3 The staff has guidance which was issued in 1995 on 4 when such disposal is acceptable and provided criteria that 5 the staff would use in making this determination. These 6

criteria did eliminate many types of material from disposal 7

and the key reason for this is, once again, the attempt to 8 avoid dual regulation with the states or with EPA. This 9 could complicate the regulatory framework unduly and 10 actually increase burden on licensees and make the 11 regulatory framework really untenable.

12 So DOE, the long-term custodian, is understandably 13 hesitant to accept sites for long-term care if they are 14 going to be dealing with multiple regulators, perhaps in 15 perpetuity. So, therefore, to avoid the dual regulation, 16 the staff in its guidance has precluded non-AEA material, 17 hazardous material and the like from the tailings 18 impoundments.

19 Industry has advocated expanding the use of the 20 sites to allow other types of material in. There is 21 capacity available. The possibility exists that cleanup of 22 various decommissioning sites throughout the United States 23 could benefit by being able to dispose of the material in 24 these tailing piles, and so industry sees a benefit to that 25 and industry is willing to consider putting almost -- even ANN RILEY & ASSOCIATES, LTD.

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S- 20 1 things like limited amounts of special nuclear material, 2 11e.(2) byproduct material. They have asked us to think 3

outside the box as far as what could go into the tailings 4 impoundments.

5 COMMISSIONER MERRIFIELD: Chairman.

6 CHAIRMAN JACKSON: Yes, please.

7 COMMISSIONER MERRIFIELD: .

Could you, just briefly, 8 could you explain the characteristics of the typical j

' i 9 tailings piles and the protective structures underneath in 10 terms of liners and monitoring facilities and things of that f

11 nature? What are our requirements on that and what are some  !

{

12 of the facilities we have out there?

13 MR. STABLEIN: I can probably start on this and 14 ask Mr. Holonich, who is much more familiar with these 15 structures, to add to them. They are required to be lined is and the material has to be a relatively impermeable liner.

17 We need a cap, a radon cap cover on these impoundments.

18 They need to be designed to protect against erosion by 19 various rock sizes.

20 COMMISSIONER MERRIFIELD: Let me ask a more l

21 directed question. One of the things that is under -- one -

22 suggestion is that some of these piles would be allowed to dispose of materials, TSCA contamination, RCRA 23 24 contamination, CERCLA contamination. To what degree are 25 these impoundments consistent with the requirements that EPA ANN RILEY & ASSOCIATES, LTD.

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S- 21 1 has for the liners for facilities which dispose of those 2 materials?

3 MR. STABLEIN: Let me start on this and then 4 invite Mr. Holonich in. My understanding is that the 5 impoundments are designed to be able to meet the 6 requirements of at least the Solid Waste Disposal Act and 7 the requirements are at least as stringent as for materials 8 that would be disposed of under that Act.

The requirements 9 are --

10 COMMISSIONER MERRIFIELD: I'm sorry, I don't mean 11 to get to this level of detail. Subtitle (d) or Subtitle '

12 (c) of Solid Waste Disposal Act, because it is a significant 13 l difference?

l 14 COMMISSIONER DICUS: I think the basic -- have we 15 worked out our differences with EPA on disposal of mixed 16 waste? And I think that is what --

I 17 COMMISSIONER MERRIFIELD: That is part of what I i 18 am getting to.

l 19 COMMISSIONER DICUS: Where are with that?

20 MR. HOLONICH: Let me maybe just step back a

, 21 little bit and talk about what is in the Act today and what 22 is in the tailings and what is in our regulations. Section 23 275 of the Act required that the administrator promulgate 24 standards for non-radiological constituents in mill tailings 25 that were the same as Subtitle (c) of the Solid Waste ANN RILEY & ASSOCIATES, LTD.

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S- 22 1 Disposal Act, 2 It then said the administrator should not issue 3 any permits under that Act because it wanted to keep with a 4- single federal regulator. They promulgated standards both

.5 for radiological and non-radiological protection, first, for 6 surface reclamation and then later for groundwater 7 protection. Those groundwater protection standards were 8 incorporated into our regulations in 10 CFR Part 40, 9 Appendix A, Criterion 5. Those requirements include design 10 of impoundments for events that you expect at the site, 11 liners, cleanup standards for radiological and 12 non-radiological constituents, including maximum 13 concentration limits, alternate concentration limits and 14 background.

15 The sites that were in existence prior to that are 16 unlined cells because they were built before our groundwater 17 regulations took effect. Cells that were built subsequent 18 to that are lined. So you can go into mill sites, there is 19 at least one I can think of that has several unlined cells 20 and several lined cells, depending on when the cells were 21 met. -

22 So if you go into our regulations, EPA gave us 23 standards for non-radiological like selenium and things that 24 we have incorporated into Part A -- Appendix A, I'm sorry --

25 as well as radiological like radium. The composition of the ANN RILEY & ASSOCIATES, LTD, Court Reporters 1025 Connecticut Avenue, NW, Suite 1014 Washington, D.C. 20036 (202) 842-0034

S- 23 1 . tailings is basically the ore with uranium removed, so you 2 have got radium, thorium, things that you would find 3 naturally in the ore, as well as the chemicals that were 4 added to extract the ore, ammonia and other solutions that 1 5 were used in the extraction-process.

6- COMMISSIONER MERRIFIELD: But would you say that l i

7 tthe impoundments that have been built since EPA promulgated 8: those regulations, and we have implemented in a consistent 4

9 fashion or our own regulations, are ours consistent with 10 Subtitle (c) facilities then?

11 MR. HOLONICH: Yes. We sent the letter to EPA 12 back about two years ago that said we have done this work, 13 we think we are consistent, and if wa don't hear from you, 14 we will work with the assumption that you guys believe it is 15 consistent also. We also met with the office director down

'16 .there and, basically, they said they were not going to look 17 at the compatibility question any more.

18 Now, John, did you want to add something? l l

~19 MR. GREEVES: Commissioner Merrifield's question I )

20 think goes to the circle cells that they are building 21 nowadays with double liners, leach A collec?. ion systems, and 22 I don't think any of these facilities have double liners, 23 leach A collection systems like the ones maybe you are i 24 familiar with. That is a design specification in CERCLA 25 space. And Joe, correct me if I am wrong, but we don't have ANN RILEY & ASSOCIATES, LTD.

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S- 24 1< ~ double liner, leach A collection systems out there. Maybe 2 .the licensees can clarify that.

3 What we have is liners consistent with Part 40,

4 which is also consistent with the EPA regulations that were 5 put out for mill tailings facilities. There is a 6 difference, I don't want you --

7 COMMISSIONER MERRIFIELD: There is.

~

8' MR. GREEVES: There is a difference.

9 COMMISSIONER MERRIFIELD: Subtitle (c) facilities 10 require double liners and leach A collection.

-11 MR. GREEVES: Correct.

12 COMMISSIONER MERRIFIELD: Okay.

13 MR. HOLONICH: I think we do have some double 14 -lined cells with leak detection systems in them. I believe 15 White. Mesa is one of the sites that has double liners.

16. COMMISSIONER MERRIFIELD: I have gotten in a far t17 greater level of detail than I should and I would be 18 interested in getting some more detail in the staff later on 19 on that.

20 Just one last question as a follow-up, are we 21 being asked by some of the people who will be testifying -

22 today to allow disposal of those types of materials in cells 23 which are unlined,.or will they only be in cells that are 1

24 lined?- Or do they make a distinction? '

25 MR. HOLONICHi They don't make a distinction, but ANN RILEY & ASSOCIATES, LTD.

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S- 25 1

I believe it would be lined cells because it would be all 2 the new cells.

'3 CHAIRMAN JACKSON: Why don't we ask them?

4 COMMISSIONER MERRIFIELD: Yes.

5 CHAIRMAN JACKSON: Why don't you go on?

6 COMMISSIONER MERRIFIELD: Thank you.

7 MR. STABLEIN: Could I have Slide 6, please?

8 Five, I think. Sorry. That is moving along a little too  !

9 quickly. Thank you, yes, that's the right slide.

j 10 Well, we have talked about the cells a bit. l Let's l 11 talk about the three options to address this particular l 12 issue. Unfortunately the third option dropped off of the 13' slide, but I will resurrect it for you when we get to it.

14 The first option is to retain the current 15 guidance, limiting to certain kinds of AEA material what can 16 go-into the tailing impoundment. And of course-this has the 17 advantage that we remain the sole regulator of the 18 radiological material in the pile. But this doesn't really 19 do anything to make use of the tailings piles for cleanup of l 20 I

other sites and disposal of materials from decommissioning

, 21 sites or other places.

22 The second option is to revise the guidance to l 23 allow more flexibility in using the disposal capacity of the 24 tailings piles and to finalize this rulemaking to give it 25 good codification as the agency practice. If we went this ANN RILEY & ASSOCIATES, LTD.

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S- 26 1

route, we would remove many of the prohibitions currently in 2, place on materials that could be put into the tailings pile, 3 and I am sure we would have to work through which materials 4

we would feel comfortable putting in the tailings pile.

5 And, you know, this would make -- allow for more use of the 6 impoundments for disposal of materials from other sites, but 7

it opens up the possibility of multiple regulators being 8 involved and, hence, we.'would have to be working with the .

9 long-term custodian for their concurrence and commitment 10 .that they would take the site even if it has these --

11 CHAIRMAN JACKSON: Non-AEA. l 12 MR. STABLEIN: Non-AEA materials.

13 CHAIRMAN JACKSON: What about the third option of 1 14 legislative.

15 MR. STABLEIN: Well, that is the one that rolled j

16 off the slide for some reason, but that is the third option.

I 17 And it is, of course, the staff's recommended option, which

]

18 would seek legislative change to provide Congressional 19 certainty to the decision to expand the use of tailings 20 impoundments to remove this possibility of multiple 21 regulation. That is, in fact, the third option, Chairman. -

22 CHAIRMAN JACKSON: So it should be on here.

23 MR. STABLEIN: It should be on here. I apologize, 24 CHAIRMAN JACKSON: Okay. Commissioner. 1 l

25 COMMISSIONER McGAFFIGAN: Madame Chairman, Mr. ]

i 1

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S- 27 1

Fliegel gives us language for his legislative change. I 2

mean my sense, reading the paper, reading his DPV, you are 3' awful close. But could you -- since you didn't provide 4

language for your legislative change and he has language 5 here, would you go beyond him in the sort of materials that 6 would be allowed, or where is the difference between him and you if are.both in agreement that a legislative option would 7'

8 be the best option?

9 MR. STABLEIN: I am sure that Mr. Fliegel will 10 speak to this. I would say that I think we are very close 11 as well. I just haven't written up my exact language yet

12. that I would propose for a leginlative package. It will 13 have to be worked with the Office of General Counsel to see 14 what-we finally come up with.

15 I feel that the DPV'ers and Mr. Fliegel, in this 16 case, have had an effect on the staff's position and that we 17 have moved closer together since the original DPV was 18- written. But Mr. Fliegel will no doubt comment on this.

19 .Now or later, as you wish.

20 CHAIRMAN JACKSON: We will finish your 21

, presentation. Try to keep it orderly, difficult though it 22 may be.

23 MR. STABLEIN: Could I have Slide 6, please?

24 Moving to the third major regulatory issue that is 25 ' confronting staff and the Commission is the consideration of ANN RILEY & ASSOCIATES, LTD.

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S- 28 1 processing materia". in uranium mills other than the natural 2 ore that has traditionally been the feed stock for mills.

3 Of course, that is what is currently being used in mills.

4 But the 1995 staff guidance on processing alternate feed 5 material and Presiding Officer's decisions in 1993 and 1999 6 hearings on license amendments involving applications to 7 process such material are presently before the Commission 8 and I will attempt to avoid any -- going places I shouldn't .

9 go with this. I am only going to dencribe the issue and 10 leave it at that.

I 11 A key criterion in the staff guidance requires i

12 mill licensees to demonstrate that they will be processing 13 the alternate feed primarily for its source material 14 content. In the 1993 hearing on the license amendment 15 request, the Presiding Officer indicated that the staff 16 should consider a financial test to ensure that the licensee 17 is in fact processing this material for financial gain, that 18 they are not just running the material through the process 19 so that it can be legally reclassified 11e. (2) material and 20 thereby being put into the tailings impoundment.

21 In the 1999 hearing on a similar amendment .

22 request, the Presiding Officer interpreted "primarily" 23 differently. He interpreted it to mean merely that the 24 licensee actually did run the feed through the mill and did 25 extract uranium from that material without regard :or t.e N ANN RILEY & ASSOCIATES, LTD.

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l S- 29 1

financial benefit that accrued from removal of that uranium.

2 Hence, his decision would reverse or overtake the 1993 3

decision, and this 1999 decision has been appealed to the 4 Commission.

5 CHAIRMAN JACKSON: Let me ask OGC a question.

6 Should the Commission action on this generic issue wait for 7 the specific adjudicatory action to be completed?

8 MS. CYR: The Commission has the option of dealing 9 with a generic.

10 CHAIRMAN JACKSON: Even with the pending 11 adjudicatory. But doesn't the existing guidance include 12 methods of justification other than a financial test?

13 MR. STABLEIN: It does indeed, yes. There are a 14 couple of other tests that would still be in place even if 15 this criterfon were removed. You have got --

the 16 "primarily" test would still exist, as I described it. You 17 also have a direct disposal test. If the material could 18 already be disposed of right in the tailings impoundment as 19 11e. (2) and they choose to process it, well, it is clear 20 that they are processing it for the uranium content. There

, 21 would be no point in running it through just -- there is no 22 --

it would not be a sham disposal situation.

~

23 CHAIRMAN JACKSON: Right. Did you have a 24 question, Commissioner McGaffigan?

25 COMMISSIONER McGAFFIGAN: Yes. I am just trying ANN RILEY & ASSOCIATES, LTD.

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S- 30 1 to understand the interplay between -- again, I have Mr.

2 Fliegel's legislative language in front of me, which I am 3 sure is not blessed by OGC and lawyers will perfect if it 4 ever becomes Commission position. But if his language were 5

enacted, this whole issue, it strikes me, tends to go away 6 because it is defining stuff as 11e. (2) that could go to the 7 -- you wouldn't have, you know, the processing -- it would .

8 be able to be disposed of, under his language, "can be .

9 disposed of as a licensed uranium mill tailings 10 impoundment." And so you would be -- you wouldn't be -- if 11 they processed it, like you just said, if somebody chose to 12 process something that could directly go to the impoundment, 13 to the tailings pile anyway, then they must be processing it 14 for its source material value. So, just is there an 15 interconnection between these two issues?

16 MR. STABLEIN: Mr. Holonich?

17 MR. HOLONICH: Yes, there is clearly is, and you 18 have got it Commissioner. Is if you define materials, 19 11e.(2) byproduct material than can go into the tailings, it 20 is not covered by the definition now, then, in fact, if you 21 bring it into the mill and run it through the mill, because -

22 you have defined it already as 11e. (2) , you have taken care 23 of the sham disposal question because you are purely 24 processing it to get the uranium out now. So, yes there is 25 an interconnection. l 1

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S- 31 1 COMMISSIONER McGAFFIGAN: So the legislative 2 solution, whether it is Mr. Fliegel's or something close to 3 it that you haven't written yet, simultaneously solves this

'4 issue to a large degree.

5 MR. HOLONICH: To a large degree. But I am not 6 sure what other material may be out there that they would be

+ 7 considering that might not be covered by the legal 8 definition.

9 COMMISSIONER McGAFFIGAN: Okay.

10 CHAIRMAN JACKSON: Please.

11 MR. STABLEIN: There are clearly two options for 12 addressing this major issue and they are dependent upon the 13 . Commission decision on the 1999 appeal. Either the existing 14 guidance would be retained, including the financial test for

'15 '"primarily" or the guidance would be revised in keeping with 16 the Commission decision to overturn the financial test.

17 ,

So those are the two options. The staff has 18 . recommended the second of the two to modify the existing I

19 guidance. I might say that our revised guidance would also )

20 include a performance-based amendment whereby the licensees 21 wouldn't have to come back to the staff every time they l

1 22 wanted to process alternate feed material. All that they l

23 would have to do is to assess the material that they are 24 consideringlto run through the mill to see whether it is 25 reasonable to process it for its uranium content, and this ANN RILEY & ASSOCIATES, LTD.

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i S- 32 1 is same kind of decision they need to make, and do make, 2 with natural uranium ore. So it is an attempt to make this 3 easier for the licensees.

4 COMMISSIONER DIAZ: How do you plan to address the issue of non-agreement states' jurisdiction over the 5

6 non-radiologica] components of 11e. (2) ?

7 MR. STABLEIN: That is the concurrent jurisdiction 8 question which is my next issue.

9 COMMISSIONER DIAZ: Oh, I see.

10 MR. STABLEIN: I think on the next slide, in fact, 11 Commissioner Diaz.

12 COMMISSIONER DIAZ: Okay. Good.

13 MR. STABLEIN: So maybe we should move to Slide 7, 14 please.

15 COMMISSIONER DIAZ: It was not covered in your 16 paper.

17 MR. STABLEIN: You are perfectly correct. As Dr.

18 Paperiello has stated in his introduction, the staff is 19 working with the Office of General Counsel to determine what 20 recommendations should be made regarding the concurrent 21 . jurisdiction issue. Once this effort has been completed, -

22 the staff will be presenting a paper to the Commission with

23. those recommendations, and I am not prepared today to go 24 further.

25 COMMISSIONER McGAFFIGAN

Can we -- is it fair to ANN RILEY & ASSOCIATES, LTD.

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S- 33 1 ask the timing of when this might be sent the Commission?

2 MS. CYR: My staff has prepared an analysis to go 3

back and look and see whether there is a basis for any 4 change in views of the earlier opinion. I have not have a i 5

chance to review that in depth, but we are getting close.

6 COMMISSIONER McGAFFIGAN: Because I think it would

• {

7 be useful to treat this whole thing as a package. j 1

8 1 J COMMISSIONER DICUS: To have the fourth paper, ,

l 9 yes.

10 CHAIRMAN JACKSON: What do you think, Karen?

11 MS. CYR: Once we reach our conclusion, I am not 12 -- I don't know the extent to which we need to go back and 13 work with the staff one way nr the other with it. I would 14 say within a month. I am not sure we can do it much faster 15 than a month.

16 CHAIRMAN JACKSON: Okay.

17 MS. CYR: We might be able to do sooner than that, l

18 but I would say we could do it within a month.  !

19 COMMISSIONER DICUS: That might work.

20 MR. STABLEIN: Could I have Slide 8, please? l l

, 21 We have discussed three major issues this morning l

22. in a little bit of detail. Depending on Commission 23 direction, Part 41 would provide the vehicle for 24 incorporating the revised regulatory framework for uranium 25 recovery facilities and for having an integrated, coherent, ANN RILEY & ASSOCIATES, LTD.

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S- 34 )

1 stand-alone rule for these facilities.

2 It would be most important that the Part 41 codify 3 the regulatory framework for the three issues that we have 4 talked about today, the regulatory framework for in situ

.5 leach facilities, the criteria addressing disposal of 6- material other than 11e. (2) in tailings impoundments, and i

7 the processing of alternate feed. As well, and I am sure 8 the Commissioners are aware of this from reading Part 40 -- ,

j 9 the Part 41 rulemaking paper, we have many ideas for 10 clarifying the existing regulations, removing redundancies i 11 or inconsistencies that you find now in Part 40 and Part 40, 12 Appendix A,-which could be dealt with in this one 13 ' rulemaking.

14 CHAIRMAN JACKSON: How many existing sites would 15 be affected by this rulemaking, by this revision and 16 codification?

17 MR. HOLONICH: There are currently 10 license 18 sites that could be impacted by the rulemaking, depending on 19 how~much you want to backfit in the rule. New sites that 20 ,p are under review, we have got one active application, I v21 t-hink that will probably be done before the rulemaking will =

22 come out, so it will be just -- it v.1. be an operating site 23 with the others.

24 There are probably nine or ten other properties 25 that are left to be developed, that people have identified ANN RILEY & ASSOCIATES, LTD.

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S- 35 1 to us that, as those get licensed, would be licensed under 2 this requirement, those are probably.the ones that will be 3 impacted the most in terms of the new rule. And I am not 4

sure impacted as much as maybe have a more stable regulatory 5 framework that they could be licensed under.

6 CHAIRMAN JACKSON: What does that represent of the

• 7 universe of sites?

8 MR. HOLONICH:

In terms -- those are the NRC 9 sites. There are about 10 operating, one under -- two under 10 active review, but one is maybe going-to be pulling back, 11 and 10 properties that are in states that we regulate.

12 There are agreement state activities that could impact, 13 could be impacted by in. In Texas there are a few operating 14 in situs, there are many more under reclamation, so I think 15 the impact there is not going to be very great. And in 16 Colorado there are a couple of mills, only one of which is 17 operating, so I think the rest would probably be reclaimed 18 before -- or are close to being reclaimed before the rule 19 would go out.

20 CHAIRMAN JACKSON: Mr. Greeves, you were going to 21- make a comment.

22 MR. GREEVES: I just wanted to make sure we 23 recognize the agreement state situation. Maybe you can hear 24 more from the agreement states.

25 COMMISSIONER DICUS: Do we have a reason to ANN RILEY & ASSOCIATES, LTD.

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S- 36 1 believe the agreement states are going to address this, that 2 the representative states,.maybe is something they should

.3 they address when they come to their panel.

4 MR. GREEVES: For completeness.

5 COMMISSIONER DICUS: We will ask them.

6- .MR. STABLEIN: In summary, times have changed, the 7 industry has changed. Issues have arisen that need to be 8 addressed in the regulatory framework, and legislative 9  : clarification would be a big help in this effort. Staff is 10 looking co the Commission for direction on how to proceed on 11 all these issues. And the staff intends the completion of 12 Part 41 and codification of the revised regulatory framework 13 consistent _with Commission direction will hopefully enhance 14 the overall uranium recovery regulatory process. Thank you.

15 CHAIRMAN JACKSON: Thank you very much.

16 Any further questions? Commissioner Dicus?

17 Commissioner Diaz?

18 COMMISSIONER McGAFFICAN: I have one question that 19 relates to fees. In one of the papers it mentions that 20 hearing costs can't be collected on 170 fees and go into 171 21 the annual fee, and we have obviously had some hearings. .  ;

22 And the suggestion is made that this clarification effort j 23 might reduce the necessity for hearings. Does this, writing 24 'all these papers also go into overhead and go into 171 fees q l

-25' as well? Because, obviously, this group of folks just had i

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S- 37 1 -their fees / increased significantly. And how much of it is 2

the heav'.ngs and how much of it is the effort to clarify the 3- framewor.?

-4 CHAIRMAN JACKSON: I think the fee question is

~5 something that either Carl or you get the CFO to address. I 6 don't think --

• 7 COMMISSIONER McGAFFIGAN: Well, it is in the 8 paper.

9 CHAIRMAN JACKSON: I know.

10 COMMISSIONER McGAFFIGAN: You know, as argument

-11 for why we want to go forward.

12 CHAIRMAN JACKSON: Do you want to make a comment?

13 DR. PAPERIELLO: It is certainly a factor. The 14 _ program is small and the ratio of direct to indirect effort 15 is something I watch and I am very concerned with. But, 16 yes, writing the papers and doing rulemaking all impact the 17 fees. I don't know, I am sure I could find out exactly the 18 -FTE expended in hearings. And, of course, some of that is 19 not just NMSS FTE, it Lepresents OGC FTE, too.

20 But, yes, they are significant when the program is 21 as small as this program is.

22 CHAIRMAN JACKSON: Okay.

23 COMMISSIONER MERRIFIEI.D: Chairman.

I 24 ~ CHAIRMAN JACKSON: Yes, please. I am sorry. I 25 COMMISSIONER MERRIFIELD: There are a variety of ANN RILEY & ASSOCIATES, LTD.

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r-S- 38

-1 questions that are raised by some of the other individuals 2 and groups that will be testifying today about where we are 3 . relative to the other agencies that we are dealing with, 4 most notably DOE and the Environmental Protection Agency.

5 .There obviously are some suggestions made in these papers 6 about how we might interact with them, and I wondering if 7 you could discuss briefly the interactions that we have had 8- with those two entities over the last six months or so in ,

9 -the development of these papers and where we are going to go 10 from here.

11 MR. HOLONICH: With respect to DOE, we have talked

-12 regularly with DOE, both the Grand Junction office and 13 headquarters about what was going on here. We made the 14 aware of the NMA White Paper and the fact that it could i

15 change some of the legal definition of the material in the 16 tailings from 11e. (2) to material other than 11e. (2) . So, 17 in my mind, and they are going to be addressing you a little 18 later, and they can clarify that, but in my mind they are 19 well aware of the industry position and what we have been 20 doing.

21 We were just at a workshop at the beginning of 8 22 June where the DOE Grand Junction program office was 23- represented and they heard a briefing on these papers, they

{ 2:4 heard questions from the industry. We answered questions.

25 I think one important point is even in the revised guidance, ANN RILEY & ASSOCIATES, LTD.

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h S- 39 1 one of the main criterion in there still says DOE or the 2 long-term custodian, if it is the state, has to agree to 3 take the site. So there is a big powerful role for DOE or 4 the long-term custodian in accepting material other than 5 11e . (2) in the guidance. We did not want to remove that 6 provision from the existing guidance and so we kept it 7 there. And, in fact, I made a similar statement with the 8 DOE reps in the workshop a couple of weeks ago, that we 9 still view that as a very big gate through which the 10 licensees have to pass, so we still look to DOE to have a 11 lot of control in terms of what goes into these tailings.

12 With respect to ?A and the groundwater at 13 solution mines, we have really been dealing more with the 14 states because they have the primacy and the State of 15 Wyoming has been and is the biggest state -- the only state 16 right now where we have license facilities. They have given 17 us comments back in August of last year, Part 41 and the ISL 18 rulemaking effort incorporating ISL requirements into the 19 rule. We have given them copies of the White Paper. They

)

20 have had attendance at the workshops. We went over the )

, 21- White Paper with them. So the real focus because of Wyoming 22 taking on the EPA primacy has been Wyoming.

23 Now, EPA did have'some reps from the Denver office 24 there,-but they are really more in terms of the tailings 25 activities, not the groundwater activities.  !

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f S- 40 1 COMMISSIONER MERRIFIELD: It might be worthwhile 2- for us, I know we have had other occasions where we haven't 3 necessarily agreed with EPA, but this may be an area where 4 further coordination, if we go down this path, would be 5 appropriate in that regard.

6 The second question I have, very briefly, a lot of 7 the proposals here are based on legislative solutions. Have 8 you had discussions with Dennis Rathman and the folks at the ,

9 Office of Congressional Affairs to identify who we might 10 seek out to assist us in some of those efforts up on Capitol 11 Hill?

12 MR. HOLONICH: I have not. I don't think anybody 13 on the staff has.

14 COMMISSIONER MERRIFIELD: One of the comments that 15 was made by the. National Mining Association is that, given 16 the time in the legislative calendar, depending on a 17 legislative strategy, it is going to be very difficult at 18 this point. From a personal perspective,-knowing, you know, 19 what I do about the Hill, my sense and I don't know if you 20 guys have any information to the contrary, this is not an 21 ' issue that I think is particularly high on the Senate -

22 legislative calendar. For us to rely so heavily on Congress 23 to make determinations about where we should go, given that 24 fact, I think is, in my eyes, somewhat dubious.

25 MR. HOLONICH: Commissioner, I think what we tried ANN RILEY & ASSOCIATES, LTD, Court Reporters 1025 Connecticut Avenue, NW, Suite 1014 Washington, D.C. 20036 (202) 842-0034

S- 41 1 to lay out in the paper was that we saw that the Commission 2 had some flexibility in how it wanted to address these 3 issues, and here were things we could do such as revising 4 guidance or codifying rules. But we felt that the best 5 solution, the most definitive solution would be through 6 legislation. I think if you step back and look at some of 7 the' recommendations like revising guidance, we think you 8 have got some latitude there if you want.

9 COMMISSIONER MERRIFIELD: No , I agree. I mean 10 many of your proposals do involve layers of options. But in 11 some circumstances, some of the papers call for the ultimate 12 option being a legislative one and I think that is -- given 13 this issue, I think that will be difficult.

14 CHAIRMAN JACKSON: I think it is important in 15 terms of rulemaking and how the Commission deals generically 16 with this issue, for the Commission to have clarity. I 17 guess I am putting this to OGC as to where the legislation 18 has to be, the ultimate backstop vice what the Commission 19 can do itself, based on the existing legal framework.

20 COMMISSIONER McGAFFIGAN: Not to differ too much

, 21 from my colleague, but I do worry on some of these issues 22- that without legislation, going through a complex --

23 CHAIRMAN JACKSON: Rulemaking.

24 COMMISSIONER McGAFFIGAN: Heavily adjudicated 25 rulemaking process, following by appeals of the rulemaking ANN RILEY & ASSOCIATES, LTD.

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S- 42 1 in the Appeals Courts and whatever, it may not be any faster l

2 even if Congress doesn't get to it this session. I don't j 3 see a quick solution to any of this, or any process that I 4 am aware of.

5 COMMISSIONER MERRIFIELD: Not to drag this on 6 further, but it appears we have a lot of --

7' COMMISSIONER DICUS: But you are.

8 COMMISSIONER MERRIFIELD: Well, I mean -- well, I ,

9 am responding to my colleague.

10 [ Laughter.)

11 CHAIRMAN JACKSON: Go, Jeff.

12 COMMISSIONER DICUS: Go for it.

13 COMMISSIONER MERRIFIELD: You know, I don't 14' disagree with that, but the fact remains, you know, unless

-15 sui sponte, the folks at the Office of Congressional Affairs 16 have gone up and talked to people up on Capitol Hill about

'17 this, what we have is a whole series of things that we are 18 thinking about doing, but with which we have really not had 19 sufficient' activity up in Congress to determine whether it 1

20 is worth our going through that effort. j 21 CHAIRMAN JACKSON: Right. -

22 COMMISSIONER MERRIFIELD: And so I think, you j 23 know, before we start going down a road that is going to 24 involve a lot of activity and effort on the part of our i 25 staff. I think'we should have a better understanding about ANN RILEY & ASSOCIATES, LTD.

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S- 43 1 where the authorizing committee is coming from, and whether 2 'what we are coming up with is --

3 CHAIRMAN JACKSON: Is re'alistic.

4 COMMISSIONER MERRIFIELD: Is realistic and 5 something that will be acceptable.

6 CHAIRMAN ~ JACKSON: Right. And that is why I think 7 the two things really rest on what Commissioner Merrifield 8 has said, and I think my. question to Ms. Cyr, namely, to 9 have more definitive clarity, if that makes sense, with 10 respect to what is really in our hands.

11 MS. CYR: We felt that all -- I mean all the i

12. options that'the staff proposed here, there was a basis in {

1 13 .our current authorities to proceed along those lines. I )

14 think Mr. McGaffigan's point is true, I mean they are 15 complicated arguments. We are going back and we are 16 reassessing how we have looked at processing in the past,

17. how we have defined that. We have to go through a process 18' of explaining why we are changing our position from one to 19- the other. That-is subject to challenge, the rulemaking 20 outcome is subject to challenge. l

, 21 CHAIRMAN JACKSON: That is the way it is.

22 MS. CYR: But that is the way it is. So, I think

~

23' the staff's point is you might shortcut some of that if you 24 found -- if you had Congress interested ~in moving in this 25- area and resolving it that way.

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4 S- 44 1 I

1 CHAIRMAN JACKSON: But I think we can take up this 2 notion that we need to have some interaction through 3 . Congressional Affairs as to what is realistic on what kind 4- of time scale, which is your point.

5 Okay. I think we have said all we can say on 6 this. Let us hear from Mr. Ford and Mr. Fliegel.

7 Did you have a comment? '

8. COMMISSIONER DIAZ: I just had a comment since my ,

9 mind can only do arithmetic at this time. I just make some 10 numbers and it looks like at the rate we are going this 11 briefing will last seven hours.

12 CHAIRMAN JACKSON: Well, that is why we are moving  !

13 on.

14 [ Laughter.]

15 COMMISSIONER _DIAZ: I just wished to point' it out.

16 CHAIRMAN JACKSON: Right. Thank you.so much.

17 Mr. Ford.

18L COMMISSIONER DICUS: You know there is a pool, the

-19 staff I understand has a pool on how long -- a betting pool 20 on how long this briefing will last.

21 CHAIRMAN JACKSON: I will tell you what, you will .

22 be able to pay your mortgage.

23 [ Laughter.]

24 MR. FORD: William Ford. First slide, please.

'25 CHAIRMAN JACKSON: Would you please pull the 1

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1 S- 45 1 microphone closer?

2 i MR. FORD: Sure.

3

.I am William Ford and I would like to thank the 4 Commission for the chance to speak to you. I will try and 5 be brief. I wrote the differing professional view on 6 regulation of liquid effluent from in situ leach facilities.

7 Mike Fliegel also wrote a similar one on a smaller section 8 of it.

So there is two DPVs on this same issue.

9 This issue doesn't -- well, it talks about liquid 10 waste at in situ facilities. It is also concerned with 11 contaminated piping, equipment, basically, all the waste 12 that comes in contact with liquid. It is concerned with 13 contaminated soil. So it is more than just waste and 14 impoundments.

15 It is also concerned, as you get into it, with 16 safety of the worker from a radiation health standpoint.

17 Second slide, please.

18 My recommendation in this differing professional 19 view is that the Commission should approve Option 2. Option 20 2 is that all the groundwater that is contacted by lixiviant

, '21 underground, whether it is in the restoration phase or the 22- mining- phase is basically 11e. (2) material. Therefore, all 23 the waste, contaminated pipe, equipment, soils, would also 24 be . handled as 11e. (2) . It would either go to an 11e. (2) 25 disposal site or it would have to be decontaminated and ANN RILEY & ASSOCIATES, LTD.

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S- 46 1 released under our regulations.

2- My other opinion is that Option 4, which is the 3 legislative option, in my opinion at this time is undefined.

4 It is not explained what will be done to resolve the waste 5 issues at in situ facilities. Therefore, I recommend that 6 if the Commission choose Option 4, that until Option 4 7 becomes a reality passed by Congress, that we should .

8 implement Option 2.

9 Next slide, please, that would be Slide 3.

10 COMMISSIONER McGAFFIGAN: Madame Chairman, could I 11~ -just' clarify?

12 CHAIRMAN JACKSON: Yes.

13 COMMISSIONER McGAFFIGAN: You are basically saying 14 you don't agree with the existing guidance that puts these 15 restoration waste waters in EPA and state hands?

16 MR. FORD: I am basically saying that I don't 17 agree with the current staff position the way we handle 18 things with waste, and the proposal Option Number 3. Those 19 two options I don't agree with.

20 COMMISSIONER McGAFFIGAN: And just to clarify, 21 Option 4, I am not sure it is -- while they didn't put

• 22 ~ language down as Mr. Fliegel did, they do say that under 23 Option 4 they would seek Congressional approval of 24 essentially Option 3, that only post-ion exchange wastes are l

25 ._11e.(2) byproduct material. You are opposed to that because l ANN RILEY & ASSOCIATES, LTD.

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S- 47 1 -- or what is it about Option 4 that you are --

2 MR. FORD: Okay. The problem I am also -- I have 3 a problem with Option 3, and we will get to that. Option 4, 4 I looked at those same words and I couldn't decide if they 5 told us where in the process in Option.4 they would make 6 their decision. Would it be identical to Option 3? It 7 would be similar to Option 3. So I wasn't sure.

8 CHAIRMAN JACKSON: Let's let him walk through his 9 presentation, and then if there is any point that we feel he 10 has not address or you would like clarification on, we will 11 ask him.

12 MR. FORD: Option 1, what I want to point out on 13 Slide 3 is that these are some of the major problems that I 14 have with the current approach that we have, which is that 15 when you go to a restoration phase, that at that point in 16 time the groundwater is no longer 11e.(2), it is only 17 11e.(2) when you are actively extracting uranium.

18 The problem I have with that is that I am afraid 19 that it encourages on-site disposal. The bulk of the waste 20 comes out when you go under groundwater restoration, so the

. 21 bulk of the solid waste in the ponds will -- or land 22 application, however it is disposed, will be produced by 23 restoration fluids. So I am afraid that it-would create --

24 encourage the creation of many small disposal sites, these 25 in situ facilities, as opposed to collecting this material ANN RILEY & ASSOCIATES, LTD.

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] S- 48 1 .and centralizing it and disposing of it under our

)

i 2 ' regulations, and DOE would then look over it. '

3 I am afraid that it might weaken regulatory 4 authority over liquid, air and solid emissions from 5 conventional and in situ 11e. (2) facilities. Basically, 6 what you are saying is that you have had an 11e. (2) process, 7 that that process contaminated groundwater, and now when it '

8 comes to cleanup of the groundwater, it is not our problem .

9 anymore. It is the same as like if you had an air emission, 10, you contaminated the air from 11e. (2) process and once it 11 has contaminated the air, we don't care, or soil. So if you 12 have dripping water on soil, then if it happened during the 13 restoration phase and contaminated the soil, we don't care.

14 If it happens during mining, we care.

15 So it would seem to me that this raises the issue 16 of emissions. Do we regulate emissions from 11e. (2) l'7 facilities? Are we responsible for cleanup, be it liquid,

-18 air or solid of. conventional or in situ facilities?

19 I am afraid that it also, in my opinion, increases 20 confusion over the regulation of the disposal of the liquid 21 and solid waste, which I just alluded to in terms of .

22- contamination of soil. Is it one way or the other?

23 Slide 4, please.

24 Option 3, in my opinion, basically builds on 25 Option 1. I feel it has most of the same disadvantages as ANN RILEY & ASSOCIATES, LTD.

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S- 49 1 Option 1. Option 3 says that only post-ion exchange wastes 2 are 11e. (2) material. That means that there is a whole part 3 of the plant, the wellfield with its thousands of wells, 4

many miles of pipes, the plants where they have -- you move 5 the uranium and load it on the resin, and then the 6 precipitation circuit begins after that. That, basically, I 7 am afraid that that might decrease worker protection in the 8 plant.

9 Primarily I am concerned that it might 10 unilaterally remove NRC authority over the wellfields in 11 parts of the surface facility. That means we would no 12 longer be regulating, because it is non-11e. (2) material, l 13 the resin-ion exchange columns or the wellfield areas. And 14 in the past, we have cited violations for radon emissions l

l i 15 from these resin-ion exchange columns which are often the  :

16 same facility with the precipitation circuit and the dryer.

17 So what I am afraid is that we might be l

! 18 unilaterally removing things that we inspect now for l 19 radiation exposure.

l I 20 I am also worried that it might call into question

, 21 NRC authority over aspects of the conventional mill sites.

22 If you just worry about -- if you say that at in situ l

23 11e. (2) material only starts at the precipitation circuit, 24 well, -- and anything in f ront of that is non-11e. (2) at in 25 situ, then the same argument, it seems like you could make ANN RILEY & ASSOCIATES, LTD.

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i S- 50 1 it at a conventional mill. So the grinding and crushing of 2 the rock, and then the elution of that material onto a 3 resin, basically, what it means is the bulk of the material 4 that goes to a mill tailings pile might not be 11e. (2) .

5 Therefore, we might not be regulating 11e.(2), because all 6

that takes place in front of the precipitation circuit, 7 prior to it. .

So my concern is you might be -- you would be 8

setting authority, you know, precedent where we might be ,

9 removing a regulatory authority over mill tailings at 10 conventional mills.

11 Next slide, Slide 5, please.

12 Now, I am going to tell you about the benefits of 13 Option'2. Option 2 is basically what we followed up until

'14 1995 for 20 years. We wer2 happy with that. Basically, it 15' encourages operators to reduce the volume of radioactive 16 waste. For example, some facilities use land application 17 and they precipitate out their radionuclides, remove them, 18 - and ' then they send that small volume off to an 11e. (2) 19 disposal cell. It discourages the creation of many small 20 disposal sites, so you don't have proliferation of small 21 sites across the country, they have to be brought together -

22' to an 11e. (2) site. 1 1

23 It assures adequate disposal of radioactive waste.

24 By that I mean it meets our -- it means it will meet our 25 regulations, what we. consider adequate. I believe it ANN RILEY & ASSOCIATES, LTD. l Court Reporters 1025 Connecticut Avenue, NW, Suite 1014 Washington, D.C. 20036 (202) 842-0034

S- 51 1 provides a clear definition of regulatory responsibilities.

2 There is no confusion on the inspectors and the regulators 3

as to what piece of equipment we regulate and what piece of

! 4 equipment we don't regulate in the plant, whether it is 5 restoration water only or mining equipment.

l 6 And then,- finally, it is consistent, and this is 7 on Slide 6, with commitments made to the public in our l 8 environmental impact statements and assessments. What we f*

f 1

9 have said is, look, this in situ facility will move in, it L '10 will mine, it will restore the groundwater, and when we are 11 through mining, we will remove all the radioactive materials 12 and take them off-site, and that is very popular when you i 13 are trying to license one of these facilities. And i

14 basically that concludes my presentation.

15 CHAIRMAN JACKSON: Let me just ask you two quick 16 questions. Are you saying that the current policy, this is

17. relative to Slide 6, is allowing disposals on-site that are l

18 not in accordance with what we have indicated in our l

19 environmental assessments?

[ 20 MR. FORD: Yeah, what I am saying that our i

21 environmental assessments and impact statements, it is my 22 opinion, what we have said is that it is 11e. (2) material 23 and so, therefore, it is going to be taking off to an I

24 existing 11e.(2) facility.

l 25 The other alternative they have is -- and this may l ANN RILEY & ASSOCIATES, LTD.

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S- 52 1 not be stated in these, but since then, that they could 2 dispose of it on-site, but if they did, they would have to 3 dispose of it in accordance with our regulations. They have 4 to have a liner, they would have to have a radon barrier.

5 They would have to be stable for, you know, X amount of 6 years.

.7 CHAIRMAN JACKSON: What is your position on the '

8 additional option that was proposed by Mr. Fliegel, that is 9 to let the licensee designate the restoration waste as 10 either byproduct material or mine waste?  ;

11 MR. FORD: Do you have a comment on that, Mike?

12 CHAIRMAN JACKSON: Well, I will let you -- I will 13 wait then till Mr. Fliegel speaks, and then if you want to 14 comment.

15 MR. FORD: Yeah, I don't have an immediate 16 response for you on that.

17 CHAIRMAN JACKSON: Okay. Commissioner Dicus.

18 COMMISSIONER DICUS: No, I don't have any 19 questions.

20 CHAIRMAN JACKSON: Commissioner Diaz.

21 Commissioner McGaffigan. ,

22 COMMISSIONER McGAFFIGAN: I will try to be quick.

23 You have-a backup slide on Option 1. .

24 MR. FORD: Yes.

25 COMMISSIONER McGAFFIGAN: And I would like -- two ANN RILEY & ASSOCIATES, LTD.

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S- 53 1 backup slides. I would like you to walk us through that 2

because the heart of it has to do whether the staff still j 3 j believes in Part 20 or whether we think EPA is right in l 4 having these higher limits. l And I just want to understand. l 5 MR. FORD: Slide 8, please. What I am trying to 6 present here is my opinion of what I think the staff was 7 trying to get at when they first decided to define I 8 restoration groundwater as non-11e.(2) material. And if we 9 define material, go with Option 2, could we still meet that 10 same need that they were trying to get at? And it is my 11 opinion that what they were trying to do was they were 12 trying allow discharge to surface waters or uranium at i

13 higher concentrations than our 10 CFR 20 liquid release 1 14 limits in our tables. And the EPA limit for that is 4 15 milligrams per liter maximum for one day, 2 milligrams per I i

16 liter average for 30 consecutive days. Our 10 CFR 20 17 release limit comes to .44 milligrams per liter.

18 Now, the licensees wanted to meet the EPA I

19 standards rather than the more restrictive Part 20 20 requirements. By redefining our regulatory authority over

. 21 the restoration groundwater, then that becomes non-11e.(2) 22 material and they don't have to -- the licensee, therefore, 23 does not have to comply with our 10 CFR 20 standard.

24 COMMISSIONER McGAFFIGAN: But your next slide goes 25 on to point out -- it may be a flaw in Part 20 we are ANN RILEY & ASSOCIATES, LTD.

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S- 54 1 talking about rather than a flaw in EPA, because EPA assumes 2 dilution and I would assume that dilution does happen, so, 3 you know, --

let me ask Mr. Fliegel the question.

4 Which side do you come down on? I am looking at 5 your viewgraph, and I am not sure -- not Mr. Fliegel -- Mr.

6 Ford. Is Part 20 wrong?

7 MR. FORD: Okay. Let me see if I can answer that.

O I will skip through on Part -- we are talking about Slide 9, ,

9 and I will go right to the end. Basically, what is being 10 said here is that the staff, if we had defined it all as 11 11e. (2 ) , by redefining it as non-11e. (2) , the staff didn't 12 -have to address the issue of whether or not the EPA 2 13 milligrams per liter was safe or not. The .44 -- the Part 14 20 assumes no dilution. The EPA assumes dilution. The 15 staff has the option I think of doing a dose assessment.

16 They don't have to restrict themselves just to the Part 20, 17 they can take into account dilution. So I don't think they 18 needed to. redefine to give them -- the industry this 19 flexibility.

20 Alternatively, the staff might decide that the EPA 21 standard is adequate for us, taking into account dose, do a - ' l 22 generic dose evaluation and, therefore, if they meet the EPA 23 standard, they have met our requirement for surface I j

24 discharge for uranium.

25 So I think the same thing could have been l

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1 l

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.1 accomplished without redefining the groundwater as 2 non-11e.(2).

3 COMMISSIONER McGAFFIGAN: And just, since 1995 4

have people gone out and gotten these EPA discharge permits 5 that you refer to?

6 MR. FORD: Actually, the industry --

7 COMMISSIONER McGAFFIGAN: Or the state equivalent?

8 MR. FORD:

Yeah, there is -- I am aware of two 9

discharge, only of two facilities that have discharge 10 permits. One was obtained in'1980, one was obtained in 11 1986.

12 COMMISSIONER McGAFFIGAN: Okay.

13 MR. FORD: So the answer is just going on today.

14 DR. PAPERIELLO: I would like to address the issue 15 of Part 20 versus the EPA limit. The Part 20 limits are 16 very conservative, they give no credit, either air-borne or 17 liquid for dilution. As a practical matter this agency does 18 use dilution, but on the reactor side where, in fact, they 19 use the dilution obtained by discharge canal recirculating 20 water to meet the Part 20 limits for a discharge. And we,

, 21 in fact, routinely in air-borne releases, again on the 22 reactor side, allow dilution.

I mean there are dilution 23 calculations for release from the elevated stacks and the 24 like.

25 So I just want to point if the EPA is giving ANN RILEY & ASSOCIATES, LTD.

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l S- 56 1 credit for dilution, you can easily calculate that we are l 2 dealing with not much dilution to bring the actual 3 concentration to a stream or a body of water down to the 4 equivalent Part 20 limit.

l 5 COMMISSIONER MERRIFIELD: Just one clarification.

6 Your presentation is focused on the four options contained 7 in SECY-113. Also included in that paper was a discussion 8 of whether our agency should defer to EPA relative to the 9 underground injection control programs, so that we avoid 10 that level of dual regulation. Did you have a position on 11 that as well, or are you comfortable with the recommendation 12 of the staff?  ;

13 MR. FORD: I am comfortable with the 14 recommendation of the staff. I don't have a strong argument 15 against dual regulation. If EPA requires restoration of the 16 groundwater, that is the key thing on the groundwater. That 17 is what the surety is held, that is where the rubber hits 18 the road in the program when it comes to restoration.

19 And if EPA restores the groundwater, which OGC 20 says they have a requirement for that, then I don't have an 21 objection. And I don't think any discussion we have had on -

l- 22 my DPV, however you class the groundwater, you could s'till I -

l 23- rely on EPA.

24 COMMISSIONER MERRIFIELD: Thank you.

25 CHAIRMAN JACKSON: Thank you.

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1 S- 57 1 Mr. Fliegel.

2 MR. FLIEGEL: Thank you for the opportunity to l

3 present my DPV. I will only be discussing SECY-99-12 and 4 primarily alternate feed. I agree with Mr. Ford's 5 discussion of SECY-99-13.

1 6 If I can have the first slide, please.

1

• i 7 My primary concern in terms of alternate feed is  !

8 the potential for sham processing and the consequences '

9 thereof. First of all, it wasn't clear -- the paper, the 10 Commission paper has gone through several iterations since I 11 I first wrote my DPVs. It is not clear to me now what the I 1

12 staff is recommending. In terms of alternate feed, it asks 13 for performance-based licensing of alternate feed. I read 14 it that it appears to rely on the existing guidance to get 15 at what " process primarily for uranium" means, that is, 16 whether or not you look at -- specifically, is it uranium 17 versus vanadium, or is it uranium versus other motives? And 18 if that is the case, it appears that that is not a good 19 issue for performance-based licensing because it is so 20 controversial. It is not an easy decision to make and I am

, 21 not sure that that is the kind of thing we want to put in a 22 performance-based license.

23 It also identifies the recent ruling on the 24 interpretation of what " process primarily for," and I will 25 just repeat what was said in the paper, but I won't discuss i

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S-58 l 1 that because of the euc parte rules, and that is that that 2 decision said that " process primarily" is based on what is 3 removed from the ore, that is uranium versus vanadium or 4 something else, and the motive for process is not to be t 5 considered. The Commission paper takes no position and 6 neither do I.

7 I think it is important to look -- if we can have '

8 the slide, please -- look at the basis for the 1995 staff .

9 guidance. And we briefed Commissioner de Planque in June of 10 1994 on this, and what we told her at the time was that, in 11 terms.cf alternate feed, we were trying to accomplish two 12 objectives, and one was to allow the processing of alternate 13 f*.ed material to the extent possible.

14 On the other hand, we were trying to prevent sham 15 processing, and sham processing, as we explained at the 16 time, was we were trying to prevent processing of 17 radioactive waste that would have to be disposed of, 18 primarily in a low level waste facility, simply to change 19 its classification from low level waste to 11e. (2) byproduct 20 material. That is what we defined as sham processing.

21 And as we said at the time, either one of these

• 22 objectives is easy to accomplish. The difficulty is 23 accomplishing both at the same time. And we developed a 24 strategy to do that, and looking at the definition of 25 11e.(2) byproduct material, and the key phrase, " ore ANN RILEY & ASSOCIATES, LTD.

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S- 59 1 processed primarily for its source material." Our strategy 2

was to create a very expansive definition of ore that 3

essentially allowed anything to come into the mill and be 4

considered ore, and to focus on the phrase "primarily 5

process for" and look at that phrase, and "primarily process 6

for" in our mind was -- is it being processed really to get 7

uranium out, or is it be processed to change the definition 8 of what the waste is? And that is how the guidance was 9 developed.

10 If we can go to the next slide.

11 Now, however, depending upon the interpretation of 12 that phrase, " process primarily for source material," we may 13 have to reconsider the staff's 1995 strategy. And the issue 14 becomes, does the Commission -- the issue with the 15 Commission in terms of providing guidance to the staff is, 16 do we will want to prevent sham processing?

17 Now, if we continue to want to prevent sham 18 processing, there is really only two ways to do it. One is 19 to confirm what the staff tried to do in 1995 in its 20 interpretation, that is, " process primarily" allows you to 21 look at whether or not you are trying to change a 22 definition.

And if the Commission does not want to confirm i*

23 that interpretation, then we would have to revisit our 24 strategy and come up with a different way of trying to weed 25 out those situations which would be sham processing.

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S- 60 1 COMMISSIONER DIAZ: Excuse me. Could you tell me 2 what the difference in terms of public health and safety is, 3 whether you process it or not process it as waste, what is 4 the difference?

5 MR. FLIEGEL: Okay. The answer is it really isn't 6 a public health and safety issue, and I will get to that

~

7 when I go to sham processing. It is more are we doing, are 8 we being above board in how --

9 CHAIRMAN JACKSON: Right. Because you have said 10 yourself that you consider tailings impoundments to be good 11 candidates for disposal of low level waste.

'12 MR. FLIEGEL: Yes.

13 CHAIRMAN JACKSON: So I don't think that embodied 14 in what he is talking about is an issue having to do with 15 the public health and safety.

16 COMMISSIONER DIAZ: Thank you.

17 MR. FLIEGEL: Yes. If, on the other hand, the 18 conclusion is that the agency no longer cares about sham 19 processing, then the guidance can be simplified.' But I do 20 want to discuss some of the consequences of allowing sham I

21 processing. -

22 One example is just looking at uranium yield of 23 ores. Mills typically operated with ores that contained a 24 few tenths of a percent of uranium, and they yielded several 25 pounds of uranium per ton of ore. The cleanup criteria in i

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1 a

S- 61

1. at least some decommissioning sites, the cleanup criteria f 2 for uranium. in soil is 10 picoeuries per gram. Now, I have 3

also been told that actually that that may change when we 4 'look at doses.and it may even be lower than that. But if 5- you consider soils that are contaminated at or above 10 6 picoeuries per gram and have to be cleaned up, those soils are.either low level waste or, if you don't care about sham 7

8 processing, they are alternate feed.

9 The yield from soil containing 10 picocuries per i

l 10 gram of ore, if it were brought to a mill, is a pound per 34 11 tons, or about a half an ounce per ton. That may be viable 12 for gold, I am not sure it is very viable for uranium. But, 13 again, if you don't care about that, you can have mills that 14 are operating with that_ low a yield.

15 i Another consequence is what I call " mock mills." '

i 16 That is, if in reality, when -- if you are only making, if a 17 mill operator only is making pennies per ton on the value of 18 the uranium in the ore, but is making hundreds of dollars a 19 ton for disposal, the mill efficiency becomes irrelevant, we 20 get the questions of what constitutes a mill. In the past, 21- mills have had lots of leach tanks and lots of components 22 and circitits.

23 If you really -- it really doesn't matter, you can 24 build a minimal amount _and call it a mill, when in reality 25 you are really trying to just convert something. And the i

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S- 62 T1 same thing with the heap leach, you can build a concrete 2 pad, pour some acid on it and say that is my mill if you 3 have got a tailings impoundment. And essentially it 4 -becomes, this mill becomes a subterfuge to disguise a 1cw 5 level waste facility that is not licensed under Part 61.

6 And it just resurfaces all the issues and concerns that we 7 faced when we wrote the guidance and so that was why -- that 8 is why I would recommend that we don't allow sham 9 processing.

10 If I can have the next slide, please. Actually, 11 the slide after that.

12 CHAIRMAN JACKSON: The next slide, please.

13. MR. FLIEGEL: The next slide, please. Yes.

14 Just a few words on the disposal of non-11e. (2) by 15 product material. The paper has evolved a lot since I wrote 16 my'DPV. And I agree with the staff's option, preferred 17 option of seeking legislative change. But I think we still 18 need guidance from the Conmission on what to do in the 19 interim, because as it has been stated, it may take an awful 20 long time for that to happen, and I would recommend 21 retaining the current guidance as I discussed in my DPV.

• 22 Just a couple of additional comments on the paper.

23 The paper points to a situation in which TSCA wastes have 24 been allowed in the tailings impoundment and implies that 25 that could be used as an example for other waste, and it is 1

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S- 63 1 not quite the same thing because the waste in question was 2 11e.(2) byproduct material contaminated with PCBs on the 3 site. One could look at that as maybe the entity being 4

11e.(2), but rather than do that, the licensee went through 5 the process, but that is dissimilar from bringing in wastes 6 that have nothing to do with 11e. (2) from off-site.

7 And a minor point on the discussion of Part 61, no 8 matter which option you use, we can make that a generic 9 exemption, but my understanding was that that had to be done I

\

10- by rulemaking, which is why it was not -- we tried to do a 11 generic exemption in the guidance and were told we couldn't 12 do that.

13 CHAIRMAN JACKSON: Okay. Thank you.

14 Commissioner Dicus.

15 COMMISSIONER DICUS: No questions.

16 CHAIRMAN JACKSON: Commissioner Diaz.

17 Commissioner McGaffigan.

18 COMMISSIONEP McGAFFIGAN: Just very quickly. Your 19 legislative language, which I went and looked back, it was 20 drafted in November, are you in violent agreement with the

, 21 staff on the general thrust of the legislative language at 22 this point, if that option were chosen? I mean is there --

23 I asked the staff earlier, is there any difference between 24 your understanding cf their legislative proposal and your 25 legislative proposal?

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S- 64 1 MR. FLIEGEL: My reading of the paper was that L

2 their' legislative' proposal was. essentially what I proposed 3 and it'was written as -- not as a lawyer.

, 4 COMMISSIONER McGAFFIGAN: No , I understand.

l I

! 5 understand. Pretty good though.

6 CHAIRMAN JACKSON: Well, thank you. Commission l 7 Merrifield, did you have anything? .

8 COMMISSIONER MERRIFIELD:

' No , thank you.

9 l

CHAIRMAN JACKSON: I am going to excuse this panel 10 and we will call Panel 2 involving Mr. James Fiore from the 11 Department of Energy and Dr. Gary Smith from CRCFD, the 12 Conference of Radiation Control Program Directors, as well 13 as Mr. Sinclair, thank you, from the State of Utah.

14 We will begin with Mr. Fiore, then we will have 15 Mr. Smith, if he is here.

16 DR. SMITH: I am here, right here.

17 CHAIRMAN JACKSON: You have a name tag over here.

18 And then Mr. Sinclair. Thank you.

19 MR. FIORE: Madame Chairman and Commissioners.

20 First, since my estimate in the pool was about four hours, 21 not seven hours, I will be very brief. -

22 (Laughter.]

23 CHAIRMAN JACKSON: Have you made your mortgage 1

24 payment this month?

l 12 5 MR. FIORE: I am counting on this pool, it is a l

I 1

l ANN RILEY & ASSOCIATES, LTD.

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S- 65 L1 rather large pool.

2 First, I would like to thank you for the 3 opportunity to meet with you today and to present our views 4 oon the paper, the various papers.

5 CHAIRMAN JACKSON: You need to turn the mike on.

6 MR. FIORE: Okay. Let me start again. I just 7 want to thank you for our opportunity to present our views 8 on the various papers. Before I do that, I do want to 9 publicly acknowledge the efforts of some of the NRC staff in 10 the Uranium Recovery and Low Level Waste Branch that have 11 worked very closely with us on the Title I sites and the 12 licensing of those sites. We brought that program to a 13 successful close this year and we could not have done that 14 without the excellent work both by the staff and the k 15- management. I think it was an excellent effort for the 16 nation, and I want to applaud the efforts of the staff and 17 management on that.

18- With respect to the papers, the paper of most 19 significance to us is the paper on the disposal of material 20 other than 11e. (2) byproduct material. To be very blunt, 21 our position is, given budgetary constraints and manpower

! 22 constraints, we would like to get Congressional direction 23 before there are any actions that increase the burden on the 24 department, either in terms of staff resources to deal with l 25 things or long-term custodian responsibilities. We have a ANN RILEY & ASSOCIATES, LTD.

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I.

S- 66

' l- very_ tight budget situation with an intense focus on doing 2' cleanup at many of our sites ourselves and we feel

3. Congressional direction, whether it is in the form of 4 legislation or guidance, is.very important.

5 Let us say, in concept, we think allowing material 6 that is~ chemically and radiological similar to byproduct 7 material to be placed in the tailings pile is a reasonable 8 thing to consider. We also put one major caveat on that and 9 that is we do not want to get into a problem with dual 10 regulation. If this can be set up in way that dual 11 regulation is not a problem, I think it is reasonable to-be 12 considered. And what we would propose to do is have our 13 staff work with the NRC staff to lay out what is an

'14 acceptable way to carry this out'such that it does not 15' create a significant additional burden for the Department of 16 Energy.

17 CHAIRMAN JACKSON: Can you tell me, if you are 18 placing other similar material in existing tailings 19 impoundments, how does that require -- I mean result in more 20 long-term care responsibility?

21 MR. FIORE: I think it again depends on -- let's -

22 talk about the dual regulation. If somehow that emplacement 1

23' created a situation that was complex in terms of trying to 24 define whether or not we need to deal with multiple 25 agencies, whether it increases litigation risks where folks ANN RILEY & ASSOCIATES, LTD.

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R S- 67 1- are again'saying, well, what you put in there should have 2 'been dealt with by'a different agency, then it takes staff

)

3 ' time and effort on our part to deal with that.

4 CHAIRMAN JACKSON: So it is primarily a dual 5- regulation issue?-

.6 MR. FIORE: It is primarily a dual regulation 7 issue. If we set aside the dual regulation, if we are 8 putting in material that is essentially the same in terms of 9 its chemical and radiological properties, and we have done a 10 good job, -as we would do just on the byproduct material, of  ;

11 assuring that the impoundment has been designed well and

12. that long-term monitoring will not be a problem, we 13 obviously don't have any major issue with adding other 14 material to that. 1 l

15 Fundamentally, that is our bottom line. On the I

'16 other two papers, they are not of great concern to us. I 17- think we have a few minor comments in our remarks, but I I will, again, keep things very brief, that is the heart of 19- our position. '

20 CHAIRMAN JACKSON: Thank you. You did make a

,, 21 point that you would like to see the inclusion of a 22 performance review by DOE before accepting Title II sites 23- into long-term care. But doesn't DOE prepare a long-term 24- surveillance plan and could that not be viewed as a form of

)

25 performance review?

1 l

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S- 68 L1 MR. FIORE:, Yes. It could be. Again, I think 2- 'what we are simply saying is we want to have an active role 3' .

in-the turnover of those sites'to us, as opposed to just 4 someone saying, okay, they are ready and an expectation that 5 we_would just.say, oh, that's fine, they are ours.

6 CHAIRMAN JACKSON: Okay. So rolling them into the 7 developmentLof your long-term surveillance plan would be 8 _

potentially an acceptable way? .

9 MR. FIORE: Potentially an acceptable way.

10 CHAIRMAN JACKSON: Okay. Commissioner Dicus.

11 COMMISSIONER DICUS: Nothing.

12 ' CHAIRMAN JACKSON: Commissioner McGaffigan.

13 fCommissioner Merrifield.

14 LCOMMISSIONER MERRIFIELD: I just have -- related

.15 to the question I had to our own staff. My understanding, 16 you know, obviously, the desire to have this put into a 17- statutory form.to provide the' appropriate boundaries for the 18 comfort of the Department of Energy. Are you aware of 19 interest up on Capitol Hill in exploring these issues, and 20 whether there is some interest in pursing these?

21 MR. FIORE: No , we have no pursued that. I think -

22' your point is an exce'llent one. There is a. wide range of 23 issues that need to be dealt with. But I think, again, 24 there is also a wide range of Congressional involvement.

25 Discussions with the staff, guidance from the staff, or ANN'RILEY & ASSOCIATES, LTD.

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1 S- 69 1 whatever could go a long way in terms of indicating whether 2 or not there is support for some of these actions. It might 3 not mean a huge piece of legislation or something like that.

4 But, no , we have not personally gone up there and bounced 5 any of these ideas off the Congressional folks.

6 COMMISSIONER MERRIFIELD: Thank you.

7 CHAIRMAN JACKSON: Okay. Mr. Smith.

8 DR. SMITH: Good morning. Thank you for inviting

]

9 us, or the CRCPD agreement states. Like my colleague here, 10 Mr. Fiore, I would like to keep my remarks brief also. We 11 have already touched on about three different points that we 12 would want to emphasize and focus on.

13 The issue of alternate feed materials and 14 alternate materials going into tailings impoundments, we 15 essentially would agree with the DOE folks in that we would l

16 be looking at materials that have similar chemical and I 17 physical characteristics and would have the uranium and I 18 thorium and their decay products primarily, because the 19 tailings impoundments have been designed for this in the 20 first place, and the baseline monitoring that has gone into

. 21 these places would support monitoring that material in the 22 long run. That is really all I had to say about that issue.

23 Groundwater issues, we do agree with the position 24 that NRC and the agreement states should not have 25 overlapping programs, and in our own experience in the State ANN RILEY & ASSOCIATES, LTD.

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S- 71 1 standard.

2 DR. SMITH: Thank you, sir.

3 CHAIRMAN JACKSON: Yes, and I think we will set a 4 comparable set, won't we?

5 COMMISSIONER DICUS: Oh, she sent me --

6 [ Laughter.]

7 CHAIRMAN JACKSON: No , I am looking all the way 8 down the table. I 9 COMMISSIONER DICUS: Just one quick question.

10 [ Laughter.]

11 COMMISSIONER MERRIFIELD: I am glad you are not 12 looking this way.

13 [ Laughter.] I 14 COMMISSIONER DICUS: Just a tiny little question.

15 I am somewhat familiar with how CRCPD comes to decisions and 16 you are presenting the CRCPD. Is this, the points that

'l 17 CRCPD has made and the position it has taken, it is pretty 18 well unanimous or is there a minority opinion?

19 DR. SMITH: I am not aware of any minority 20 opinion. The consensus of the board was final last Friday, 21 so I was waiting on the edge to get that. Yes, it seems to

• 22 be the consensus.

23 COMMISSIONER DICUS: Okay. Thank you. That was 24 suc':inct.

25 CHAIRMAN JACKSON: Thank you so much.

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S- 72 ;

l' COMMISSIONER McGAFFIGAN: Just real' quick, you are 2 one'of the states, in your role as a Texas official, that

.3 has an in situ leach facility. How close do your 4 regulations currently follow whatever, you know, Part 40 and

-5 Appendix A to Part 40? Are you in front of in any sense in 6 trying to rationalize this stuff for your regulation of your 7 particular facilities?

8 DR. SMITH: I would say our regulations _are pretty 9 much word for word, although we have taken a position --

10 this 1995 change guidance from NRC sort of caught us by 11 surprise. In Texas, the program had been at another agency 12 for a while and then it came back to TDH, and during the 13 interim was when these positions were taken by NRC. But 14 ' prior to that, we had been very stringent in consideration 15 of byproduct material as really being all the effluents to 16 take care of spills that might happen in wellfields and 17 looking at the facility itself where ion exchange occurs and 18 the precipitation.

19 I think we are still in that mode somewhat. We 20 don't see in our state anyone really looking at material

. .21: that may be called mine waste, because when you get to 22 restoration you still have quite a bit of radium-226 that 23 was mobilized in the first place in the ore by -- in that 24 fluid. You don't just magically say it is restoration fluid 12 5 and suddenly you lose that problem.

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S- 73 1 COMMISSIONER McGAFFIGAN: So there is no mine 2 waste, in your state, there is no mine waste classification 3 that some agency deals with as mine waste? It is all 4 11e.(2)?

5 DR. SMITH: That's correct.

6 COMMISSIONER McGAFFIGAN: Okay. Thank you.

7 CHAIRMAN JACKSON: Commissioner Merrifield.

8 COMMISSIONER MERRIFIELD: I have no questions.

9 CHAIRMAN JACKSON: With respect to alternative 10 feed stock, is your definition of ore the same as what the 11 staff's definition of ore is?

12 DR. SMITH: .I think is fairly close. We would be 13 looking at something that is sand-like, contaminated dirt, 14 yes, ma'am.

15 CHAIRMAN JACKSON: Okay. Thank you. Thank you 16 very much.

17 Mr. Sinclair.

18 MR. SINCLAIR: If I could have the first 19 viewgraph, please.

20 Thank you, Chairman Jackson and Commissioners for '

21 the opportunity to appear before you today and give the -

22 perspective of a non-agreement state on uranium recovery 23 regulation. The last time I appeared before the Commission 24 was to talk about the integrated performance evaluation, 25 IMPEP. As you may remember, Utah was the first state to get ANN RILEY & ASSOCIATES, LTD.

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S- 74 1 IMPEP and I was one who made some highly critical remarks l 1

2 about the process, and today I feel very good about what has i I

3 happened, and I am hoping today by being here that I can 4

give you some food for thought regarding uranium recovery 5 operations.

6 I also just want to . state that .the State of Utah

• ~

7 has filed an appeal on LBP-99-54 to the Commission and so 8 any remarks that I make today will be structured in a 1

' (

1 9 generic sense. I 10 First I would like to make some comments on the {

i 11 SECY papers, and there are the three SECY papers, 99-11, 12 12 and.13. We would support the recommendations, the staff 13 recommendations in a number of areas, especially on 99-11, 14 where the recommendation is to promulgate a new Part -- 10 15 CFR Part 41 dedicated to the regulation of uranium and 16 thorium recovery facilities.

17 There is mention of a number of areas to be 18 clarified. We would. agree with those areas that need to be 19 clarified, along with looking at Appendix A and whether it 20 should be revised or even eliminated. And I will discuss

(, 21 some very specific considerations for Part 41 in just a

-22 moment.

23 We would also support retaining the Staff guidance l

24 in its current form as outlined in SECY paper 012.

This 25 recognizes that the guidance is not perfect, but for us it ANN RILEY & ASSOCIATES, LTD.

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L

g S- 75 1 contains some very important policy implications for a 2 non-Agreement State and I'think Mr. Fliegel alluded to some 3- of those.

4 We really don't support what I would turn opening 5 up the barn doors to allow processing and disposal of other 6 types of uranium and thorium byproduct material such as special nuclear material from mixed waste -- CIRCLA, TSCA 7

8 waste -- and so forth. , l 9 However, the current guidance may be overly 10 restrictive and really there doesn't appear to be much 11 middle ground here in terms of the SECY paper.

12 As recommended in SECY-013 we support removal of 13 the NRC from the ground water protection issues at in situ 14 leeching facilities. We believe states are best equipped to 15 handle these issues,-whether it be delegated from EPA or 16 through their own state ground water protection programs.

17 CHAIRMAN JACKSON: Is that because you believe NRC 18 has no jurisdiction or you think that deferral is a good 19 thing?

20 MR. SINCLAIR: I think deferral is a good thing in al this case. I haven't looked at specifically the issue of

• 22 the NRC jurisdiction in that case. The next viewgraph, 23 please.

24~ Some considerations for the new Part 41. As part 25 of the redraft of the old Part 40 into the new Part 41, you ANN RILEY & ASSOCIATES, LTD.

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S- 76 1_

really need.to look at what standards would apply to the 2

different levels of activities at uranium mills. For 3- instance, you are going to have maybe a conventional mill 4 processing ore. You may have a mill that is processing ore 5 and alternate. feed combination. You may have a mill just 6 processing alternate feed or you may have a-commercial waste 7 facility.

8 This gets even more complicated in the fact that 9 you may have one that does more ore than alternate feed or 10 one that does more alternate feed than ore, and so should 11 the standards be different for those kind of facilities?  ;

12 Some considerations also should be what 13 responsibility does the generator have in properly 14 characterizing the waste coming into the facility. There 15 has-been a lot of debate and discussion about how waste is 16 characterized and really does this characterization need to 17 be verified to some extent?  !

i 18 Container management for instance may become an  !

19 issue if you are having a facility that is moving from an 20 ore processing facility to a facility that is now receiving

, 21 different types of material in lots of different containers.

22 Prevention really needs to be looked at.

23 Tailings impoundments at uranium mills in Utah 24 reflect late 1970s technology. Today landfill cells and 25 impoundments really are subject to a higher degree of ANN RILEY & ASSOCIATES, LTD.

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S- 77 1- construction quality assurance control, both in terms of 2 cell design, soils engineering, and liner installation, and 3 should unused cells or new cells being contemplated be 4 ' required to meet best available control technology of the l

5 '90s? I think the answer should be yes. )

6 This also raises the question of is the ground

~

7 water monitoring program at a facility that would take other 0 waste or alternate feed adequate, and we need to look at 9 that issue as well.

10 We also need to focus on financial assurance and 11 whether or not it is adequate. It is something we always 12 nave to look at but it does raise some other issues in that 13 regard.

14 Then what should the role be of the Department of 15 Energy.as a long-term custodian, and should they have some

16. approval role in this process? Next viewgraph, please.

17 It is our belief that the current NRC guidance may 1-8 not prevent the establishment of de facto radioactive waste 19 ' facilities. Utah is currently faced with the prospect of 20 having four. facilities repeiving either alternate feed or 21 waste. One facility we have is licensed as a commercial .

22 radioactive waste disposal facility. We have a RCRA 23 facility that is proposing to accept low-level waste. We 24 have a mill that is currently processing alternate feel. We 25 have another mill that has expressed interest in disposing ANN RILEY & ASSOCIATES, LTD.

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S- 78 1 of byproduct material -- so we are faced with the prospect 2 of having four facilities within our state.

3 By virtue of allowing this processing or taking of 4 other materials under the current guidance, new disposal 1

5 capacity is really created without concurrence from the 1 6 state. Since Utah really doesn't have -- well, we don't )

• 1 7 have the authority to regulate byproduct material. '

8 Legislative or other change to allow other waste into mills 9 under Federal preemption would just further disrupt Utah's 10 ability to control its own waste destiny.

11 Should a line be drawn between disposal and 12 processing or is there a need to do such? And this is 13 really the challenge that you have to face because you need l

14 to decide what your role is going to be in terms of how to j 1

15 use uranium facilities. Are you going to promote the idea )

16 of waste disposal to these facilities or is it your job to 17 regulate waste disposal, whether it be in Agreement States 18 or under the jurisdiction of NRC?

19 Then you have to decide what kind of materials are 20 appropriate to go into these kind of facilities and there

. 21 are other actors or interested parties, stakeholders, that 22 will need to be involved. Certainly there will be a lot of 23 interest in terms of the people proposing the facilities --

24 Federal agencies, siting authorities such as compacts and so 25 forth. Final slide, please.

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S- 79 1

1 I just want to talk a moment about dual regulation 2 or concurrent jurisdiction and give you just a hint of our 3

experience with this.particular issue, as a non-Agreement 4 State.

5 I think there is a general belief that dual 6 regulation is a bad thing and it should be avoided at all 7 costs. It really is exemplified when you have State and .

8 Federal entities coming into conflict with each other over ,

9 it and you even have_ local jurisdictions at times that 10 become involved, so as a non-Agreement state we really have 11- run into this issue first-hand, but there are instances 12 where it really can work. l Let me give you some examples and '

13 I'll go through these very quickly.

l 14 For instance, Plateau Resources, Limited was 15 issued a State of Utah ground water discharge permit in 16 March of '99. The NRC acknowledged that the State 17 requirements would be more restrictive and meet the NRC 18 needs and this also met the State needs of protecting a very 19 pristine source of drinking water very close to a large  !

20 recreation area, Lake Powell, and we worked closely with the 21 company to implement what we call the best available control * '

22 technology for ground water protection of the site, and it 23 has turned out to be a very positive thing in our minds. '

24 We also have the licensed facility, Envirocare of 25 Utah. It's the only commercial waste facility that takes ANN RILEY & ASSOCIATES, LTD.

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i j' S- 80 l

1 ~ 11e . (2 ) byproduct material and it also has a State of Utah 2 ' ground water discharge permit. Just recently Envirocare 3 identified some new constituents that they wished to add to 4- their monitoring program that was the result of them taking 5 these other types of waste that we're talking about.

6 Through the ground water discharge permit we are 7 able to add those constituents to the monitoring program and 8 I think we get a better level of protection.

9 We also have the situation where it hasn't been so 10 rosy. The Atlas Corporation is a good example of where the 11 State had to file a corrective action order because the NRC 12 had no surface water quality standards and couldn't protect i L 13 the Colorado River water.

14 Fourthly, the White Mesa Mill over the years, we 15 have gone back and forth with them between the various 16 owners and operators, regarding ground water protection at 17 the mill, but at this point in time we are working with them 18 to put into effect a ground water protection permit.

19 So dual jurisdiction can work; it takes a lot of 20 effort and it. takes a lot of time, but it can work. I would  ;

. 21 be glad to answer any questions.

22 CHAIRMAN JACKSON: Thank you very much.

23 Commissioner Dicus?

24 COMMISSIONER DICUS: I don't have any questions, 25 thank you.

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S- 81 l l

1- CHAIRMAN JACKSON: Commissioner McGaffigan? j 2 COMMISSIONER McGAFFIGAN: Just-let me try to do 3: _one. quick question.

4 On 99-012 you say you support Option 1. Does that 5 mean you oppose Option 4, on which Mr. Fliegel and the Staff 6 essentially agree -- I mean Mr. Fliegel says in his DPV "It 7 is:my opinion that uranium mill tailings impoundments are '

8 excellent places to dispose of low activity radioactive

, j

9. material."

10 Do you fundamentally disagree with that opinion?

11 MR. SINCLAIR: I disagree with that opinion in the 12' fact that I, myself, would have to be comfortable with the c13' design of the ground water protection standards at the

-14 particular mill'in my state and I'am not of the opinion that 15: at this time we are.there -- at least in my state.

16 COMMISSIONER McGAFFIGAN: And just --

I won't 17- belabor this -- it strikes'me that there is a larger issue

.18- here that might get some Congressional attention, because

'19 there is a RCRA. issue that the Corps of Engineers is 20 involved in and California at the moment where the site had 21 a permit, and I don't know whether your RCRA site has one -

22 for NORM -- and the NORM actually is hotter than the Fuzart 23 material that got shipped from New York and now it isn't

.24 clear whether the Fuzart material can'or cannot go there.

25- We are not' involved in that-but it just, it strikes me that ANN RILEY & ASSOCIATES, LTD.

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S- 82 1~ some consistency as to what can go into sites and whether it 2 is NORM or whether it is exempt source material'or whether 3 it is -- whatever classification, that there needs to be 4 some rationalization there at some point or else everybody j

-5 gets into arguments and disputes, so maybe the solution that i 6- we are advocating here or the Staff is advocating in their 7 ~ paper'is part of a larger solution to rationalizing what 8 goes into, what the rules are.at these various places. I i

9 MR. SINCLAIR: I think that is a very good point.

10 I think the characterization issue is a very big issue and )

l i

11 how people characterize their waste determines where it 12 goes.

13 COMMISSIONER McGAFFIGAN: There is some very hot 14 NORM --

15 MR. SINCLAIR: There is.

16 COMMISSIONER McGAFFIGAN: -- and the CRCPD has 17 been working on regulations for NORM for -- with lots of 18- help for an eternity, and I don't know. It is'-- some 19 rationalization needs to be done fairly soon.

20 CHAIRMAN JACKSON: Commissioner Merrifield?

. 21 COMMISSIONER MERRIFIELD: I don't really have any 22 questions. The only comment I would make is I think the 23 testimony raises a variety of good questions and I think we 24 are going to have to think about them in this rulemaking 25 process and I just wanted to thank the State for -- and all ANN RILEY &' ASSOCIATES, LTD.

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S- 83

'l of the members of this panel -- for some very thoughtful and

-- 2 thought-provoking questions.

3 CHAIRMAN JACKSON: Thank you very much I am going 4 to excuse this panel. We will take a five minute break --

5 seven minute break and come back at 11:07.

6 (Recess.]

7 CHAIRMAN JACKSON: We will now here from three 8 groups' comprising Panel 3, from the Wyoming Mining ,

9 Association, the National Mining Association, and the Fuel 10 Cycle Facilities Forum, in that order, so we will begin with 11 Mr. Kearney.

12 MR. KEARNEY: Good morning. My name is Bill 13' Kearney. Today I am representing the Wyoming Mining 14 Association. I represent the Mining Association as the 15 Uranium Industry Committee Chairman, and I am also employed 16 by Power Resources as the Environmental Superintendent and 17 the Radiation Safety Officer at the Highland Uranium 18- Proj ect, which is an ISL operation located in east central 19 Wyoming. On behalf of the WMA I would like to thank the 20 Commission for the opportunity to provide input from the 21 licensee perspective.

• 22 I am going to skip over some of the material to 23 speed up on what WMA represents, but most people in this 24 room they do a lot of mining in Wyoming and we lead the 25 nation in uranium production.

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S- 84 1 We also represent 11 uranium mining companies with 2 activities in Wyoming and one in western Nebraska, and more 3 specifically this includes four out of the five ISLs 4 operating in the U.S., seven Title II mill sites in 5 decommissioning and one mill site which is in standby 6 status.

~

7 There's four key areas I would like to touch on b

8 today. Those are (1) the current and expected state of the 9 uranium recovery industry; (2) the need for the NRC to 10 exercise preemption over all byproduct waste at Title II 11 sites; (3) reasons why NRC should relinquish all 12 jurisdiction over ISL wellfields; and finally (4) how the 13 mining association could support a new Part 41.

14 The state of the uranium recovery industry -- I 15 wish I could bring more good news to the operators that are 16 here, but basically the present economic state of the 17 uranium industry should not be viewed as a growth industry 18 as portrayed in the SECY papers. We have heard some people 19 talk today about, well, ISL -- we used to have conventional 20 mining and now everything is ISL. That's true. Everything

. 21 almost is ISL, but it is by no means a booming business.

22 There will not be an ISL facility on every corner, and the 23 next slide should be a graph of the price of uranium, the 24 historic price and the projected price.

25 As you can see, in 1998 or 1999 we are around $10  !

l l

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S- 85 1 a pound. Projections out to 2015 show that it is not going ,

2 to go up much above $10 a pound and a lot of us know the

{

3 economic forces that are driving this, that are out of the 4 industry's control, so I just want to leave you with the 5 knowledge that we do not believe that this is going to be a 6 booming business any time in the near future.

7' Along those lines, all the Wyoming Title II sites 8 except one are in decommissioning, and the ISL operations .

9 are indeed struggling.

[

10 Next slide shows uranium produc*. ion in Wyoming.

11 At one timt Wyoming produced over 12 million pounds a year.

12 We are just over 2 million pounds a year and there is no 13 reason to expect that that rate is going to go up any time 14 in the near future.

15 All four Wyoming ISL sites have recently reduced 16 ~ uranium production and/or reduced the number of employees.

17 The next graph shows the three ISL companies in 18 Wyoming and Company Number 1 has had a reduction of over 27 19 percent in its workforce; Company Number 2, approximately 25 20 percent; and Company Number 3, which has recently gone into ,

i 21 production, hasn't had any reduction in employment but they -

22 have curtailed their planned production for the next year I -

23 significantly, so things aren't good out there in the ISL 24 industry.

25 COMMISSIONER MERRIFIELD: I'm interested in this ANN RILEY & ASSOCIATES, LTD.

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S- 86 l 1 question. How many employees does this represent? You said 2 these are percentages. What -- typically how big are these 3 companies?

4 MR. KEARNEY: I would say Company Number 1 would 5 represent approximately 60 to 70 employees, Company Number 2 6 about the same, maybe a little more, and Company Number 3, l 7 around 80 to 90.

l 8 COMMISSIONER MERRIFIELD: Total employees?

9 MR. KEARNEY: Yes, that's total.

10 COMMISSIONER MERRIFIELD: Not the reduction?

11 MR. KEARNEY: Right. Total employees. What I am 12 showing on here is the percent reduction. i 13 COMMISSIONER MERRIFIELD: Thank you.

14 MR. KEARNEY: And these type of impacts in Wyoming i 15 and small communities like I live in in Douglas, Wyoming, 16 are substantial, and it is not in my written presentation 17 but I wanted to add it because the issue of fees has been 18 brought up and that is very near and dear to our hearts as 19 well. Our annual fee has gone up from $32,000 a year to 20 $109,000 a year and we just recently reduced our workforce

. 21 by over 27 percent. That type of increase represents on the 22 order of three and a half workers, so you can see the impact 23 that these thing can have on our viability.

24 COMMISSIONER DICUS: Excuse me. I have a question 25 here on your slide on uranium production. You are showing ANN RILEY & ASSOCIATES, LTD.

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S- 87 1 an increase in production, modest but still an increase in 2 production, but you are showing a reduction in workforce, so 3 the reduction in workforce, I assume it is not because of a 4 reduction in production. Was it efficiency or -- I mean l 5 these two slides don't quite match --

6 MR. KEARNEY: Right. I was afraid of that, but I 7 can explain it quite simply.

8 COMMISSIONER DICUS: Okay. ,

9 MR. KEARNEY: Company Nunber 3 has recently 10 started up in operation in the last two years and gone into 11 production, so they have entered the picture with starting 12 production and increasing their workforce, where the other 13 two companies have curtailed, significantly curtailed 14 production and reduced employment. Company Number 3 has 15 actually reduced their production for the coming year, so I 16 think when you look at the uranium production graph, where 17 it shows slightly going up, it's not going to go up anymore.

18 Hopefully it will stay level, but I don't see it going up.

19 Next slide, please.

20 Because Wyoming is not an Agreement States, the 21 State should be precluded from regulating any, including the -

22 non-radiological constituents of byproduct material at Title 23 II sites.

24 Federal preemption will assist both the NRC and 25 the licensees in implementing risk-informed ACLs. It will ANN RILEY & ASSOCIATES, LTD.

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S- 88 1

also allow for a simplified license termination process and 1 2

transfer of sites to DOE and I think some other folks have 3 already stated 6 la t .  !

i 4 Relative to the NRC relinquishing jurisdiction 5

over ISL wellfields, WMA supports what NMA has put together 6

in the white paper and WMA believes that there really is no 7 legal authority to regulate ISL wellfields. The dual 8

regulation with EPA /UIC regulations and the State of Wyoming 9

ISL mining regulations is not beneficial to any party.

10 I am not sure that the Commission has received the 11 letter from Governor Geringer on this issue. j 12 I CRAIRMAN JACKSON: I am sure we have, but you can l 13 give it to the Secretary.

14 MR. KEARNEY: I brought copies along for you.

15 Basically he reiterates the position that the 16 Wyoming DEQ stated at the hearing last year in Casper, 17 Wyoming as well as the Wyoming Mining Association that 18 wellfields were adequately regulated by the state through 19 the EPA-UIC program and we did not need dual regulation.

20 Mining is conducted at ISL wellfields and the NRC

, 21 in the past has not regulated surface or underground mining 22 and I think that is a good, a very important point, that it 23 is mining. The State of Wyoming has detailed in situ mining 24 regulations which address in situ mining. Those have been 25 in place for well over 10 years.

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S- 89 1

There's been some discussion earlier on the DPVs 2 and where the regulation of these type of facilities should 3 occur. I think it is open for discussion that another 4 logical place where the NRC's jurisdiction should start is 5 at the satellite facility at the ion exchange column itself.

6 There's a-lot of reasons why that makes good sense, and I am 7 not going to go into those now. .

8 If NRC relinquished all jurisdiction over 9

wellfields, there would be no discernable adverse impacts 10 for the following reasons -- again reiterating that they 11 would still be regulated by the EPA-UIC regulations and the 12 Wyoming DEQ, and contrary to popular belief, the ground 13 water is unfit for human consumption before or after ISL j

14 mining including after restoration due to the high radium 1 j

15 and radon concentrations. l 16 This is something that I want to make a point on 17 There's a lot of individuals that believe for some reason 18 that this water out there is drinking water before we mine 19 it and it is not. It is far from that. That is why we have 20 an aquifer exemption through the EPA-UIC program that says, 12 1 yes, you can'go in and leech this, because it will never --

22 never has been and never will be a source of drinking water. I 23 I think that is a very important distinction.

24 Additionally, as the NRC Staff points out in 25 SECY-013, removing duplicative NRC oversight- will~ not lessen j

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S- 90 1 the protection of public health and safety and the 2 environment, and I think we feel good that the NRC wants to 3

rely on existing EPA regulations, but we think they need to 4

take one more step, like they did in surface and underground 5

mining and go back one step and say, you know, we really 6 don't have any business being here at all. It is adequately 7 regulated by the EPA and the State, and that is how it 8 worked with surface and underground mining for years, and we 9 think that that would be the most equitable thing to do for 10 everybody -- and if the NRC relinquished all jurisdiction 11 over we11 fields, industry concerns.and NRC Staff positions 12 on other things such as waste water streams, which we have 13 talked about some today, and sureties could also be 14 simplified and resolved.

i 15 Additionally, if NRC stepped out of the wellfield, 16 the impacts to fees could really be significant because a -

17 lot of the hourly rates that -- hourly charges we're going l l

18 to incur and we have incurred are on the wellfield, and with 19 those rates going up to $141 an hour and that combined with 20 the annual fee assessment, if the NRC didn't regulate it,

, 21 those type of issues would be less. We woulan't be 22 submitting those type of license amendments. It would be a 23 much better situation.

24 How could WMA support the new Part 41 regulations?

25 -Well, if the new Part 41 significantly reduced the NRC 1

l ANN RILEY & ASSOCIATES, LTD. '

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i S- 91

! 1 regulatory burden on licensees, including the associated 2 fees, that would be a good thing. This could be 3

accomplished if NRC exercised preemption over all byproduct I l

4 material at Title II sites and relinquished all jurisdiction 5 over ISL wellfields, and most importantly, if the NRC 6

relinquished all jurisdiction at ISL wellfields the scope of 7 any new Part 41 regulations and the burden to licensees .

8 would be substantially reduced, and the NRC could .

9 potentially reduce Staff assigned to reviewing, approving 10 and inspecting ground water issues associated with ISL 11 wellfields.

12 In conclusion, the Mining Association supports NRC 13 activities geared towards streamlining and reducing 14 regulatory oversight. We believe that the proposed actions l

15 just discussed and other suggestions by the NMA could 16 substantially benefit both licensees and the NRC, and most 17 importantly, without compromising any environmental and 18 safety concerns.

19 In conclusion and on the behalf of the Mining

]

20 Association, I would like to thank you for the opportunity 21 to present our views today. -

22 CHAIRMAN JACKSON: Thank you. I think we will go 23 on and hear from the rest of the panel, because what you 24 have to say seems to be intertwined, and then we will go 25 back for questions.

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S- 92 1 Mr. Lawson.

2 MR. LAWSON: Good morning, Chairman Jackson, 3 Commissioners. I am Dick Lawson, the President and CEO of 4

the National Mining Association, and we, the industry, 5 appreciate the invitation to present our views on the Staff 6 proposals.

7 I have with me Ms. Katie Sweeney, the Associate 8 General Counsel for NMA, and Mr. Tony Thompson, outside 9 counsel for NMA, who were authors and principal staff 10 participators in the development of the white paper.

11 Let me just say about that white paper, the 12 industry spent almost a year in the development of that 13 program. We went through a number a drafts in its creation 14 and it represents the general position cf the industry on 15 these very important issues.

16 I also have members of the industry here that 17 could provide additional insights if there are questions. l 18 Today I will highlight the key points only and in 19 the interest of time will speed right to those.

20 First, let me say with regard to Mr. Kearney's 21 remarks, that the NMA agrees with his assessment of the 22 current economic state of the industry and the need to take 23 that economic situation into account when looking at the 24 impact of regulatory actions.

25 Now we are pleased that the white paper has helped ANN RILEY & ASSOCIATES, LTD.

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I S- 93 1 to collectively bring us to this particular position. We 2 commend the Staff on the work that they have accomplished to 3 date and we believe that each of their proposals makes some 4 positive changes. I guess our major observation would be 5 that in some cases we haven't gone far enough and we would 6 like to identify where that can happen.

7 For the next slide, let me just say that, first, 8 we are particularly concerned that none of the Staff 9 proposals address the non-Agreement State jurisdiction over 10 the nonradiological components of 11e. (2) byproduct I j

i 11 material. That is one of the two top issues identified in I 12 l the white paper, the other being jurisdiction over ISL 4 13 wellfields.

14 Our study questioned whether it makes sense for 15 NRC to proceed with a Part 41 rulemaking if the concurrent 16 jurisdiction issue is not part of that deliberative process.

17 While a separate regulatory section may have advantages, if 18 this jurisdictional issue is not resolved it seems to us 19 that Part 41 would only be a temporary band-aid, still 20 requiring further action.

21 CHAIRMAN JACKSON: Have you had any interaction, -

22 legal or otherwise, between the uranium recovery industry 23 and Agreement States over the concurrent jurisdiction issue?

24 MR. LAWSON: None legal or -- we have had 25 discussions back and forth, but none legal.

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S- 94 1 We believe_the current jurisdiction issue could be 2

properly aired during the rulemaking process and including 3

this issue in the rulemaking would provide the type of 4

finality that is merited and for that reason we put into our 1

5 white paper the arguments that we felt were strongest, that 6 made the case that NRC has exclusive jurisdiction over 7 byproduct material and that they needed to exercise that 8 jurisdiction. Next slide.

9 Establishing a separate regulatory section for  !

10 uranium recovery facilities would have some advantages. As 11 indicated in our scoping comments last summer, we do not 12 object to the establishment of Part 41 as long as all of the 13 issues are brought into the decision and rulemaking process.

14 Next slide.

15. With regard to mill tailings, the Commission has 16 suggested that the Staff explore ways to use mill tailings 17 impoundment as possible disposal cells for material from 18 other waste sites. Our white paper raised the same issue by 19 suggesting _that the current Staff disposal guidance was too 20 restrictive and unnecessarily inhibits the disposal of other

, 21 similar waste in tailings impoundments.

22 I think there.is a lot of agreement that it is 23 good public policy to provide for these disposal options for 24 . low level radioactive high volume waste types that currently 25- have only one possible disposal option. Even the ad hoc N ILEY & ASSOCIATES, LTD.

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S- 95 1 panel report accompanying the Staff paper emphasized the 2

current exclusion of non-11e. (2) materials is not based on 3 health and safety, i 4

In light of the essential failure of the compact l 5

system and the future impact of NRC's new decommissioning 6 rules which will likely lead to the creation of even more 7 waste, we believe now is the time to address the issues. .

8 Next slide.

9 The Staff's recommended solution to seek  ;

10 legislative change we would agree with A legislative  !

1 11 solution would certainly provide Congressional certainty.

12 However, as noted in the previous discussion, at this I l

13 juncture, an election year approaching, it may not be a 14 realistic option in the immediate future.

15 CHAIRMAN JACKSON: So is that what your major 16 concern is?

17 MR. LAWSON: Nevertheless, if the Commission 18 decides to pursue, we will be there to assist.

19 CHAIRMAN JACKSON: No , but you said you had 20 concerns about the legislative solution.

21 Is your primary concern -- -

22 MR. LAUSON: Only time. Only time.

23 Okay.

r CHAIRMAN. JACKSON: That is what I wanted to 24 understand.

25 MR. LAWSON: The Staff's fallback option is to ANN RILEY & ASSOCIATES, LTD. 1 Court Reporters l 1025 Connecticut Avenue, NW, Suite 1014 Washington, D.C. 20036 (202) 842-0034

S- 96 1 revise the guidance with similar waste materials while 2 retaining restrictions on disposal'of 11e byproduct material 3- and special. nuclear material. This option is attractive.

4 We think-it is still too restrictive. In our white paper we 5' suggested that the Commission consider developing for public 6 comment some generic criteria with respect to materials 7 containing SNM cnc lie material to the extent that waste is 8 similar in terms of radiological activity and presents no 9

potentially significant incremental hazard to that posed by 10 the materials already in mill tailing impoundments.

11 The Staff fallback option essentially ignores the

-12 industry's suggestion on this matter and we believe that a 13 public airing of potential generic criteria for disposal of 14 SNM.or 11e tailings would be most useful and could lead to a

.15 strategy for addressing duplicative or overlapping i 16 regulatory requirements.

17 The main rationale -- next slide -- provided for 18 restricting disposal of non-11e. (2) material is to, quote, 19 " reduce the potential for regulation of tailing impoundments 20 by more than one regulatory agency." Yet this emphasis in

. 21 the Staff paper, the differing professional views, and the 22 ad hoc panel on the problems associated with dual O

23 jurisdiction as the guiding force behind non-11e. (2) policy 24 is in absolute conflict with the position taken by the 25 Commission Staff with respect to concurrent jurisdiction ANN RILEY & ASSOCIATES, LTD.

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l

S- 97 C'

1~

over the nonradiological of 11e.(2); byproduct material.

2 Indeed, the total focus.of these papers on the 3- problem associated with overlapping jurisdiction only

'4 highlights the need.for the Commission to' assert its mandate 5 'to implement and enforce UMTRCA through this permitting 15-process to the exclusion'of others including EPA and the 7 .non-Agreement States. The-dichotomy between the concerns "

8 associated with overlapping jurisdiction and its potential .

9 adverse impacts on the transfer of Title II. sites to DOE and 10' the legal staff's policy on Federal preemption over all 11 L11e.(2) byproduct material, which. includes both radiological 12 and non-radiological components, is highlighted by a recent

-13 NRC/ DOE protocol on license termination and site transfer.

14 In'that protocol NRC states that the NRC agrees 15- that it will not terminate'any site-specific license until 16 the site licensee has demonstrated that all. issues.with the 17 state regulatory authorities have been resolved. The

- 18 ' Commission's failure to assert Federal preemption over all 19- . components : of AEA 11e. (2) byproduct. material is leading to 20 the very thing that the Staff paper says should be avoided.

'21 That is non-Agreement State review of NRC approved -

22 reclamation plans.

23 As the Ad Hoc Panel pointed out, the Staff paper

'24. makes not attempt to; discuss a strategy of dealing with 25 potential duplicative and overlapping regulation through ANN RILEY & ASSOCIATES, LTD.

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S- 98 1- 1possible memoranda of understanding with relevant State or 2

Federal agencie's, and notes that the rulemaking process 3

would provide a process for thorough ventilation of these 4 issues as well as the Federal preemption issue raised in our  !

5 white paper. Next slide.

6 NMA's white paper suggests that the economics of a 7 licensee's decision to process alternate feeds is not within 8 NRC regulatory jurisdiction, which is limited to the 9

potential health and safety impacts of such processing. The 10 Staff paper seeks guidance from the Commission either to 11 propose legislative changes or to allow modification of the 12 guidance to include criteria for a licensee te provide 13- certification that the material is or will be processed 14 primarily for its sole material content.

15 The lew criteria would allow the licensee to 16 demonstrate tlat the material can be disposed of directly in l 17 the tailings impoundment without further processing as 18 sufficient justification for processing it. The licensee

)

19 can provide justification on, quote, "any other basis of 20 equivalent capability to make the demonstration."

21 The financial considerations test would be 22 retained if the licensee chooses to use that basis. The 23 retention of the financial test ignores the legislative 24 history of UMTRCA and Commission statements which suggest 25 that a licensed uranium mill's primary purpose is by ANN RILEY & ASSOCIATES, LTD.

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S- 99 1 definition to process for feed 'or its source material 2 content. In effect, by seeking and obtaining the uranium 3 milling license we believe the licensee has stated its 4 intent to process primarily for source material content.

5 The alternate feed paper fails to address UMTRCA, 6 ~its legislative historyLand Commission statements in the i 7 record indicating that the word-"primarily" differentiates "

8 between uranium recovery of license fuel cycle facilities .

1 9 whose primary purpose is to process for source material and 10 thereby create 11e. (2) material and secondary or side stream 11 uranium recovery at other types of mineral recovery

- 12 facilities.

13- At those facilities uranium recovery is not the 14 primary purpose of the recovery facility's process and 15 11e.(2) material is not created. The guidance was intended 16 to ensure that processing alternate feeds results in the 17 creation of 11e. (2) material. It is not intended to require 18 an inquiry into the economic motivations of the processor, 19 at least in our judgment.

. 20 Finally, the NMA agrees with WMA regarding the 21 Staff paper on~ISL jurisdiction, but I would like to add one -

22 final point. While the paper contains recommendations that 23 eliminate some aspects of the dual regulation of ISL 24' wellfields, the paper does not answer the question of why 25 .NRC is asserting jurisdiction over the wellfields. IE04's ANN RILEY & ASSOCIATES, LTD.

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I S- 100 1

white paper questioned NRC jurisdiction over the underground 2 aspects of ISL facilities.

3 The Staff paper starts on the 50-yard-line, so to 4 speak, and is devoid of any discussion of the bases for 5 NRC's jurisdiction in the wellfield. This paper cannot be 6 considered complete in our judgment without an analysis of 7 NRC's jurisdictional bases. That concludes our comments on 8

behalf of the industry and thank you again for inviting us.

9 CHAIRMAN JACKSON: Thank you. I am going to have 10 a question for you. Mr. Culberson.

11 MR. CULBERSON: Good morning, Madam Chairman and 12 Commissioners. I appreciate the opportunity and the 13 invitation to come here to speak to you today to bring a 14 perspective from another facet of industry, one that also 15 has a stake in the issues that are being discussed today and l

16 whatever outcome may come from this.

)

17 My name is Dave Culberson. I am Chairman of the

18 Fuel Cycle Facility Forum, and first I would like to 19 recognize Mr. Joseph Nardy with Westinghouse Electric 20 Corporation. Joe is seated in the audience and Joe was a

, 21 major contributor to our comments and the presentation \

l J 22- material that we have for you today and can help me answer 23 any questions that may come up today. l 24 TheFuelCycleFacklityForumrepresentscompanies 25 throughout the United States that are currently or formerly 1

1

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S- 101 1 involved in the processing of uranium, thorium, rare earth 2~ materials and other naturally-occurring radioactive 3 materials many of whom are currently involved in 4 decommissioning all or portions of their sites.

5 The. Fuel Cycle Facility Forum has been meeting for 6 over 10 years to address issues pertaining to 7 decommissioning of these facilities and for similar "

8 facilities, and a number of the issues we have been 9- addressing are of a regulatory nature. We consider today's 10 discussion a significant; milestone in our efforts in that it 11 appears that the NRC and the industry are about to resolve a 12 decommissioning issue that can have a profound positive 13 effect on the commercial viability of many of the companies 14 represented by the Fuel Cycle Forum, their ability to 15 decommission their sites in a timely manner, and at the same 16 time enable the NRC to carry out its mission and 17 responsibility for protecting human health and the 18 environment.

19 One decommissioning issue that is consistent and 20 -persistent throughout all-of'our discussions with respect to 21 the fuel cycle-industry is the excessively high cost of -

22 disposing of decomndssioning wastes, especially large I 23 volumes of soil-like materials, slightly contaminated with 1 24 uranium and thorium. -It is not uncommon for these costs to 25 exceed tens or hundreds'of millions of dollars for a single ANN RILEY & ASSOCIATES, LTD.

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I S- 102 1 licensee. Next slide, please.

2 We are here today to support the National Mining 3 Association's position as it is expressed in the White 4 Paper, specifically regarding the use of alternate feed 5 materials in uranium milling operations and the direct 6 disposal of non-11e. (2) material in mill tailings

- 7 impoundments. The Fuel Cycle Facility Forum and the 8 National Mining Association have been meeting together for 9

several years to discuss areas of mutual interest pertaining 10 to decommissioning.

11 Theke are a number of decommissioning streams at 12 these sites represented by the Fuel Cycle Facility Forum, as 13 well as many other sites throughout the United States that 14 could be considered, and should be considered excellent 15 candidate material either for use as alternate feed, or for 16 direct disposal in mill tailings impoundments.

17 Examples of these include, first of all, soils l 18 contaminated with uranium and thorium. The facilities that 19 generate these materials include depleted uranium 20 manufacturing facilities, normal uranium conversion 21 facilities, facilities that handle NORM, rare earth 22 processing facilities, zirconium manuf&cturing facilities, 23 depleted uranium production facilities, and current and 1

24 former low and high enriched uranium processing facilities, )

25 including not only commercial but government facilities. I ANN RILEY & ASSOCIATES, LTD.

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S- 103 1 Secondly, some examples of other waste streams 2 include lagoon sludges, ash, slag and many other soil like 3

materials that contain rare earth materials. Another 4 category of waste stream is the nation's stockpile of 5 depleted uranium that exists currently as UF6. And, 6 finally, waste streams from metal extraction plants that 7

contain uranium and thorium as a contaminate. '

8 Collectively, these streams represent millions of .

9 cubic feet of soil-like material and hundreds of millions of 10 dollars in disposal costs to the licensees. Some of the 11 materials contain naturally-occurring uranium and thorium or 12 rare earth materials in sufficient quantities and in 13 i sufficient amounts as to be considered as alternate feed l 14 material.

15 It is likely that recovery could be accomplished  !

I 16 using existing milling operations with minor modifications I 17 at some of the existing milling facilities. In such cases 18 it simply makes good sense to recover usable resources where 19 possible, for a number of reasons. First of all, it is 20 technically and technologically feasible. The processing 21 technology is already'in place for the most part and is - i 22 currently being used. Minor modifications would likely be

. i

'23 required, but those are very achievable.

24 Secondly, itallowsforthere-ude"ofmaterials 25 that are otherwise considered waste and would have to be ANN RILEY & ASSOCIATES, LTD.

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S- 104 1 disposed of and are no longer usable.

2 Third, it is economically beneficial to those that 3

are involved in decommissioning by substantially reducing 4 their decommissioning costs.

5 And, lastly, the incremental increase in health 6

and safety as a result of these operations is trivial or 7 insignificant.

8

. Some of these materials could be considered for 9

direct disposal in mill tailings impoundments for a number 10 of reasons as well. First, we are not suggesting that this 11 option be opened to the universe of waste that is out there 12 for disposal. We are focusing and suggesting that focus be 13 placed on materials that are similar to what is going into 14

'the impoundments now, similar chemical and radiological and 15 physical characteristics.

16 In many cases, much of this material I have 17 alluded to earlier is identical to or essentially identical 18 to materials that are already being placed in the 19 impoundments in that the material is soil-like and it 20 contains naturally-occurring radionuclides. These materials 21 in many cases would actually present an overall lower health 22 and safety risk than the materials already being placed 23 there because radon is generally not an issue for many of 24 these other materials. And, last, the substantial capacity 25 exists already at the existing impoundments for this ANN RILEY & ASSOCIATES, LTD.

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S- 105 1

material that is out there that we consider candidate.

2 The Fuel Cycle Facility Forum suggests that 3 sp ial nuclear materials at low enrichments, on the order 4 of a few percent, be given serious consideration for both 5 use as alternate feed and direct disposal as non-11e. (2) 6 material. This material from decommissioning is already 7 being disposed of or placed in closure cells in bulk forms .

8 throughout the United States at.a number of facilities, and- , j 9 we believe there is insignificant increase in health and 10 safety risk as a result of that.

.11 Low enriched materials are currently being 12 processed in forms very similar to these non-11e.(2) forms,

-13 ~or alt'ernate feed forms. Therefore, the processing 14 technology is existing or readily available, or could be )

15. easily developed for application at a uranium mill site, I j

i 16 And we believe the special nuclear material, when it gets 1 17 down to the real significant issues, poses no incremental 18 health and safety risks or impact over what is exhibited by 19 the materials that are already being processed or are 20 already being placed in impoundments.

.21 The Fuel Cycle Facility Forum suggests that the -

22 <NRC not' establish a blanket prohibition against the' presence 23 of fission products and activation products in materials l

24 that'would be placed in mill tailings impoundments. It is

-25 almost inevitable, or it is highly likely, and in many cases ANN RILEY & ASSOCIATES, LTD.

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i S- 106 1

already possible to detect levels of these isotopes in 2

material just from natural causes such as fallout or from 3

operations that are currently taking place in the industry.

4 So there should be a recognition that the material process 5 should be based on the significant radionuclide that

)

6 contributes to the radioactivity and that fission products 7

or activation products, or other radionuclides that may be 8

present in trace quantities really have no significant i

9 health and safety impact, and at some level could be 10 neglected when looking at the total issue.

11 The NRC should therefore base its actions on the 12 significant contributor to total radioactivity that is 13 present in this material, those being primarily uranium and 14 thorium.

15 We have provided in the handout three examples of 16 situations that currently exist at facilities represented by' 17 the Fuel Cycle Facilities Forum. These illustrate some of 18 the concerns I have discussed. We could provide other 19 examples if that would be beneficial.

20 In summary, regarding the use of other materials 21 as alternate feed or disposal of non-11e.(2) materials in 22 mill tailings impoundments, the Fuel Cycle Facility Forum 23 encourages the NRC to give serious consideration to 24 implementing regulations and guidance that would allow the 25 broadest possible range of materials to be included as ANN RILEY & ASSOCIATES, LTD.

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S- 107 1

alternate feed or as material for disposal in the tailings 2 impoundments.

3 Earlier this morning, Chairman Jackson asked the 4

staff how many facilities might be affected by proposed 5

legislative action that is being discussed today, and I 6 think the response was that there were on the order of about 7 .

10 or so facilities. I would suggest that you keep in mind 8

that there are many other facilities that would be affected .

9 in a positive manner by such regulation without compromising 10 the health and safety to those facilities or to the 11 facilities that are being considered today, the mining and 12 milling sites, and not just look at the sites where the 13 materials might be processed or disposed.

14 We believe, along with the National Mining 15 Association and the Wyoming Mining Association, that these 16 . issues should be raised in a public forum, discussing 17 thoroughly so that we collectively can reach the best 18 solution for all parties involved. Thank you.

19 CHAIRMAN JACKSON: Thank you very much.

20 Let me ask Mr. Lawson a question. If the NRC had 21 no jurisdiction over groundwater and wellfields, how would

• 22 the National Mining Association define the various waste 23 productions at the in situ leach facilities, and how would 24 that waste be handled?

25 MR. KEARNEY: I can assist with that, Chairman ANN RILEY & ASSOCIATES, LTD.

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S- 108 1 Jackson. .

2 CHAIRMAN JACKSON: Okay.

3 MR. KEARNEY: If NRC relinquished jurisdiction 4 and, for instance, say, that the jurisdiction started at the 5

IX column in the satellite facility, to me, theoretically,

)

6 those waste water streams that came off of that would still 7 be considered -- could still be considered byproduct 8 material and.that is why I put-in my presentation that-if '

9 they were out of the wellfield, it could make that, you 10 know, those problems much easier to solve, because the waste 11 streams come off the satellite and, theoretically, I think 12 we could work with that.

13 CHAIRMAN JACKSON: The gentleman here, did you 14 have a comment you wanted to make? And please identify 15 yourself. i l

16 MR. THOMPSON: I am Anthony Thompson, counsel for l 17 NMA. I thinkLthe answer.to that question -- that is one 18 possible answer. The other answer is it depends on whether 19 you accept that -- whether you determine that the 20 underground activity in the wellfield is mining or whether l

, 21 it is milling underground. If it is mining, then the waste 22' streams that come off, even'after the ISL, can be considered 23 part of the mining process. One of the papers sort of 24 alludes to that.

25 So it could be handled one of two ways. If you ANN RILEY & ASSOCIATES, LTD.

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l S- 109 1

determine that the wellfields are mining, then it wouldn't 2

be byproduct material, or doesn't need to be byproduct 3

material to be handled according to state mine waste 4 regulations, both sets, both waste streams.

5 CHAIRMAN JACKSON: This is a question for Mr.

6 Culberson. Where is the fuel cycle facilities' waste being 7 disposed of today? .

i 8 MR. CULBERSON: Currently,.the options that are )'

9 available, to my knowledge, are commercial disposal, either 10 Barnwell or Envirocare, or application for a restricted 11 release and construction of on-site disposal cell, which is 12 not an option that most facilities are keenly interested in 13 because of the long-term liability issues.

14 CHAIRMAN JACKSON: Now, most of the existing 15 tailings impoundments are in the process of final 16 recl amation . So do you consider that there is ample 17 available disposal volume for the waste at the mill tailings 18 sites?

19 MR. CULBERSON: Yes, ma'am. We have looked at 20 that in a preliminary sense at some of the joint meetings, 21 and I believe we are convinced that there is ample volume -

22 and capacity there for the waste that would be considered.

23 CHAIRMAN JACKSON: Commissioner Dicus.

24 COMMISSIONER DICUS: This question will be for Mr.

25 Kearney. Did I pronounce it correctly?

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S- 110 1 MR. KEARNEY: Yes.

2 COMMISSIONER DICUS: Okay. You indicated in your 3

testimony that you, the WMA represents I guess four out of >

4' the five ISLs operating. And then later you indicated that 5 the wellfields, the water is not potable water. Is that 6 true for all four of the ones you represent? l 7 \

MR. KEARNEY: Yes. Yes, it is. I 8 COMMISSIONER DICUS:

Do you have any information

'9 on the fifth one?

10 MR. KEARNEY: Oh, I guess it would be --

11 COMMISSIONER DICUS: About the quality of the 12 water.

13 MR. KEARNEY: Well, there is four ISLs in Wyoming 14 and three companies, but any of the operating ISLs or any

-15. proposed facilities which I am knowledgeable with on power 16 resources, the water quality is all very similar due to the 17 radon and the radium. And I think that is characteristic at 18 any ISL site in the United States. I might be stepping a

.19 .little bit overboard, but I think I am fairly -- I feel I am 20 fairly safe in saying that.

21 COMMISSIONER DICUS: Okay. Thank you.

22 CHAIRMAN JACKSON: Commissioner McGaffigan.

~

23 COMMISSIONER McGAFFIGAN: No questions.

24 CHAIRMAN JACKSON: Commissioner Merrifield.

25 COMMISSIONER MERRIFIELD: Chairman, I have some ANN RILEY & ASSOCIATES, LTD.

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k S- 111 j

1 comments I would like to make, and I will be following those l

2 up by a question. In my previous occupation, I have had the j

3 pleasure and opportunity to visit a variety of mining sites 4 around the country, and I felt that was a very instructive j 5 thing to do and I am very sensitive to the difficulties that 6 are faces by a number of miners, particularly those in 7 smaller states, smaller mines, and the economic difficulties .

8 that they are under.

9 What I found, however, in addressing the issues  !

10 that I had to under SuperFund, there are some -- well, there 11 are some mines, the vast majority of mines out there are run 12 very well and have not had problems. There are some that i

13 indeed are some of the largest SuperFund sites that we have 14 in the United States, most notably the Coeur d'Alene site in 15 Idaho and the Butte, Montana site which is a former Anaconda 16 mining site, and these are facilities which are very l

17 contentious and they take in some degree of interest on the 18 part of Congress and the states and communities involved 19 with those sites.

20 In addition, there is some quection nationally as 21 to potentially hundreds of abandoned mining sites that are -

22 under the jurisdiction of the Department of Interior and how 23 we as a nation will be required to pay for those sites in 24 the event that those need to be cleaned up.

25 Now, in the discussion today we have been talking ANN RILEY & ASSOCIATES, LTD.

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about the duties of this agency as it relates to UMTRCA and 2

the modifications that that Act made to the Atomic Energy 3

Act, most notably I point to Section 84 (a) (1) which outlines 4

that under our duties under managing byproduct materials 5

under 11e.(2), the Commission, in order to protect public 6

health, safety and the environment, and that is somewhat 7

-different than our duty in some other areas, the Commission 8

is given authority to take those actions it deems 9 appropriate in those areas. So, clearly, Congress, in 10 making its determination about our role in UMTRCA, did 11 envision that we would have to take into consideration 12 environmental issues associated with these sites.

13 The experience that we have had at many other 14 waste sites, and I wouldn't say necessarily related to 15 these, but many other waste sites, including those 16 associated with CERCLA, RCRA, and TSCA demonstrate that 17 pollution prevention plays a significant role in ensuring 18 that these -- we don't have problems associated with these 19 sites in the future.

20 So I guess my question is this, in the testimony 21 we received from Mr. Kearney and Mr. Lawson today, as well 22 as Mr. Culberson, there have been suggestions for this 23 agency to modify the way in which it is regulating these 24 facilities and, arguably, to back away from some of the I 25 regulatory structure that we have now. Given the -- I think ANN RILEY & ASSOCIATES, LTD.

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S- 113 1 as Mr. Kearney has outlined the relatively shuky financial 2 position of some of these mines, if we are to back off from 3 our level of regulation, what assurances do we have that 4 these sites will be managed by the companies in a manner 5 which is appropriate given their limited financial 6 resources, and what assurances do we have that we will not 7 be facing in the future burdens being placed on the taxpayer 8 to clean up sites by companies that do not have the 9- financial resources to manage them in an appropriate manner?

10 MR. KEARNEY: I think that is a very good 11 question, and whether the NRC steps back from the regulation 12 of we11 fields or not, the entire operation, including the 13 wellfield is bonded, we have surety in place. The operation 14 has a surety that is updated every year, so that that money 15 is available in the unlikely event of some type of default.

16 So the money is there to clean up the site.

17 COMMISSIONER MERRIFIELD: That's fair. I would 18 only point out, having had recent experience with the Atlas 19 site in Utah, which also had bonding authority, the money 20 contained in that bond is insufficient to do the reclamation 21 necessary, even under some of the planning that this agency -

22 is proposing, let alone actions which are proposed by other 23 agencies in the U.S. government.

24 MR. KEARNEY: Well, along those lines, I think it 25 is appropriate to say that the amount of waste material ANN RILEY & ASSOCIATES, LTD.

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i!

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S- 114 1

associated with an ISL site is quite limited, because you 2 don't have tailings, it st_ys underground. So the actual 3 amount of waste is very limited and it is somewhat different 4 than a conventional mill because, you know, acid wasn't used 5

and things like that, so it probably of a better quality, 6 too.

7 One other thing I think is appropriate to say, 8

because I know the NRC staff is concerned about the 9 proliferation of small sites. Well, even in the best 10 picture, the uranium industry, there is not going to be a 11 lot of ISL sites and for the most part they are very 12 remotely located. And the need to transport that byproduct 13 material to other sites, I personally believe the risk of 14 doing that, the transportation of it is more of a concern 15 than if you constructed a site -- a small site on-site. We 16 are not dealing with near the volumes. You know, at our 17 facility at Power Resources, we are talking during 18 production, and we wer~e the largest in the United States, of 19 about 100 cubic yards a year of material. And we are not 20 dealing with the millions of yards, like an Atlas or

, 21 something.

22 MR. LAWSON: Let me just add one observation with 23 your-regard to your comments, and I think all of them are 24 directly on target. We at the Association, on behalf of all 25 mining, are presently working with all of the state ANN RILEY & ASSOCIATES, LTD.

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S- 115 1 governors to develop a very detailed tabulation of all 2 abandoned mine land sites to put together with that the 3 current active sites and developing a general understanding 4 of what those reclamation requirements are going to be. We 5 are incorporating those into the overall program for the 6 future and we presently have an initial site in each of the 7 states going forward for reclamation of a particular mine 8 site. .

9 It is kind of the opening chapter of cleaning up 10 this two centuries old set of issues that have been kind of 11 bequeathed to us, but it is clearly on I think the plate of 12 all the state governors and their staffs. And, certainly, 13 the industry itself wants to solve that problem in a very 14 systematic way.

15 COMMISSIONER MERRIFIELD: Thank you.

16 COMMISSIONER DICUS: I thank you very much for 17 your testimony and your responses to our inquiries.

18 _I would now like to call our fourth panel and I

{

'19 think our final panel, the Southwest Research and 20 Information Center, represented I think by Diane Curran.

21 Come forward, please. "

22 M

.S. CURRAN: Good morning, or I guess it is about 23: good afternoon.

24 COMMISSIONER DICUS: We are getting close, aren't 25 we?

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'y i i

S- 116 1 MS. CURRAN: I would like to introduce you to 2 .Chris Shuey, who I have asked to come sit with me. He is

}l 3 }

the technical person and this team and also the one with the 4

longest institutional memory of the Uranium Mine Tailings 5

Control Act, and he may help me answer some questions that 6 you may have. l l

7 We are really glad to find out that it seems to be  !

8 the consolation prize for getting the latest notice of a 9 Commission meeting that you get the last word. So thanks 3 l

10 for that.

{

L1 I am here today on behalf of the Southwest i l

12 Research and Information Center, which has a longstanding 13 interest in the regulation of uranium recovery facilities i 14 I and uranium mines that are located in New Mexico. There is l j

15 a long history of uranium mining there. SRIC was very

{

16 active in the promotion of the Uranium Mill Tailings 17 Remediation and Control Act and has helped many l

)

18 organizations, many citizen organizations deal with 19 environmental and public health issues arising from uranium 20 mining.

. 21 SRIC, along with my other client, Eastern Navajo 22 -- Against Uranium Mining, is an intervenor in the licensing 23 proceeding for the HRI proposed ISL mine in Northwestern New 24 Mexico. And we won't be discussing the specific issues in 25 our case here today, and some of those issues are on appeal I

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S- 117 11 before you, but a lot of our concerns'come out of our l 3 experience with this licensing case, and we will try to 3 express in generic terms what they are.

'4 I think it was Mr. Lawson who complained that the

.5 NRC staff had done a very good job of justifying NRC 6 jurisdiction over the underground activities involved in ISL 7' mining, and we were also a bit frustrated. We would have 8 like to see that OELD paper from I'think it was 1980 that ,

9 discussed the NRC jurisdiction. But'we did our own inquiry 10 into the matter and we conclude that it is very clear that i 11 -the NRC has jurisdiction over the underground aspects of ISL 12' mining.

13 In our view there is a three step inquiry that has 14 to be made. First, is the ore that is under the ground more 15 .than 0.5 percent uranium? The question is not is the 16 . pregnant lixiviant more than 0.5 percent uranium, it is 17 whether the ore itself is a sufficiently high grade or 18 uranium. It really isn't very logical to evaluate pregnant j 19 lixiviant as an ore.

20 And then the next question is, is the uranium 21 being removed from its place in nature? Its place in nature -

22, is in the uranium roll deposit that is far under the ground.

23. It is in. basically an inert condition, hasn't moved for 24 thousands'of years, and when one injects lixiviant into the 25 groundwater, it has the effect of. dissolving the uranium and ANN RILEY & ASSOCIATES, LTD.

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I 3

S- 118 1 moving it up into the groundwater. It has been moved from 2 its place in nature.

3 And then the question, the third question is, is j 4 this processing? In our view, it is clearly processing to 5 introduce chemicals into the ground that have a chemical I I

6 effect on the uranium ore that significantly changes its l 7 concentration in the groundwater. And one of our i l

8 attachments to our testimony, to our comments, shows the l 9 relative concentrations of uranium in pregnant lixiviant i J

10 with uranium in drinking water.

1 11 I just want to clarify one point about that.

12 Whether there are ISL mines where the quality of drinking 13 water is involved, and the answer is yes. In New Mexico, 14 the proposed HRI mine is in an area that is drinking water 15 supply. So that is a very important issue for us, the 1

{

l 16 impact of ISL mining on drinking water. I 17 COMMISSIONER MERRIFIELD: Just a point of 18 clarification on drinking water supply. You know, each 19 state has a different mechanism of establishing groundwater 20 standards. Some states designate that all groundwater 21 contained within the boundaries of the state is drinking l

22 water. Is that the case in New Mexico?

23 MR. SHUEY: Mr. Commissioner, in the State of New 24 Mexico, the Water Quality Act defines water, fresh water as 25 any water containing 10,000 milligrams per liter of total ANN RILEY & ASSOCIATES, LTD.

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S- 119 l' dissolved solids or less. That is the statute and its 2

corresponding regulations that regulate discharges onto or 3

below the surface of the ground, in other words, protect 4 groundwater, there is a specific set of numerical standards 5 for the protection of groundwater. That is a different set 6 of regulations under a different state statute than the 7 state's equivalent of the Safe Drinking Water Act, Public .

8 Water Supply Program.

9 When Diane refers --

10 COMMISSIONER MERRIFIELD: So the point you are 11 trying to make is the state may define it as drinkable, but 12 .that doesn't.mean it meets the quality standards of either 33 the EPA or the state for safe drinking water purposes?

14 MR, SHUEY: There are two different statutory and 15 regulatory frameworks in the state. The point that Diane 16 was making was that the aquifers involved in this particular 17 proposed site are used and drinking water aquifers. They 18 meet all the standards and are actually better than the 19 standards, as our attachments to our testimony show.

20 COMMISSIONER MERRIFIELD: So they are currently 21 being used as a drinking water source? -

22 MR, SHUEY: Yes, sir.

23 COMMISSIONER MERRIFIELD: Okay.

24 COMMISSIONER DICUS: And that is the wellfields 25 that you would be talking about? Or no?

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S- 120 1 MR. SHUEY: No , the wellfields have not been 2 built.

3 COMMISSIONER DICUS: But my question goes to -- I 4

mean if the wellfields were built, are they in the aquifers 5 used for drinking?

6 MR. SHUEY: Yes.

7 COMMISSIONER McGAFFIGAN: Cculd I just clarify, 8 too? Given the testimony of the Wyoming Mining Association 9 person, just. naturally you would expect that there would be 10 a lot of radium and radon in this water if there is a lot of 11 uranium concentration there, enough to mine. Why -- I mean 12 just physically, isn't there -- why don' t you run into 13 trouble with the radium and radon concentration levels?

14 MR. SHUEY: Commissioner McGaffigan, we would need 15 to go into a fairly detailed explanation of the subsurface 16' geology at these sites that we are talking about to answer 17 your question completely. Suffice it to say that the 18 uranium ore occurs in discrete lens of the overall aquifer.

19 The municipal water supplies tap the entire aquifer. There 20 are portions of the aquifer which may have elevated

, 21 concentrations of uranium, radium, radon, et cetera. The 22 overall water quality and the overall aquifer is better than 23 federal and state drinking water standards.

24 COMMISSIONER McGAFFIGAN: Okay.

25 MS. CURRAN: There is a potential impact of the ANN RILEY & ASSOCIATES, LTD.

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S- 121 1 mine on the drinking water quality. And I think the 2 situation in Wyoming is very different, so it needs to be 3

clarified that these are two different situations we are 4 talking about.

5 Getting beyond the issue of jurisdiction to the 6 policy questions here, we are very concerned that the staff 7 is making a number of proposals here without having done 8 enough of the ground work to justify the changes. And the ,

9 motivation seems to be a desire to help out an industry that 10 is really struggling. I think you heard it here today that 11 the ISL industry is in trouble, but that is not necessarily 12 because they are over-regulated, there is a world uranium 13 market that is very much affecting what is going on.

14 And I think Chairman Jackson said the NRC's 15 responsibility is to ensure public health and safety without 16 imposing undue burdens, and that is our primary concern 17 here, that the public health and safety issues must take 18 precedence over an issues of relieving burdens on the 19 industry. And, also, we question whether some of the 20 proposed changes here really give the kinds of efficiency 21 that is being claimed. -

22 COMMISSIONER DICUS: If I could just get some l 1

23 clarification. I think you realize, or hope you realize 24- that we are really at the very beginning of this process. ,

25 We are in the rulemaking plans, so we have a long way to go l

I 1

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3- 122 1 to finalize where we are going.

2 MS. CURRAN: All right. In our view the scaff has 3

'not-provided a clear and convincing basis for delegating its 4 regulatory authority over the underground aspects of ISL 5 mining to the EPA and primacy states and Indian tribes. The 6 big thing that is missing from the analysis that we can't 7

find anywhere in this stack of SECY papers is some kind of a 8 comparison between what are the elements of the EPA 9 regulatory program, the UIC program, and what are the 10 elements of the NRC's program, and comparing each aspect one 11 to the other.

12 l And the staff should be able to assure itself that '

13 all of its goals will be met if it delegates its authority 14 to the EPA and the states. It may be that the staff will be  ;

15 satisfied, but we haven't -- and we have heard a couple of 16 times here the staff referring to the fact that it is 17 satisfied. But there isn't anything that we can find on the 18 public record that provides us with some kind of a factual 19 analysis that we can in turn evaluate. So that needs to be 20 done.

21 An example of one of the regulatory gaps that is 22 most glaring in our view is that EPA has no standard for 23 uranium in drinking water. It has a proposed standard, but 24 it has never been finalized. The NRC doesn't have a 25 standard. We are not aware that any of the state ANN RILEY & ASSOCIATES, LTD.

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1 S- 123 l

1- governments have drinking water standards for uranium. They 21 have groundwater standards, but those are different.

3-The NRC has'a Part 40 standard for uranium and 4_ effluent, but that is different. So we don't think that the j 5 NRC should be transferring its regulatory authority over 6 something as important as this without answering that 7

What is the standard going to

~

fundamental question first.

8 be for regulating uranium and drinking water as it relates .

9 ~ to ISL mines? It is an important issue in the litigation 10 that we are involved in, and I am sure in other cases, too.

11^ It is important in terms of determining what the 12 . restoration is going to be, what standards are the licensees 13 going to be required to restore the groundwater, what surety 14 bond is going to be required. It leaves a tremendous gap in 15 the regulatory' program.

16 We also are very concerned that it doesn't appear 17 that EPA has been consulted about this proposal. And I 18 think-I heard it said that the state governments had been

19. consulted, and they are the entities that administer the UIC

20. -programs, but it is EPA that has to approve those programs.

21 It.is EPA that has the oversight authority over those

• 22 programs,land it is EPA that needs to be consulted about j 23 'this.

24 MR. SETLOW: I.will be making a comment about }

25- that.

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S- 124 1 COMMISSIONER MERRIFIELD: Who are you?

2 COMMISSIONER'DICUS: Wait, let's let her continue 3 and then --

4 COMMISSIONER MERRIFIELD: Well, I am sorry. We 5

.had someone who has identified himself in the audience as i 6 saying he had a comment and we haven't called on him.

7 COMMISSIONER DICUS: But I think at the 8 appropriate time -

'I know. He can come to the podium at

.9 the appropriate time and identify himself.

10 COMMISSIONER MERRIFIELD: If we call on him.

11 COMMISSIONER DICUS: Yes, if we do. Would you 12 please continue?

13- MS. CURRAN: To go on to the. issue of the i L14 advisability of proceeding with a new Part -- 10 CFR Part

-15 41,-we think there are issues that really need to be ,

16 I

' clarified. '

17 COMMISSIONER McGAFFIGAN: Madame Chairman, if I 18 have I want to ask on this, should I ask now? Could I just 19 -- before you leave that?

20 MS. CURRAN: Sure.

., 21 COMMISSIONER McGAFFIGAN: You saw the backup slide 22 used by one of the people who filed a DPV earlier and he r 23 theorized or speculated that one of.the things that would 24 happen is that this less restrictive EPA standard would 25 apply if -- than the Part 20 standard, because they allow ANN RILEY & ASSOCIATES, LTD.

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S- 125 1 for dilution, and that that was --'I think I am putting 2 words in'his mouth, but part of what is motivating one of 3 the staff recommendations is a back door feeling to, you 4 know, let the EPA, the looser EPA standard -- looser only 5 because they allow dilution and our Part 20 doesn't, and 6 'then Mr. Paperiello said we allow dilution, too, but it is 7 not in the Part 20 .44 standard that is there.

8 What is -- is that your concern, that if EPA ,

9 standards apply, that there will be a looser standard?

10- MR. SHUEY: Commissioner McGaffigan, Mr. Ford was 11 discussing,_as we discuss later on in our commentary here, 12 the issues related to the disposition of liquid waste 13 generated in ISL operations.

14 COMMISSIONER McGAFFIGAN: Okay, t

'15 MR. SHUEY: And the standards he was talking about l 16 'are promulgated by the U.S. EPA under authority of the Clean 17 Water Act's National Pollutant Discharge Elimination System l l

18 for the uranium mining subcategory, I. don't know exactly I 19 what it is called. Those would be discharges into waters of 20 the U.S. They are more lax, as he pointed out, than the 21 NRC's Part 20, Appendix B effluent limit for uranium in

• 22 ' water. That is a different matter than the issue of .

23 subsurface regulation of the ISL operations from a 24 groundwater protection standpoint', and we have comments on 25 this issue of the NRC's proposal for' deferring or delegating

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S- 126 1 authority over those liquid waste effluents.

.2 COMMISSIONER McGAFFIGAN: Okay. I am just 3

confused by the statement that got in this paragraph.

4 "Similarly, we do not view NRC's use of 10 CFR Part 20, 5 uranium and water effluent standards appropriate to protect 6 drinking water." This is -- I thought it was in the context 7 of the previous sentence, uranium restoration standards. i 8 When you get to it, just explain.

9 MR. SHUEY: The restoration standards apply to the i i

10 groundwater that has been subject to the leaching.

11 COMMISSIONER McGAFFIGAN: Okay. Not to the 12 effluent.

13 MR. SHUEY: And not to the effluents that is 14 disposed on the surface or managed on the surface in one way 15 or another.

16. COMMISSIONER McGAFFIGAN: Okay.

17 MS. CURRAN: But your general question, in terms 18 of what is the comparison between EPA and NRC regulations is 19 a good one.

]

20 COMMISSIONER McGAFFIGAN: Right.

21 MS. CURRAN: It is one that we are asking, we 22 would like to see from the staff an evaluation, let's look l

. 1 23 at all the different aspects of this operation that need to 24 be regulated. What are the NRC's requirements? What are 25 the EPA's requirements? Is the NRC satisfied with -- well, ANN RILEY & ASSOCIATES, LTD.

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S- 127 1

either the EPA program, or I think it is also necessary for 2

the NRC to look at the state programs because those are the 3

agencies that are carrying this out, and open that for 4 public comment.

5. In terms of a new Part 41, we are not -- we think 6

there are probably some things that could be improved by 7

.having a separate regulatory section for ISL mining. We are .

8 a little bit confused after this morning's meeting as to ,

9 what is the exact purpose cf a new Part 41. We had 10 originally, when we read t:1ese papers, thought that a new 11 Part 41 was to be restricted to ISL mining, regulation of 12 ISL mining. And from a few things that were said today and 13 some viewgraphs, it appears that there is a concern about 14 clarifying existing provisions of Part 40, and we don't 15 understand why a Part 41 would be used to clarify something 16 in Part 40. And we dontt really see how that would make 17 sense, but I guess we will see how things develop as they go 18 along. 1 j

l 19 We are very concerned that the centerpiece of a 20 new Part 41 seems to be performance-based licensing. And 21 this is something that we have challenged in the licensing

• 22 case for the HRI, and I believe there is a petition for 23 review pending before the Commission. The issues that we

24. have raised in our appeal are general statutory challenges, 25 challenges of consistency with the regulations, and we would ANN RILEY & ASSOCIATES, LTD.

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S- 128 1

ask that the Commission take note of- what- we have argued in l i

2 our brief before the Licensing Board on this issue as it 3- evaluates performance-based licensing.

4 But on a policy basis, from a citizen's

5. perspective, performance-based licensing poses great

~

6 concern, because what it does is that it significantly j 7 reduces the accountability of a licensee to the public, and 1 8 also the public's ability to participate in the 9 decision-making process, because, in general, it involves -

4 10 making very, very broad prescriptions in the license and 11-then allowing the licensee to make changes as it goes along

{

12 in the operation of the facility without providing the kind 13 of public notice and decision-making process that is usually 14 provided in license amendment cases. So that as a practical 15 matter, the public is effectively excluded from being an 16 effective participant in this decision-making process which 17 may have significant impacts on the health of the safety of 18 the citizens surrounding these facilities.

19 So we would ask that you take a very careful look 20 at' performance-based licensing.

. 21 COMMISSIONER McGAFFIGAN: I am sure you know the 22 context, if I could, but we are using performance-based 23 licensing.elsewhere in our regulations, I think 24 increasingly. You know, there is always a question of how 25 much flexibility you allow the licensee and how much it l

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S- 129 1 needs to be reviewed by us. And if it is reviewed by us, it 2 entails hearing rights and public involvement, et cetera.

3 But I think that the notion of how much 4 flexibility to grant is sort of pandemic in all of our Title 5 X regulations. But that doesn't -- we will certain look at 6 your -- I will look at your arguments, but it is a question 7 of degree.

8 MS. CURRAN: I agree, it is a question of degree, ,

9 but we would say this is a giant step in the direction.

10 COMMISSIONER DICUS: Careful. We are getting into 11 territory --

12 MS. CYR: This is an issue, I mean --

13 MS. CURRAN: Okay.

14 MS. CYR: I think the generic comments were fine.

15 COMMISSIONER DICUS: Yes. Thank you.

16 Go ahead, please.

17 MS. CURRAN: Okay. Another concern that we have 18 is with the proposal to eliminatt some of the prescriptive 19 requirements in criteria -- in Appendix A. I am not sure it 20 is totally clear which ones these are, but the purpose seems 21 to be, again, consistent with performance-based licensing to '

22 reduce the number of specific requirements in terms st the 23~ mill. tailings impoundments and the kinds of requirements ,

1 24 they have to meet. i 25 We are'very concerned about'this because it seems ANN RILEY & ASSOCIATES, LTD.

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1 S- 130 1 to be taking a background step from the advances that were 2 made in UMTRCA which was intended to rectify the situation 3 where there was a great deal going on in terms of waste 4 disposal or non-waste disposal that wasn't being overseen 5 properly by any government entity, and we would not want to 6 see a background step from that. That was a tremendous 7 milestone in the process of improving environmental 8 protection over uranium mining, and we are very concerned 9 that this would be a background step. I 10 On the issue of regulating the waste streams from 11 ISL mining, the restoration water and the production bleed, 12 we are very strongly in favor of Option 2 which would be to 13 regulate the entire waste stream. We don't have any doubt 14 that all of the effluent that is produced by ISL mining is 15 subject to NRC jurisdiction and we would argue it is subject 16 to your responsibility, not just your jurisdiction, and we 17 would be very concerned if the NRC abdicated its 18 responsibility to regulate those streams. We would like to 19 see the NRC take responsibility for the restoration water 20 stream, which, as one commenter mentioned, is a significant 21 source of the waste products generated by ISL mining.

22 We don't think it makes much sense to give it 23 away. What it is going to result in is having even more 24 agencies regulate these waste streams which is we thought 25 what the industry was trying to avoid. The industry is ANN RILEY & ASSOCIATES, LTD.

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I l

l S- 131 l 1 looking to get more efficiency and lower costs, and here we I 2 are talking about a multiplicity of agencies regulated 3 several waste streams from just one mine.

4 We also don't think it is consistent with other 5 arguments that we have heard that the NRC should take more ,

6 kinds of wastes into 11e. (2) disposal facilities. The  ;

7 purpose of UMTRCA, one of the purposes is to consolidate and 8 decrease the number of waste disposal facilities in the .

9 United States so there isn't a proliferation of little dumps 10 all over the place.

11 Well, it may be that that purpose .s served by 12 taking more kinds of waste material into an 11e. (2) waste 13 disposal facility and allowing more kinds of feed to go into 14 milling facilities so that waste can be characterized as 15 11e.(2) material, but if one accepts this logic, it doesn't 1

16 make sense to then -- for the NRC to then divest itself from 17 some of the waste streams and let them proliferate into 18 small disposal facilities scattered around. And the amount 19 of waste generated in an ISL facility may seem relatively 20 small to a large industrial corporation, it isn't small to 21 the citizens living nearby one of these places. It -

22 represents a major risk.

23 We thought it was very interesting and instructive 24 that in Texas the state doesn't recognize a category of 25 mining waste, that everything that comes out of an ISL mine ANN RILEY & ASSOCIATES, LTD.

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S- 132 1 is regulated ' as 11e. (2) byproduct material and that we 2 gather it works-fine.

3. Finally, we would very strongly support the NRC's 4 i proposal to introduce uniform spill and release reporting '

5 requirements. This seems a very important measure to us, 6 - where a' big concern that there is a threshold mentioned in the proposal that is 10,000 gallons, and where it wasn't 7

l 8 said where that' threshold comes from. We would like to have '

9' a chance to evaluate that. We would like to get more 10 information on that proposal.

i l

l 11 And just one last thing that we would like to 12 leave you with, and that is that we are interested in this 13 decision-making process. It may have a profound affect on 14 the interests of SRIC and ENDAUM and other citizen groups 15 that SRIC assists, and that we would like to be informed of 16 any further Commission action, and also any further staff 17 action on these proposals so that we can evaluate them and 18 make a contribution.

19 COMMISSIONER DICUS: Well, like I told you, we are 20 in the beginning of the process, so the information will be 21 made available as we progress through'the process.

22 Commissioner McGaffigan.

23 COMMISSIONER McGAFFIGAN: Just on that point, we 4

24 are trying very hard to be open, not only in this area. We 25 had an all-hands meeting the other day and a lot of the ANN RILEY & ASSOCIATES, LTD. i Court Reporters 1025 Connecticut Avenue, NW, Suite 1014 Washington, D.C. 20036 (202) 842-0034

S- 133 1 questioning from the staff, how do we make sure that 2' everybody needs to be involved -- there was a Part 70 3 question, the fellow who has run the web page on the Part 70 4

rulemaking told about some of the ad hoc things he did, 5

sending e-mails and whatever to make sure everybody was 6 informed -- What more can I do?

7 And so we are trying very hard, and I think we 8

should get some credit over the last few years to involve, .

9 to be transparent, to put papers out while we are voting on 10 them, et cetera. So I am sure we will do everything we can 11 to keep you informed of our further actions.

12 COMMISSIONER DICUS: That's good.

13 MS. CURRAN: Thank you. l 14 COMMISSIONER DICUS: Commissioner Merrifield.

15 COMMISSIONER MERRIFIELD: I just had one brief 16 question regarding page 6 of your written testimony. l 17 Two-thirds of the way down the page, it would be the second l 18 full paragraph, you talk about the staff's discussion of the  !

i 19 OGC opinion about our -- retaining our control over 20 groundwater at ISL facilities, and you complete that with a 21 sentence saying,." Retaining authority without exercising it

• 22 exposes the agency to legal challenge by the public." And I 23 am wondering if you could flesh out for me'the basis upon 24 which you are making that argument.  !

25 MS. CURRAN: Well, it.certainly would create a lot ANN RILEY & ASSOCIATES, LTD.

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S- 134 1 'of confusion. For instance, if the NRC retained 2 jurisdiction over ISL mining underground and then somehow 3

delegated the program, the administration of its authority 4

to EPA under EPA's program,.what if EPA made a decision that 5 the NRC disagree with? Would the NRC have the authority to 6 take it back? Would the public have the right to go to both .

agencies and seek a change in the decision?

7 It creates we 8 think a lot of ambiguity and potential for --

9 ' COMMISSIONER MERRIFIELD: I guess it gets -- I 10 believe that gets to Commissioner Dicus' point that, you 11 know, we are early in this process, I think. And we can --

12 if the staff would like to comment on this, they could.

13' But, presumably, this would be the subject -- if we were to 14 go down this road, and if the Commission were to decide this 15 was the right thing to do, that would be the subject of a 16 Memorandum of Understanding between the two agencies setting 17 out the appropriate guidance and interaction between the 18 agencies and setting out what would be the appropriate area 19 of appeal, where there to be concerns raised by the public l 20 associated with an individual site.

, 21 COMMISSIONER McGAFFIGAN: And I think furthermore,

'22 in the West Valley case we have set a precedent in our staff 23 requirements in suggesting that in that case it is an MOU 24 between us and the New York that we do that transparently 25 and even put the MOU out for public comment or whatever.

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l S- 135 1 COMMISSIONER MERRIFIELD: Right.

'2 COMMISSIONER McGAFFIGAN: So I don't know, that is l 4

3.

not prejudging what we do here if there were an MOU, if we 4 need to make a decision. There is a lot -- but as 5 Commission Dicus has said, we are at the start of the 6 process and it will be transparent.

7 COMMISSIONER DICUS: Okay.

We do have a j i

representative, I assume an official representative of the

~

8 9 Environmental Protection Agency here who has indicated an I 10 interest in coming forward to speak. If you would come to 11 the podium and identify yourself, Mr. Setlow. And I am 12 going to ask you to be as succinct as possible because this 13 has gone on a bit, and also simply what you want to address 14 to the Commission. And we won't get into a debate with 15 anyone who has testified. But I recognize you to make a '

16' comment.

17 MR. SETLOW: Thank you, Commissioner. That was 18 not my intention to create any debate. My name is Loren 19 Setlow, I am the T-NORM team leader.for EPA's Office of 20 Radiation and Indoor Air. .I am also the Chairman of the 21 Inter-Agency Steering. Committee on Radiation Standards, -

l 22 Subcommittee on NORM. My views here, comments address the 23 hearing, and its general subject and represent the views of 24 ~

both the Office of Radiation and Indoor Air and also the 25 Office of Groundwater at EPA.

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S- 136 l'

We received notification of this hearing only two 2 ' days ago'and, based on some of the questioning from 3

Commissioner Merrifield, the meeting which was held in June, 4

the workshop a week or so ago, it was attended by two EPA 5

employees only after we learned about the meeting through 6 some discussions with the National Mining Association.

We find that this activity is regrettable as far 7

8 as coordination and discussions with EPA, especially 9- considering the fact that the proposals before you have such 10 a potential impact on EPA's regulatory authorities, 11 legislative authorities, as well as its existing resources. I 12 EPA is moving forward, currently we are under a mandate to 13 report to Congress on our activities and approach to T-NORM 14 and existing regulations and guidance. This is based on 15 previous mandate as well as the National Academy of Sciences 16 report. We hope that this is not a missed opportunity to 17 include some discussion related to the T-NORM materials that 18 have been under discussion today.

19 During the last two years, while this activity has 20 been under discussion within NRC, with the states, the

. 21 National Mining Association and industry as well, we have 22 not heard a word in the Inter-Agency Steering Committee on 23 Radiation Standards, nor the subcommittee that I am chair 24 of. And it certainly would have been useful for us to have 25 discussed these various things rather than to bring it ANN RILEY & ASSOCIATES, LTD.

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S- 137 1 forward at this Commission meeting.

2 I hope that we will be able to work together on 3

these proposals and that this will be placed in a public 4 forum so that we have the opportunity to comment as 5 appropriate.

6 COMMISSIONER DICUS: Thank you. And as you have 7 heard us'say, we are the beginning of the process and it .

8 will be.a very transparent and public process. But I thank . l 9 you for your comments.

10 COMMISSIONER McGAFFIGAN: I might just say on 11 that, I am a little concerned, to be honest with you, that 12 you weren't involved, because we have tried to -- I mean the 13 papers have been out for a few months. These are not the 14 sort of papers that get front page attention in the 15 Washington Post, unfortunately.

16 COMMISSIONER MERRIFIELD: Joe Holonich may want a 17 make a comment.

18 COMMISSIONER McGAFFIGAN: And I would be happy to 19 have a comment. But we were certainly not trying to 20 blind-side anybody, I don't think, and I will leave it to 21 the staff to explain why we are where we are.

• 22 COMMISSIONER DICUS: And we are going to bring 23 this to a close.

24 MR. HOLONICH: Thank you, Commissioners. Joe 25 Holonich, Deputy Director of Waste Management. I just ANN RILEY & ASSOCIATES, LTD.

Court Reporters 1025 Connecticut Avenue, NW, Suite 1014 Washington, D.C. 20036 (202) 842-0034

S- 138 1 wanted to note that we work very closely with the EPA Denver 2

office, . which is where the uranium mill tailings issues 3 reside. And, in fact, Milt Lammering, who is the manager 4 out there, and I, a month before the workshop, were out in 5 California addressing an Atlas question. He was made aware 6 of the workshop by me. We routinely mail them information 7

I.had discussed with him the papers, in particular on that.

8 the non-11e.(2) and the Part 41. I noted that I thought he 9 would be interested in them. He acknowledged he was. I 10 called back that afternoon from California and had the staff 11 FedEx the papers to him as soon as he indicated he was

-12 interested. So I think there is a very close working 13 relationship with EPA Denver. I want to make sure the 14 Commission understands that we in Denver are very 15 comfortable with the working relationship we have.

16 COMMISSIONER DICUS: Okay. Thank you.

17 Commissioner Merrifield.

18 COMMISSIONER MERRIFIELD: Yes, we may need to take 19 a look at -- obviously, we always want to have appropriate 20 coordination with our sister agencies and departments, and 21 we can certainly reassess that as we go forward, to make 22 sure that we do have that proper communication.

23 That certainly goes both ways. If the EPA had 24 some concerns that they wanted to raise, they certainly 25 could have contacted the Secretary, who was unaware that

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S- 139

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1 there would be participation today, and certainly blurting 2' out in a meeting that you will be addressing that is not the 3 way that we as a Commission like to operate around here. So 4 in the future I.think we ought to try to avoid those kind of 5 outbursts. Thank you.

6. COMMISSIONER DICUS: Okay. Thank you. Given )

7 that, I want to thank all of the staff, of course, and the '

8 stakeholders who have come to this briefing and provided , f1 9 their testimony. And I now have the opportunity to close 10 another rather lengthy Commission briefing.

11 COMMISSIONER MERRIFIELD: Good practice for a 12 couple of weeks from now.

1 13 COMMISSIONER DICUS: .Thank you. The Commission 14 will.as always give serious consideration to the views 15 expressed here today in its review of these uranium. recovery l l

16 generic issues. It is clear that there are significant l 1

17 areas of disagreement on some of the issues addressed in l l

18 SECYS-11 -- 99-11, 12 and 13. These areas of disagreement 19 will obviously require close attention by the Commission in 20 its review of these papers. l 1

21 Again, I would like to thank all of the presenters -

22 for bringing focus to these areas through this briefing, and 23 if there is nothing more this' meeting is adjourned.

24 [Whereupon, at 12:33 p.m., the meeting was

-25 concluded.)

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CERTIFICATE I

I

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This is to certify that the attached description of a meeting )

i of the U.S. Nuclear Regulatory Commission entitled:

1 TITLE OF MEETING: STAFF PROPOSALS FOR URANIUM RECOVERY REGULATORY ISSUES SECY PAPERS99-011, 99-012 AND 99-013 --

PUBLIC MEETING

-PLACE OF MEETING: -Rockville, Maryland i

i DATE OF MEETING: Thursday, June 17, 1999 i

was' held as herein appears, is a true and accurate record of the meeting, and that this is the. original transcript thereof taken stenographically by me,_thereafter reduced to typewriting by me or under the direction of the court reporting company Transcriber: Martha Brazil neporter: Jon Hundlev i

Presentation to the USNRC Commissioners June 17,1999 by the Fuel Cycle Facilities Forum Presented by: David G. Culberson, Chairman Introduction The Fuel Cycle Facilities Forum (FCFF)' is pleased to be given this opportunity to support the National Mining Association (NMA) with respect to the White Paper titled

" Recommendations for a Coordinated Approach to Regulating the Uranium Recover Industry" and to comment on the two Federal Register Notices published April 12* y (64FR17506 and 64FR17690). Over the past several years, the FCFF and the NMA have held joint meetings to discuss topics of common interest. This has established a continuing relationship between the two organizations and has identified several areas where a coordinated approach to regulations is appropriate.

The White Paper discusses several of these areas where the FCFF has a direct and common interest with the NMA. One of our major concerns over the years has been the decommissioning of fuel cycle facilities. In general these facilities often represent

, decommissioning issues that are not easily addressed by the cunent regulations. Such facilities can be generally characterized as facilities that are contaminated with alpha emitting radio-nuclides, such as Uranium and Thorium, and often involved substantial volumes of contaminated soils that require some form oflong term disposal. The facilities included in our group include uranium enrichments from depleted Uranium up to highly enriched Uranium. In some cases the contamination also includes the progeny of Uranium and Thorium. Waste disposal costs often dominate the decommissioning costs associated with such facilities.

1 l

It is our opinion that the issues raised by the White Paper with respect to the NRC's '

Alternate Feed Policy and the disposal of Non-11E(2) Byproduct Materials in Tailing

^

Impoundment Ponds can have a direct impact on the decommissioning of a fuel cycle facilities as well as other facilities throughout the country. The form of contaminated j soils and soil-like materials associated with fuel cycle facilities is often very much like the same materials that are used as alternate feeds or disposed ofin the mill tailing impoundment ponds. Certainly there are issues that would have to addressed such as the enrichment of the Uranium but there appear to be ways to factor in such considerations.

' 'Ihe Fuel Cycle Facilities Forum is a voluntary group comprised of membership from companies that represent all aspects of the nuclear fuel cycle. A major effort of the group has been to actively engage in the rulemaking processes related to the decommissioning of fuel cycle facilities.

Let me give you a few of the specific examples of material streams that the FCFF group

would have that could be applicable to consideration as alternate feeds or direct disposal in the tailings impoundment ponds.

Soils contaminated with Uranium and Thorium. There are a number of diverse operations that can result in such contamination, not all of which are normally considered part of the nuclear fuel cycle. Recent NRC publications in the Federal Register along with the SDMP list provide adequate examples of specific situations.

A generallisting is as follows:

• L Depleted Uranium manufacturing facilities e

, Normal Uranium conversion facilities e Facilities handling NORM materials e Rare Earth Processing facilities e Zirconium manufacturing facilities e

Depleted Uranium catalyst production facilities for petrochemical plants Current and former low and high enriched Uranium fuel processors (Commercial and Government)

Lagoon sludge, slag, ash and other soil-like materials. These may contain other rare earth elements that migb! also be considered a valuable component, e

Disposal of the nations stockpile of depleted Uranium currently in the form of UF6.

This might be accomplished by conversion to a solid form such as a ceramic suitable i

for direct disposal.

Waste streams from facilities such as metal extraction plants that contain commercially viable concentrations of natural Uranium or Thorium.

)

i This not an all inclusive list but each category represents specific examples of actual  !

situations represented by the FCFF. Under today's regulations each case must be dealt with on a case by-case basis but the regulations are so narrow as to effectively exclude all of the situations listed above. In each situation it is necessary to consider the technical at d economic factors to determine the suitability for use as an alternate feed or for direct disposal. It is our belief and experience that the technical and economic factors will justify such action in essentially all cases.

Although there are technical questions that must be addressed, the FCFF believes that such issues can be satisfactorily resolved. Consideration is being given to issues such as the specific radioactivity of candidate materials in comparison with current materials disposed in tailings impoundment ponds, the effect of uranium enrichment, etc. A clear NRC policy with respect to both alternate feeds and direct disposal in the impoundment ponds would provide the industry with another option for consideration in the decommissioning process with the possibility of establishing a more cost effective approach to the disposal of the large volumes of slightly contaminated materials. The physical and radiological characteristics of the materials described above is in general similar to or more favorable than the materials currently being placed in the tailings impoundment ponds. In the specific case of radon emissions, most of the cases noted t-

l l

above involve processed Uranium and therefore radon emissions are not an inherent part of the radiological considerations as opposed to tailings from the processing of ores. )

l In summary, the membership of the Fuel Cycle Facilities Forum supports the position of the National Mining Association regarding the use of alternate feed materials and the j

disposal of non 11e.(2) materials as described in the White Paper and urges the NRC to  ;

take the actions proposed by the NMA.

With respect to the published final rule on " Radiological Criteria for License Termination of Uranium Recovery Facilities" (64FR17506), the approach taken by the NRC to utilize -

the existing soil radium standard to derive a dose criterion (benchmark approach) for the cleanup of byproduct material other than radium in soil is to be commended. This ,

approach will establish a consistent application of radiological protection criteria across a site.

With respect to the options considered in SECY-99-012, the FCFF strongly urges the NRC not to take a position the establishes a blanket prohibition against the presence of fission and activation products (lle(1) materials)in the material to be disposed ofin the tailings impoundment ponds. There are specific examples of situations where the Uranium contaminated soils contain measurable quantities of such byproduct materials (11e.(1)) by:

e natural fallout e returned fuel where the fuel cladding is contaminated, or e

fuel that has been slightly activated from having been stored in the spent fuel pool.

In such situations the Uranium constitutes the primary isotopes of concern and the 11e.(1) materials are ofinsignificant concentrations. Low enriched Uranium fuel fabricators receive fresh fuel back from nuclear power plant sites for recovery or re-fabrication where the fuel has been contaminated with 11e.(1) material from having been stored in the fuel storage pools at the power plant sites. It would be impossible to certify that "no" 11e.(1) is present in Uranium contaminated soil from a site in such circumstances. Rather than a blanket prohibition, the NRC should take the approach that recognizes the prunary contammants of concern, and ignores contaminants that are present in insignificant.

quantities.

......m-..

Specific Examples Uranium Contaminated Soil from Fuel Manufacturing Facilities The decommissioning of Uranium Fuel Fabrication facilities often involves large volumes of soils contaminated with enriched Uranium. In two specific cases of facilities that ceased operation in the 1960's and 1970's, decommissioning work is underway and does involve the remediation of contaminated soil. One of these cases involves an estimated volume of soil in the range of 200,000 cubic feet. The Uranium enrichment in the soil ranges from depleted to highly enriched. When the soil is collected and packaged, the enrichment of the bulk material is in the low enriched range of 3% to 7%

U-235. There are also insignificant but measurable concentrations of Co-60 and Cs-137

, due to the nature of some of the waste processing activities. These concentrations are in the picoCi/ gram range and are above what fallout values would be in the background.

The concentrations of the Uranium are in the range of 10 to 100 ppm in the soil. Disposal cost at Envirocare for this volume of soil will be in the range of $7M to $14M.

Evaluation of the various options is currently underway because of the high cost of the current direct disposal option.

The presence of enriched Uranium complicates the possibility of use of such material as an alternate feed material at a Uranium recovery facility but with proper technical evaluation and licensing such considerations might be overcome. The introduction of a compatible form of depleted Uranium to downgrade the enrichment might, for example, make it feasible to consider the soil as a potential alternate feed material. In any case the nature and radioactivity of such soils would be similar to the existing tailings material and should be considered for direct' disposal.

Zirconium Manufacturing Facility The manufacture of Zirconium metal involves the processing of Zircon sand which has low concentrations of Uranium and Thorium present in the sand. This is typical of many metal recovery facilities and is not unique to Zirconium manufacturing. The concentration of Uranium and Thorium in the incoming sand is low enough that the sand is not considered " Source Material" and therefore is not subject to licensing requirements.

However, during the processing steps the Uranium, Thorium and Radium are a

concentrated into different process stirams. This requires that the facility be licensed and that the waste from certain portions of the plant be treated as low level radioactive waste.

, As a result, this facility is Utah's largest generator oflow level radioactive waste. Due to issues with the Northeast Compact all the waste is sent to the Richland disposal site and is not eligible to be shipped to Envirocare even though the waste would meet all the license criteria for disposal at Envirocare. This results in a higher cost of waste disposal for the facility. The issue has been discussed with the state but the general feeling has been that approval of the Compact would not be forthcoming and no formal steps have been taken.

The waste streams contain varying levels of Uranium and Thorium and should be considered as a potential source as an alternate feed material to a Uranium Recovery

facility. In one specific case, a side stream of material contains over 1% Uranium. In addition to the Uranium and Thorium, there are other rare earth materials present the might warrant recovery for their value. Although there are technicalissues related to the use of these waste streams as an alternate feed material, the option for consideration should be opened to the facility.

I In addition to those waste streams that are shipped to Richland for disposal, there are holding lagoons at the facility that include sediments which also contain Uranium, Thorium and Radium as contaminants. The volume of the sediments dominate the cost estimate to eventually decommission the site. If the sediments were to disposed at either -

Richland or Envirocare, the disposal cost could be in the hundreds of millions of dollars.

The current approach for preparing a decommissioning cost estimate has been to evaluate the cost and acceptability of an on-site disposal cell as the basis for the decommissioning cost estimate. Such sediments also offer the potential for consideration as an alternate feed material or for direct disposal in a tailings pile and such options should be open to the facility. Another possibility has been the option of conducting an onsite processing operation that would concentrate the radioactive components into a smaller volume and leave the larger volume of chemical constituents available for recycle. The smaller concentrated volume could then be considered as an alternate feed material.

' In both these cases, the radiological properties of the waste streams and the lagoon sediments are similar to what a Uranium Recovery facility would normally handle and

dispose ofin the tailings pile. Although specific consideration must be given to the other chemical constituents present, it is expected that technical answers are feasible and that these materials make definite candidates either as an alternate feed material or for direct disposalin a tailings pile.

1 Depleted Uranium Stockpiles The current national stockpiles of depleted Uranium as UF6 also offer another possibility .

for consideration. It would be technically feasible to process this stockpile into a physical and chemical form suitable for direct disposal in a tailings pile. For example, the gaseous UF6 could be converted into a ceramic form. In this case it would be feasible to demonstrate that the chemical and radiological nature of the material would be similar to -

those materials already existing in the tailings pile. A national policy to implement such an option for disposal of the depleted UF6 stockpile should consider using the existing ,

disposal capacity of the tailings piles.

L l

o-j l

l l

Before the U.S. Nuclear Regulatory Commission j 1

COMMENTS ON THE NRC STAFF'S INITIATIVES ON URANIUM RECOVERY REGULATION .

. I Submitted by SOUTHWEST RESEARCH AND INFORMATION CENTER ,

i Prepared by Diane Curran, SRIC Counsel Harmon, Curran, Spielberg & Eisenberg, L.L.P. l 1726 M Street N.W., Suite 600 l Washington, DC 20036 202-328-3500 Chris Shuey, Director Community Water, Wastes & Toxics Program Southwest Research and Information Center P.O. Box 4524 l Albuquerque, NM 87106 i 505-346-1455  !

i and Johanna Matanich, SRIC Counsel .

New Mexico Environmental Law Center 1405 Luisa St., Suite 5 .

Santa Fe, NM 87505 505-989-9022 l

l June 17,1999 1

t 3

p.

l INTRODUCTION l Southwest Research and Information Center ("SRIC") appreciates the opportunity to comment on the Nuclear Regulatory Commission ("NRC") Staff's memoranda concerning propose'd changes in uranium recovery regulation. SRIC, through its Washington, D.C., counsel and Albuquerque-based staff, looks forward to summarizing and discussing its concerns about these initiatives before the Commission itself at the public meeting on June 17,1999. ,

As the Commission is aware, SRIC, Eastern Navajo Dine Against Uranium Mining

'("ENDAUM"), and two Navajo women, Ms. Grace Sam and Ms. Marilyn Morris, are intervenors -

in an ongoing proceeding before the Atomic Safety and Licensing Board on the matter of the license issued to Hydro Resources, Inc. ("HRI"), for the Crownpoint Uranium Project (" CUP").

SRIC will abide by the Commission's admonition to refrain from making oral or written remarks that refer to arguments now pending in that adjudication. We will use this opportunity, however, to highlight why we believe that the Staff's initiatives may reduce the level of health and environmental protection to which the affected public is entitled under the Atomic Energy Act

("AEA") of 1954, as amended by the Uranium Mill Tailings Radiation Control Act

("UMTRCA") of 1978. Hence, it is in the spirit of broad public debate over policies that are important for the protection of human health and the environment that we offer our comments on the Staff's proposals regarding uranium recovery policy and regulation.

SRIC'S INTERESTS AND HISTORY ON URANIUM MILLING ISSUES SRIC's staff has been closely and routinely involved in uranium mining and milling policy and technical issues for parts of three decades, beginning in the mid-1970s. SRIC was one of several public-interest organizations that campaigned for and championed passage of the UMTRCA - the first federal statute to authorize federal and state cleanup of abandoned, or ,

" inactive," mills and tailings sites, and licensing and regulation of" active" uranium mills and mill tailings facilities. SRIC also participated extensively in the initial NRC and USEPA miemakings that implemented UMTRCA requirements, and was a co-plaintiff with other national environmental groups in federal-court appeals of some of the NRC mill licensing regulations and the EPA general environmental standards.

SRIC's interest then, as it is now, was to ensure that Ge public health and safety and the l

I

I 1

I environment were protected from the radiological and nonradiological hazards associated with

)

uranium milling and tailings disposal. To that end, the organization worked closely with communities and community groups on site-specific uranium mining and milling concerns, I

providing technical advice and field-level assistance largely at the request oflocal groups. From j this work, we developed long-term relationships with several Navajo communities adversely

)

affected by uranium waste mismanagement, such as the July 1979 Church Rock tailings spill.

I~

These relationships continue to this day, as evidenced by SRIC's partnership with ENDAUM in the adjudication of the HRIlicense.

OVERVIEW OF SRIC'S COMMENTS ON NRC STAFF'S CURRENT URANIUM RECOVERY REGULATORY INITIATIVES In preparing these comments, SRIC's counsel and staff reviewed the following documents:

(1) NRC Staff. " Recommendations on Ways to Improve the Efficiency of NRC Regulation at In Situ Leach Uranium Recovery Facilities," SECY-99-013 (March '

12,1999);

(2) NRC Staff. "Use of Uranium Mill Tailings Impoundments for the Disposal of Waste Other Than 11e.(2) Byproduct Material and Reviews of Applications to Process Material Other Than Natural Uranium Ores," SECY-99-012 (April 8, 1999);

(3) NRC Staff. " Draft Rulemaking Plan: Domestic Licensing Of Uranium and Thorium Recovery Facilities - Proposed New 10 CFR Part 41," SECY-99-11 (January 15,1999); and

'(4) National Mining Association. " Recommendations for a Coordinated Approach to Regulating the Uranium Recovery Industry." (April 1998; hereafter referred to as "NMA White Paper".)

Based on these documents, and other relevant information, correspondence and memoranda, SRIC prepared comments that address the following issues: (1) the NRC's jurisdiction over the subsurface aspects of uranium ISL mining; (2) the lack of an adequate basis for delegating ground-water protection at ISL facilities to the EPA or to states and tribes with primacy to regulate solution mining pursuant the Underground Injection Control ("UIC") Class III program of the federal Safe Drinking Water Act ("SDWA") ; and (3) legal and policy problems with new I I

2

10 CFR Part 41 regulations now being considered by the NRC Staff, particularly the questionable legality of performance based licensing ("PBL") and the proposed elimination of certain prescriptive siting and design requirements for uranium processing waste disposal

. impoundments.

At this time, SRIC recommends that the Commission not adopt either Option 2a or l Option 2b, as those options are described in SECY-99-12. We are concerned that much of impetus for the staff's initiatives in these areas to help solve the uranium industry's long-

. standing economic difficulties, without adequately addressing the impacts of these changes on ,

public health and safety. This is particularly apparent with respect to the issues of NRC j jurisdiction over ISL operations, PBL, alternate feed materials, and disposal of non-1le.(2) wastes.

(1) NRC HAS AUTHORITY TO REGULATE SUBSURFACE OPERATIONS AT URANIUM ISL FACILITIES

. SRIC agrees with and has long supported the Commission's authority to regulate ground-water protection at uranium ISL facilities. The Mining Association, however, asserts that NRC does not have authority under the AEA to regulate ground water at ISL sites. Sce, April 1998 White Paper at 104-113. Having reviewed the Mining Association's discussion of this matter, we conclude that the Association isjust plain wrong. As we discuss below, its analysis suffers from a fundamental error about the point at which source material, i.e., uranium, is removed from its place ofdeposit in nature.

. First, our reading of the NRC Part 40 regulations indicates that they contain a three-step approach to determining if a uranium recovery activity is covered by the licensing requirements .

of Part 40 or is exempt from them. The first step is to determine if the material is " source material,"i.e., does it contain a uranium concentration of 0.05 percent or greater? If the answer is "yes," then the second step is to determine if the source material is removed from its place in l nature. If the answer is "yes," then the third step is to determine where the material is being

" refined or processed?'.' Sec,10 CFR 40.13(b). If the answer is "yes," then the activity is not

exempt and is subject to the Part 40 licensing requirements.

.With respect to uranium ISL operations, the answers to each of these steps is "yss," and i

3 l 1

l

)

each of the steps is accomplished underground. With regard to the first step, virtually all uranium host rocks, including those at ISL mines, have uranium concentrations exceeding .

0.05%.' Hence, the answer to Step 1 is "yes."

In the ISL process, water fortified with oxygenates (called "lixiviant") is circulated through the uranium ore host rocks. The effect of the circulation of the lixiviant is to strip the uranium from the host rock thereby causing it to become dissolved in the ground-water /lixiviant solution.2 The resulting uranium concentration in the " pregnant" lixiviant is typically several

. orders of magnitude higher than the baseline uranium concentration in the native ground water.'

' Sac, Attachments 1,2 and 3. Since the leaching process removes the uraniumfrom its place of deposit in nature, its host rock, the answer to the second step is "yes." In this regard, the Mining Association's conclusion that _"the ore is not removed from its place of deposit in nature until it reaches the surface"(White Paper at 106) is clearly erroneous.

Finally, as can be seen from the discussion above, processing of the source material

' begins in the ground water. Part 40.13(b) uses the terms " refine and process" to determine if an activity is exempt or not.' The dictionary definition of the verb infinitive "to process"is "to

' Average ore grades for several uranium deposits mined by the ISL method in Wyoming and Texas ranged from 0.08% to 0.2%. See, W.C. Larson," Uranium In Situ Leach Mining in the United States," U.S. Bureau ofMines Information Circular 8777 (1977), Appendix B at 54-65. The Church Rock, N.M., ore grade at a site proposed for ISL mining is reported as 0.202%. See, also, Hydro Resources, Inc., Church Rock Environmental Report (April 1988) (ACN 8805200344), Figure 6.6-2 at 363.

'Gunn, J., Layton, M., Park, J. In-Situ Leach Uranium Mining (October 1988) at 4. Attached to SECY-99-013 (March 12,1999) as Attachment 1. i 4

' Scc, Tables 2.1 at 3.12 of NUREG-IS08, Final Environmental Impact Statement to Construct and Operate the Crownpoint Uranium Solution Mining Project, McKinley County, New Mexico (February 1997), at 2-6 and 3-26, respectively (attached to these comments as Attachments 1 and 2). Compare, for instance, the anticipated chemical concentrations in HRI's pregnant lixiviant with baseline chemical and radiological characteristics of water from the Crownpoint, New Mexico, municipal wells, which tap the same aquifer that would be leach mined. See, also, Attachment 3 to these comments, which shows a direct comparison of pregnant lixiviant concentrations to baseline water quality.

'The term " beneficiation," which the Mining Association cites so liberally in its White Paper,

. does not appear in the NRC regulation.

4

prepare, treat or convert by subjecting to some special process; to put through the steps of a proscribed procedure." Similarly, the definition of the verb infinitive "to refine" is "to reduce to a pure state; purify." Lixiviant injection mobilizes uranium, separating it from the host rock and increasing its concentration in the ground water- physical and chemical processes that clearly connote processing and refining of the source material. Hence, the answer to the third step also is "yes." Accordingly, uranium ISL mining is not exempt from the regulations, and NRC has

- authority to regulate it.

. SRIC believes, therefore, that NRC was correct in the early 1980s when it concluded that ,

its jurisdiction to regulate uranium recovery extended to the subsurface in ISL mines because removal and processing occur in the ground water, and that this finding is not inconsistent with its determination that underground and open-pit mining are not subject to the licensing requirements of Part 40. In conventional underground and open pit mining, the uranium is not l

removed from its host rock until the rock is transported from the mine to the mill for crushing, grinding, and the addition ofleaching acids and chemicals. This is distinguished clearly by the ISL process of using lixiviant to strip, or remove, the uranium from its host rock in the subsurface hydrologic environment.

(2) DELEGATION OF ISL GROUND-WATER REGULATION TO EPA OR THE l STATES /fRIBES IS NOT JUSTIFIED l The NRC Staffis recommending that NRC remove itself"from the review of ground-water protection issues at ISL facilities" and instead " rely on the EPA UIC program" to protect ground water at ISL sites. SECY-99-013 at 10. The Staff's position appears to be based partly on an Office of General Counsel ("OGC") opinion5 that such delegation, without loss of

• authority, would be appropriate to address the dual regulation concerns of the industry. Sce,  ;

SECY-99-013 at 3. This position, therefore, seems to rest largely on addressing industry's concems, rather than on an analysis of whether it is appropriate, as a policy matter, for NRC to declaim jurisdiction that it has expressed and exercised for the last 20-plus years, or whether the EPA and state or tribal UIC programs are fully applicable to the wide range of ground-water S

We cannot comment at this time about the substance of the OGC opinion because it was not

. attached to the March 12 memorandum and we have not yet obtained a copy ofit to review.

5

protection issues that are intrinsic to uranium ISL operations.

The NRC Staff has not provided a clear or convincing basis for its proposal to delegate ground-water protection regulation to EPA or to EPA-authorized states or tribes. None of the SECY papers we have reviewed contains a comparison between the ground-water protection requirements of NRC and those of EPA or authorized states or tribes pursuant to the UIC Class III program to evaluate the Mining Association's claims of regulatory duplication. Neither the  !

NRC Staff nor the Commission has determined that NRC's responsibilities under the AEA to protect public health and safety and the environment from the use of radioactive materials will be fulfilled by delegating ground-water protection solely to EPA and the states or tribes. As a practical matter, any such determination by the Commission would need to evaluate state UIC requirements because EPA does not, at least at this time, directly permit any uranium ISL mine ,

1' under its own UIC requirements since all existing ISL facilities are located in UIC-primacy states.

1 Implicit in the Staffs discussion of the OGC opinion is the notion that NRC would retain

- regulatory authority over ground water at ISL facilities, but not exercise it, regardless of whether EPA or a state or tribe wi:h UIC primacy would. Retaining authority without exercising it exposes the agency to legal challenge by the public.

Delegating ground-water protection authority to EPA would certainly create at least one gap in the regulatory program. EPA does not have a uranium-in-drinking water standard, even i

though it proposed one in 1991. States which now regulate uranium ISL facilities pursuant to I their state-level UIC programs have differing uranium restoration standards, and none of them are based on drinking water protection. In New Mexico, for instance, the uranium restoration l

. standard would be 5 milligrams per liter ("mg/l"), based on the state's Water Quality Control Commission standards forprotection ofground water.' 20 NMAC 3103. Similarly, we do not  !

• i view NRC's use ofits 10 CFR Part 20 Appendix B uranium-in-water effluent standard as j appropriate to protect drinking water. Whatever the level, NRC ought to be satisfied that there is  !

'SRIC's view is that the New Mexico WQCC's uranium value is an extraordinarily high level that is not protective of public health or the environment, especially when the native ground water concentration ranges from 0.001 mg/l to 0.02 mg/1, or 250 to 5,000 times the less than the uranium standard.

6 I

i

an appropriate restoration standard for uranium before delegating its authority.

Furthermore, there is no evidence in the relevant SECY papers that NRC has had agency-to-agency contact with EPA about delegating ground-water protection responsibilities for uranium ISL mines. Until this week, we could find ro one at EPA in either Region IX or at headquarters who had been consulted by the NRC Staff about this matter, or who knew that NRC was even considering removing itself from ISL ground-water regulation. Interagency communication must take place at the highest levels of the agencies, and in consultation with the affected states and tribes, before such a fundamental change in the cunent regulatory structure is ,

made.

(3) ADVISABILITY OF PROCEEDING WITH A NEW 10 CFR PART 41 The Staff enunciated three options for addressing uranium recovering regulations in the "Rulemaking Plan" attached to SECY-99-011 (January 15,1999). The Staff also listed several  !

specific proposed changes, deletions and clarifications to existing NRC regulations in j Attachment I to the January Rulemaking Plan. The purpose of the proposed rulemaking would be to " codify the numerous regulatory decisions and precedents that have been developed (for]...

ISL facility regulation" through reliance on guidance documents and license conditions. SECY-99-011 at 2.

SRIC agrees that the nature of the domestic uranium recovery industry has changed markedly since the Part 40 Appendix A licensing requirements were adopted in the early and mid-1980s. Creating a new Part 41 to address ISL operations is not, by itself, a bad idea to address the need to clarify and consolidate requirements applicable specifically to ISL operations. However, several of the proposed changes listed in Attachment 1 to SECY-99-011 -

appear to be oriented toward relaxing or even eliminating certain requirements, based almost exclusively on the uranium industry's stated desire for extensive regulatory flexibility, and in some case, even deregulation. Additionally, the Staff's options for removing NRC regulation of certain ISL waste streams, as set forth in SECY-99-013 (at 9), could make ISL regulation even more unwieldy by causing it to be divided potentially among three different governmental units:

the NRC, the EPA and states or tribes with their own regulations governing effluent disposal.

- On whole, SRIC is concerned that the Staff's proposed changes are ill-conceived and will have 7,

1 the net effect of decreasing protection ofpublic health and safety and the environment.

In the sections below, we discuss our concems about four of the proposed rulemaking l issues: (a) operational flexibility; (b) deletion of certain " prescriptive" siting and design requirements; (c) disposal ofliquid effluents from ISL operations; and (d) development of uniform spill-reporting requirements. Because of the short time we have had to prepare these comments, we are not commenting at this time on two other important matters: disposal of non-

~

11 c.(2) byproduct material in licensed tailings impoundments and use of alternate feed material in licensed uranium mills SRIC reserves its right to comment on those matters at a later date. l l

1

-(a) Issue 5: Operational Flexibility 1 We fear that the centerpiece of the Staff's initiative to create a new 10 CFR Part 41 is to l

codify deregulation of the uranium ISL industry through performance-based licensing ("PBL"), '

disguised as " operational flexibility."See, SECY-99-011, Attachment 1 at A-2 to A-3. While we

.cannot discuss those aspects of PBL that we think are illegal because the matter is currently on appeal in the HRI license adjudication, we urge the Commission to consider the legal and policy problems inherent in PBL.

Performance-based licensing in effect turns over to the operators fundamental regulatory decisions left more appropriately to the regulatory agency. Operators can change the scope of their ISL operations unilaterally, without agency oversight or approval and outside of the scope of public review and comment. The extent to which any change in an operation violates an NRC requirement or a license condition can be determined only upon the agency's inspection of

, documents and reports prepared by the licensee and maintained at the licensee's mining site.

Hence, active " regulation" of uranium recovery is replaced by discretionary enforcement. Since, under most current PBL licenses, operators are required only to file an annual report with the NRC, the public is blind to the operator's decisions to change the project for up to a year after they were made.

SRIC is particularly concerned that operators will change numerical restoration standards upon their own, internal finding that such changes will not adversely affect public health and safety, or the environment. Such changes will not be known to the agency until long after they 8

are made, and not known to the local communities whose ground water could be affected adversely for many years as a result of such changes.

(b) Issue 8: Deletion of Prescriptive Siting and Design Requirements The Staff proposes to eliminate certain siting and design requirements that, with the i

exception of mentioning Criterion 4 of Appendix A, are largely unspecified in Attachment 1 to SECY-99-011 (at A-4). SRIC fears that the Staff may be proposing to eliminate the essential surface impoundment design criteria in Criterion 5, the cover requirements of Criterion 6, and the monitoring requirements of Criterion 7. The regulations incorporated in Criteria 5 and 7 were adopted to prevent and detect ground-water contamination at tailings impoundments, while requirements in Criterion 6 were adopted to ensure long-term stabilization and control of tailings. l Both were adopted in compliance with the generally applicable environmental standards promulgated by EPA in 40 CFR Part 192, Subparts D and E, which were based on RCRA-level design standards for hazardous waste impoundments. The NRC mill licensing criteria and the EPA general standards were authorized by the original UMTRCA in 1978 and by its amendments in 1982.

To relax these requirements for surface impoundments at uranium ISL sites would strike at the heart of the Mill Tailings Act's intent to prevent new ground-water contamination from tailings and to prevent dispersion of tailings through water and wind erosion and human dismption. While surface impoundments at ISL sites are necessarily smaller than those at conventional mills, they have the same potential for leakage if not designed and maintained properly.

As set forth in Attachment 1 (at A-4), the Staff's proposal for eliminating siting and -

design requirements appears oriented toward expanding the universe of PBL-eligible actions that licensees may take. Ultimately, however, the Staff s proposals must be consistent with requirements of the AEA, as amended by UMTRCAi Eliminating design and cover requirements, or relegating them to PBL status, may be inconsistent with the agency's statutory mandates under the AEA and UMTRCA.

9

'(c) Issue 1: Regulations for ISL Facilities-Liquid Waste Disposal l

In SECY-99-013 (at 9-10), the Staff proposes to divorce NRC of regulating waste waters generated by production bleed and restoration operations at ISL facilities. CRIC assumes that I

l this proposal, along with the Staff's stated intention to delegate regulation of ground water at ISL sites, is part and parcel ofits desire to craft a new Part 41 for ISL operations. Unfortunately, the Staff's liquid waste proposal makes no sense technically or administratively.

From a technical perspective, production bleed and restoration waste waters are so intrinsically connected with the processing of source material, i.e., uranium, that they should be regulated as byproduct material as defined in section 11e.(2) of the AEA. Production bleed waters would not be generated if the ISL operation were not in place. Production bleed effluents are the un-reinjected waste liquids necessarily generated by ISL mines to maintain lixiviant control. They also are likely to contain elevated concentrations of both radiological and nonradiological contaminants, with or without treatment prior to disposal.

Restoration waste waters almost always have high contaminant levels at the outset of restoration when contaminant levels remain high in the mined-out ore zones. These high levels would not be present in the ground water had the site not been subject to uranium ISL mining.

Hence, the removal of the source material from the rock directly resulted in contamination of the ground waterin the ore zone.

Neither does the Staff's proposal on regulation ofISL liquid waste streams make sense from an administrative perspective. See SECY-99-013 at 9-10. If the full breadth of the Staff's proposals are adopted, three different federal or state (or tribal) agencies would have authority over various liquid waste streams and mining operations at ISL facilities. For instance, NRC i

, would regulate the surfaceprocessingfacilities at the ISL plant; EPA or a state or tribal UIC- l primacy agency would regulate the UIC Class III wells, wellfields and ground-water proterion; and EPA'or a state or tribal agency would regulate disposal of production bleed wastes anc restoration wastes under various federal, state or tribal environmental authorities. This situation cannot possibly be seen as streamlining regulation or facilitating operator compliance. And it would be a total nightmare for communities and local groups wanting to participate in regulatory decisions aff ecting permitting or licensing of the facilities themselves.

These and other technical and policy points were made convincingly by Mr. William to

i l

l l

Ford in his Differing Professional Views appended to SECY-99-013. SRIC urges the Commission to give great weight to these views in its consideration of this issue.

(d) Issue 10: Need for Uniform Spill and Release Reporting Requirements SRIC concurs with the Staff's concerns about the lack of spill and release reporting requirements in 10 CFR Part 40, the lack of uniform and consistent data and information about spills and releases, and the potential for serious contamination ofland, water and air by nonradiological pollutants released from licensed facilities. Spills of pregnant lixiviant, process ,

waste waters and restoration waste waters are well documented at various ISL sites in Texas.7 Hence, we support NRC's proposal to develop spill reporting requirements and to incorporate those requirements into the existing Part 40 program. We recommend that they be fully applicable to ISL facilities and achieve, to the extent practicable, compatibility with spill reporting requirements adopted by EPA under authority of the Clean Water Act's National Pollutant Discharge Elimination System (" NPDES").

CONCLUSIONS AND CLOSING COMMENTS SRIC is not convinced that the staffis ready to proceed with the rulemaking proposed in SECY-99-011. Its proposals to delegate certain existing regulatory authorities are ill-conceived and possibly illegal, and seem aimed primarily at addressing the needs of the regulated community first, and addressing protection of public health and safety and the environment secondarily. Minimally, the Commission should defer action on the Staff's proposals today and direct the Staff to develop a more thorough basis and explanation for its initiatives. Especially important in this regard is the extent to which delegating authority for ground-water protection to -

EPA or the states or tribes will create gaps in regulation that do not now exist.

Finally, we were displeased with the way the agency notified SRIC of today's meeting.

Neither SRIC, ENDAUM, Ms. Sam, Ms. Morris or any of their counsel received letters directly from the Commission Secretary. Rather, copies of the May 27,1999, letters sent to the Department of Energy, the Mining Association and the states of Utah and Texas were forward to

'SRIC intends to submit for the record in the near future data and information documenting the spills at various ISL sites in Texas.

11

I us via the service list specific to the HRI license adjudication. Those copies did not reach SRIC's Albuquerque office until June 3. On June 9. SRIC's counsel sent a letter to the i

Commission Secretary requesting time on today's agenda. We were not notified until Monday of this week (June 14) that SRIC would be pennitted to address the Commission.

This indirect and impersonal method ofnotification was untoward in light of the fact that representatives and SRIC and ENDAUM, and their counsel, appeared at the August 25,1998, public meeting sponsored by the NRC Uranium Recovery Branch and expressed their concerns

, about NRC's consideration of wide-ranging changes in the way it regulates ISL facilities. That SRIC was not directly informed was even more curious considering its 20-plus years of involvement in national and state-level uranium recovery policy and regulation.

In the future, we request advanced, direct notification of all meetings - formal and informal- on uranium recovery regulatory policy. (Our various addresses appear on the cover of these comments.) This includes meetings not only before the Commission, but also meetings between the Uranium Recovery Branch staff and uranium licensees.' SRIC also requests that it be kept informed by the NRC Staff ofits progress in going forward with the regulatory initiatives discussed today.

Again, SRIC appreciates the opportunity to comment in writing and before the Commission on these important matters.

w I

'We are aware that the Staffmeets regularly with licensees in Wyoming to discuss regulatory issues. While SRIC staffcannot afford to travel to many of those meetings, we want to be informed that they are scheduled in the event that we determine that it is necessary to attend.

12

i A4emselves esafudes abe hasapestAsefes Tatie 2.1. Anticipated concentrations of principal chemical species in HRl's pregnant Ihdvient from the well fields for processing IData .are from HRI 1993a, test data, and aa-rational Iscensing +T-ede.,ce.1 Chemical species ' Concentration (mg/L)

Calcium 100-350 .

Magnesian 10-50 1 Sodmm 500-1600 Potassium 25-250

• Carbonate 0-500 Bicarbonate 800-1500 Sulfate 100-1200 Cidonde 250-1800 Nitrain

<0.01-0.2 Fluonde 0.05-1 Sahca 25-50 Totaldissolved sohds 1500-5500 Uranian 50-250 Radium-226 (pCi/L) 1000 Other parameters C"Wvity(ymbos/cm) 2500-7500 pH (standard units) )

7.0-9.0 Table 2.2. Principal chemical reactions taking place in the ore body during uranium oxidation (1) 2UO2 + 0 2 -- > 2UO3 (2a) UO3 + Na:CO 3

+ 2NaHCO 3 -- > UO 2(CO3 )f + 4Na' H2 O (2b) UO + 2NaHCO,-- > UO,(CO ),8 + 2Na* + H 0 i

2 1 HRI would pump 1 A pregnant solution from pr~l + wells to the processing plants for uranium extraction by ion ~A-ay. The resultag barren hxmant would then be chemically .

refortified and rda,W into the well field to repeat the leachmg cycle.

HRI antscapates using pr~8 + flow rates of 9500 to 11,500 Lpm (2500 to 3000 gpm) at each ion

= t =3: plant. Potential enssi 5 at each plant were conservatively modeled assumag a maxmmm flow rate of15,000 Lpm (4000: 3), and HR1 would be restricted from exceedmg this rate by licens ccadstion. M*4=9 a injecta= r.asures to be used in each of the mine areas would be demised when the operating wells are completed. The approxunate values of allowable surface (we!! head) pressures for each area are 2075 kPa (301 psi) at the Crownpoint and Unit I sites and 807 kPa (117 psi) at the Church Rock site (HR1 19964). During normal operations, production rates would be NtMEG-1608 2-6 ATTACHMENT 1

9 Annened Environnant

. Table 3.12. Town of Crownpoint water quality data' EPA land NNEPA)

We5 NTUA 1 Weg NTUA 2 Wells BIA 5&8 Wed BIA 6 drinidng water Parameter Img/L1 (mg/L1 Img/L1 (mg/l.1 standards Img/L)

Calcumn 5.0 1.3 9.2 1.8 Magnesiusa 2.0 0.08 4.5 0.14 Sadnun 131.0 121.0 119.0 111.0

, Potasanna 4.9 1.2 2.3 1.7 Carbonnie 17.0 20.0 1.0 8.0 Bacerbanale 234.0 221.0 249.0 223.0 Sulfate 82.0 52.0 98.0 49.0 250.0 Chiande 7.7 3.2 3.2 2.0 250.0 Nitrate 0.01 0.02 0.02 0.01 10.0 Finande 1.1 0.32 0.34 0.27 4.0 or 2.0 Silica 10.0 18.0 20.0 18.0 TDS 402.0 351.0 406.0, 325.0 500.0 Conductivity

• 625.0 529.0 603.0 484.0 Alkalsamty 220.0 215.0 206.0 197.0 pH' 8.79 8.91 8.33 8.7 6.5-8.5 Arsense <0.001 <0.001 <0.001 <0.001 0.05 Bariusa 0.02 0.05 0.05 0.06 2.0 Cadenen 0.0002 <0.0001 <0.0001 <0.001 0.01 Chreeniian <0.01 <0.01 <0.01 <0.01 0.05 Copper <0.01 <0.01 <0.01 <0.01 1.0 Iron 0.02 <0.01 0.01 <0.01 0.3 lead <0.001 0.002 <0.001 <0.001 0.05 Manganese 0.01 0.01 <0.1 <0.01 0.05 Mercury <0.0001 <0.0001 <0.0001 <0.0001 0.002 Molybdemian <0.01 <0.01 <0.01 <0.01 Nickel <0.01 <0.01 <0.01 <0.01 0.1 Selenium <0.001 <0.001 <0.001 <0.001 0.05 Silver <0.01 <0.01 <0.01 <0.01 0.1 Uranium <0.001 <0.001 0.007 <0.001 Vanadium <0.01 <0.01 <0.01 <0.01 Zinc 0.01 0.01 <0.01 <0.01 5.0 Baron 0.05 0.06 0.07 0.05 Anmama <0.01 <0.01 <0.01 <0.01 Radium 226d 0.6 0.3 0.6 0.3 5.0

• Data couested Septesuber 1990 (HR1 1994

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NMA's Views on Staff .

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Proposals for Uranium -

I Recovery Regulatory Issues  !

I I

i NMA's Agrees With WMA

• NMA Agrees with WMA's Assessment of  !

the Economic State of the Industry NMA Agrees with WMA's Position on ISL Jurisdiction -

1

NMA's White Paper White Paper Helped Bring Us to This Point Staff to Be Commended for Their Efforts BUT Proposals DO NOT Go Far Enough to Solve Problems Identified in White Paper l

l l

l 1

I Non-Agreement State Jurisdiction l

Over the Nonradiological Components of11e.(2) Byproduct Material I

Proposals Do Not Address this Key Issue Part 41 Rulemaking Must Address this Issue NMA Requests NRC Review White Paper Arguments on this Issue 2

SECY-99-011 Draft Rulemaking Plan:

Domestic Licensing of Uranium and Thorium Recovery Facilities -

Proposed New 10 CFR Part 41 Part 41 Would Have Some Advantages l

NMA Does Not Object to Part 41 As Long As White PaperIssues Are Adequately Addressed q

SECY-99-012 Use of Uranium Mill Tailings Im oundments for the Disposal of i Non 11e 2) Byproduct Materiarand Reviews o Alternate Feed Applications Disposal of Non-11e.(2) Material

- NMA White Paper Suggested Revisions to Current Policy

- Prohibitions on Disposal Not Related to Health and Safety Concerns 1

3

{

Disposal of Non-11e.(2) Material ,

(Continued) I i

NMA Has Concerns About Legislative Solution but Willing to Help NMA Believes " Fallback Option"is Attractive BUT Is Still Too Restrictive

- Retains Prohibition on Disposal of 11e.(1) and SNM -- Does Not Consider Generic Criteria for Such Materials 1

l l

Disposal of Non-11e.(2) Material (Continued)

Main Reason for Restriction is to Avoid Dual Regulation but Position on Non-

, Agreement State Jurisdiction WillIncrease Likelihood ofDual Regulation Paper Does Not Discuss Dealing With Dual Regulation Through Memoranda of Understanding 4

Alternate Feed Economics ofDecision to Process Alternate -

Feed is Not Within NRC's Jurisdiction Staff Proposal Retains Financial Test '

Use of Financial Test Ignores Legislative History of UMTRCA Use ofFinancial Test Ignores Commission Statements SECY-99-013 Recommendations on Ways to improve the Efficiency of NRC Regulations at In Situ Leach Uranium Recovery Facilities StaffProposals Will Eliminate Some -

Aspects ofDual Regulation BUT

~

Paper Contains No Legal Analysis of NRC's Assertion ofJurisdiction i 1

5

Wyoming Mining Association (WMA)Prescatation to NRC Commissioners NRC Headquarters - Rockville, MD June 17, 1999 INTRODUCTION

- Good Morning. My name is Bill Kearney and today I am '

representing the Wyoming Mining Association (WMA). '

- I represent the WMA as Uranium Industry Committee Chairman and I am employed by Power Resources, Inc.

(PRI) as the Environmental Superintendent and RSO at the Highland Uranium Project, which is an ISL mining operation located in east-central Wyoming.

- On behalf of the WMA I would like to thank you for the o,pportunity to provide input froni the uranium recovery heensee perspective i

WMA Members

• WMA represents 30 mining companies in Wyoming - Wyoming leads the nation in production of bentonite, coal, trona (soda ash),

and uranium.

• WMA represents 11 uranium mining companies with activities in Wyoming and one company in western Nebraska. .

• More specifically, this includes 4 out of the 5 ISL's operating in the US, seven Title II mill sites in decommissioning, and one mill site in standby status.

1

Four Key Areas The current and expected state of the uranium recovery industry in the US.

The need for NRC to exercise preemption over d by-product waste at Title II sites.

Reasons why NRC should relinquish d jurisdiction over ISL wellfields.

How WMA could support new Part 41 regulations.

j l

State of the Uranium Recovery Industry Due to the present economic state of the US uranium industry it should not be viewed as a " growth" industry as portrayed in the SECY papers. (Graph of Historic and Projected Price of U3 0s)

All Wyoming Title II sites, except one, are in ,

decommissioning. ISL operations are struggling.

(Graph of Historic Wyoming Uranium Production)

• All four Wyoming ISL sites have recently reduced uranium production and/or reduced the number of employees. (Graph of Work Force Reductions by Wyoming ISL Companies since January 1998) thi n j

= Gg$'s*m neres a$gtion, the uran.ium indugry nEIfM*En"dYou'r'1"$Narges.# does not need

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, i Federal Preemption Over All Byproduct Material at Title II Sites a

Because Wyoming is not an Agreement State the state should be any (including non precludedconstituents.

radiological) from regulating

• Federal Preemption will assist both NRC and Licensees in implementing risk based ACL's.

It will also allow for a simplified license termination process and transfer of sites to DOE.

4

)

1 i

NRC Should Relinquish All Jurisdiction '

Over ISL Wellfields

. As described in the NMA " White Paper" the .

NRC has no legal authority to regulate ISL wellfields.

. Dual regulation with the EPA UIC Regulations and the State of Wyoming ISL Mining Regulations is not beneficial to any party.

• Mining is conducted at ISL wellfields and NRC has not regulated surface or underground mining.

r l

NRC Should Relinquish All Jurisdiction Over l ISL Wellfields (Continued)

If NRC relinquished all jurisdiction over ISL wellfields there would be no discernable adverse impacts for the following reasons:

- Wellfields and associated ground water would still be regulated by the EPA-UIC regulations and the 'WDEQ. .

- Contrary to popular belief, the ground water is unfit for human consumption BEFORE OR AFTER ISL mining INCLUDING AFTER RESTORATION, due to very high radium and radon concentrations.

5

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l l

NRC Shauld Relinquish AllJurisdiction Over ISL Wellfields (Continued)

.As NRC staff points out in SECY-013, removing i duplicative NRC oversight will not lessen the l protection of public health, safety, and the l

, environment. '

=

If NRC relinquished all jurisdiction over ISL wellfields  !

industry concerns and NRC staff positions on by-product waste water streams and sureties could ,

potentially be simplified and resolved. l l

WMA Support of New Part 41 Regulations '

a WMA could support New Part 41 regulations if they significantly reduced the NRC regulatory burden, and associated fees, on uranium recovery licensees.

This could be accomplished if NRC exercised preemption over a_Il by-product material at Title II sites and relinquished all jurisdiction over ISL wellfields.

. If the NRC relinquished ajljurisdiction at ISL wellfields, the scope of any New Part 41 regulations and the burden to licensees would be substantially reduced, and NRC could potentially reduce staff assigned to reviewing, approving and inspecting ground water issues associated with ISL wellfields.

6

Conclusions The WMA supports NRC activities geared towards streamlining and reducing regulatory oversight. .

WMA believes that the proposed actions just .

discussed, and other suggestions by the NMA l

could substantially benefit both licensees and the NRC without com promising any environmental and safety concerns.

1 On behalf of the members of the WMA I would I like to thank you for the opportunity to present our vleWs.

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Department of Energy Viewpoint NRC Commission Meeting SECY Papers99-011,012, AND 013 June 17,1999 The U.S. Depanment of Energy (DOE) has reviewed the three staff papers before the Conunission. The paper on disposal of other than 11.e.(2) byproduct material in mill tailings impoundments and the processing of other than natural ores (SECY 99-012) is of greatest interest to the Department. It has been more than 20 years since the passage of the Uranium Mill .

Tailings Radiation Control Act (UMTRCA). DOE has learned a lot about the containment and control of tailings during the execution of the Title I program. The Department realizes that many issues have arisen about what types of materials can and can't be placed in Title II '

impoundments since the passage of UMTRCA. UMTRCA was enact'ed by Congress to deal with uncontrolled uranium mill tailings, and we believe the use of these cells should not be expanded without congressional involvement to better define the types of material that can be placed in mill tailings impoundments and the financial arrangements for long-term stewardship. Also, due to budgetary constraints, the Department is not in the position to take on more long-term care responsibility for radioactive material.

If the NRC seeks legislation (SECY 99-012, Option 3), the disposal of NARM and secondary recovery wastes in mill tailings impoundments needs to be clarified. The Department does not l believe it has authority to accept non-11.e.(2) byproduct material under Section 83 of the Atomic Energy Act. The Department would not support a legislative proposal that would result in dual regulation of the completed tailings impoundment. We would also like to see the inclusion of a performance review by DOE before accepting Title Il sites into long-term care so that concerns raised by the Department during the transfer process have a mechanism for resolution. The Department believes NRC should increase a long-term care fee if maintenance were to be designed into Title Il reclamation plans. Options for funding the long-term care activities should also be considered.

i Revision of the staff guidance (SECY 99-012, Option 2) to allow for more flexibility in using the disposal capacity of mill tailings impoundments would remove the prohibition against the disposal of non-AEA material and material regulated under RCRA, TSCA, and CERCLA. The

• Department would oppose disposal of these materials without congressional direction.

NRC staff characterization of the DOE / ARCO discussions regarding the Bluewater site in New Mexico is incorrect. ARCO reached agreement with EPA for disposal of TSCA contaminated tailings in.a separate impoundment at the site. DOE requested an indemnification from ARCO holding the Government harmless from any PCB discharges from the site. This should not be interpreted as DOE's acceptance of "other material" with comparable chemical and radiological characteristics to byproduct material in a tailings impoundment under its Nuclear Waste Policy Act section 151(b) authority.

i

rc The papers on a rulemaking plan to create a new 10 CFR 41 that specifically addresses uranium and thorium recovery facilities (SECY 99-011) and regulation ofin-situ leach facilities

- (SECY 99-013) deal with how licensees are regulated and are not of concem to the DOE. The licensing of uranium and thorium facilities is an NRC issue and simplified regulations should be the desired outcome. The Department, however, believes that a small quantity exemption for

{

11.e.(2) material should be sought; especially for analytical labs to relieve them of the regulatory j and fimancial burdens required to perform analyses on samples of 11.e.(2) byproduct material. If  ;

- the elimination of prescriptive design requirements in 10 CFR Pan 40, Appendix A, is pursued in  !

favor of performance objectives, the Department would want assurances that Title II designs I

~ would be analogous to Title I designs in terms of maintenance requirements so that long-term j care costs are minimized. If not, the DOE would seek an increase in the long-term care fee.

l

)

DOE supports the promulgation of new regulations specific to evaporation pond sludges generated at In-Situ Leach Uranium Recovery Facilities. A simplified regulatory scheme and the non-proliferation of disposal cells would be positive outcomes.

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Presentation to the ,

USNRC Commissioners June 17,1999 <

i by the  !

Fuel Cycle Facilities Forurn Presented by: David G. Culberson, Chairman Introduction The Fuel Cycle Facilities Forum (FCFF)' is pleased to be given this opportunity to support the National Mining Association (NMA) with respect to the White Paper titled

" Recommendations for a Coordinated Approach to Regulating the Uranium Recovery Industry" and to comment on the two Federal Register Notices published April 12*

(64FR17506 and 64FR17690). Over the past several years, the FCFF and the NMA have held joint meetings to discuss topics of common interest. This has established a '

continuing relationship between the two organizations and has identified several areas where a coordinated approach to regulations is appropriate.

The White Paper discusses several of these areas where the FCFF has a direct and common interest with the NMA. One of our major concerns over the years has been the decommissioning of fuel cycle facilities. In general these facilities often represent decommissioning issues that are not easily addressed by the current regulations. Such facilities can be generally characterized as facilities that are contaminated with alpha emitting radio-nuclides, such as Uranium and Thorium, and often involved substantial volumes of contaminated soils that require some form oflong term disposal. The facilities included in our group include uranium enrichments from depleted Uranium up to highly enriched Uranium. In some cases the contamination also includes the progeny  ;

of Uranium and Thorium. Waste disposal costs often dominate the decommissioning l costs associated with such facilities.

lt is our opinion that the issues raised by the White Paper with respect to the NRC's Alternate Feed Policy and the disposal of Non-11E(2) Byproduct Materials in Tailing Impoundment Ponds can have a direct impact on the decommissioning of our fuel cycle facilities as well as other facilities throughout the country. The form of contaminated soils and soil-like materials associated with fuel cycle facilities is often very much like the same materials that are used as alternate feeds or disposed ofin the mill tailing

' The Fuel Cycle Facilities Forum is a voluntary group comprised of membership from companies that represent all aspects of the nuclear fuel cycle. A major effort of the group has been to actively engage in CC'D Ef SCCYthe rulemaking processes related to the decommissioning of fuel cycle facilities.

i JUN 99 7 : 53

impoundment ponds. Certainly there are issues that would have to addressed such as the enrichment of the Uranium but there appear to be ways to factor in such considerations.

~ Let me give you a few of the specific examples of material streams that the FCFF group would have that could be applicable to consideration as alternate feeds or direct disposal in the tailings impoundment ponds.

• Soils contaminated with Uranium and Thorium. There are a number of diverse operations that can result in such contamination, not all of which are normally l considered part of the nuclear fuel cycle. Recent NRC publications in the Federal -

Register along with the SDMP list provide adequate examples of specific situations.  ;

~ A generallisting is as follows: ,

{

• Depleted Uranium manufacturing facilities j e Normal Uranium conversion facilities j e ~ Facilities handling NORM materials j

e Rare Earth Processing facilities

{

e Zirconium manufacturing facilities

.- Depleted Uranium catalyst production facilities for petrochemical plants

• Current and former low and high enriched Uranium fuel processors (Commercial and Government)

. Lagoon sludge, slag, ash and other soil-like materials. These may contain other rare earth elements that might also be considered a valuable component.

. Disposal of the nations stockpile of depleted Uranium currently in the form of UF6.

This might be accomplished by conversion to a solid form such as a ceramic suitable

. for direct disposal.

• Waste streams from facilities such as metal extraction plants that contain cominercially viable concentrations of natural Uranium or Thorium.

This not an all inclusive list but each category represents specific examples of actual situations represented by the FCFF. Under today's regulations each case must be dealt

.with on a case-by-case basis but the regulations are so narrow as to effectively exclude all s of the situations listed above. In each situation it is necessary to consider the technical

- and economic factors to determine the suitability for use as an alternate feed or for direct ,

disposal. It is our belief and experience that the technical and economic factors will justify such action in essentially all cases.-

Although there are technical questions that must be addressed, the FCFF believes that such issue's can be satisfactorily resolved. Consideration is being given to issues such as the specific radioactivity of candidate materials in comparison with current materials

disposed in tailings impoundment ponds, the effect of uranium enrichment, etc. A clear NRC policy with respect to both attemate feeds and direct disposal in the impoundment ponds would provide the industry with another option for consideration in the decommissioning process with the possibility of establishing a more cost effective approach to the disposal of the large volumes of slightly contaminated materials. The i

m i

physical and radiological characteristics of the materials described above is in general similar to or more favorable than the materials currently being placed in the tailings J

impoundment ponds. In the specific case of radon emissions, most of the cases noted i

above involve processed Uranium and therefore radon emissions are not an inherent part )

of the radiological considerations as opposed to tailings from the processing of ores. j l

In summary, the membership of the Fuel Cycle Facilities Forum supports the position of 1

the National Mining Association regarding the use of alternate feed materials and the d disposal of non I le.(2) materials as described in the White Paper and urges the NRC to

. take the actions proposed by the NMA.

With respect to the' published final rule on " Radiological Criteria for License Termination

]

of Uranium Recovery Facilities" (64FR17506), the approach taken by the NRC to utilize j the existing soil radium standard to derive a dose criterion (benchmark approach) for the j cleanup of byproduct material other than radium in soil is to be commended. This .

approach will establish a consistent application of radiological protection criteria across a j

j site.

l i

With respect to the options considered in SECY-99-012, the FCFF strongly urges the NRC not to take a position the establishes a blanket prohibition against the presence of fission and activation products (1le(l) materials) in the material to be disposed ofin the tailings impoundment ponds. There are specific examples of situations where the Uranium contaminated soils contain measurable quantities of such byproduct materials (11e.(1)) by:

. natural fallout e returned fuel where the fuel cladding is contaminated, or e

fuel that has been slightly activated from having been stored in the spent fuel pool.

In such situations the Uranium constitutes the primary isotopes of concern and the 11e.(1)  !

materials are ofinsignificant concentrations. Low enriched Uranium fuel fabricators j receive fresh fuel back from nuclear power plant sites for recovery or re-fabrication where the fuel has been contaminated with I le.(1) material from having been stored in the fuel j

- storage pools at the power plant sites. It would be impossible to certify that "no" 11e.(1) i is present in Uranium contaminated soil from a site in such circumstances. Rather than a blanket prohibition, the NRC should take the approach that recognizes the primary contaminants of concern, and ignores contaminants that are present in insignificant quantities.'-

<y

1 1

4 Specific Examples Uranium Contaminated Soil from Fuel Manufacturing Facilities The decommissioning of Uranium Fuel Fabrication facilities often involves large volumes of soils contaminated with enriched Uranium. In two specific cases of facilities that ceased operation in the 1960's and 1970's, decommissioning work is underway and does involve the remediation of contaminated soil. One of these cases involves an j estimated volume of soil in the range of 200,000 cubic feet. The Uranium enrichment in the soil ranges from depleted to highly enriched. When the soil is collected and packaged, the enrichment of the bulk material is in the low enriched range of 3% to 7%

U-235. There are also insignificant but measurable concentrations of Co-60 and Cs-137 l due to the nature of some of the waste processing activities. These concentrations are in -

l the picoCi/ gram range and are above what fallout values would be in the background.

The concentrations of the Uranium are in the range of 10 to 100 ppm in the soil. Disposal cost at Envirocare for this volume of soil will be in the range of $7M to $14M.

Evaluation of the various options is currently underway because of the high cost of the current direct disposal option.

The presence of enriched Uranium complicates the possibility of use of such material as an attemate feed material at a Uranium recovery facility but with proper technical evaluation and licensing such considerations might be overcome. The introduction of a compatible form of depleted Uranium to downgrade the enrichment might, for example, make it feasible to consider the soil as a potential alternate feed material. In aay case the nature and radioactivity of such soils would be similar to the existing tailings material and should be considered for direct disposal.

2irconium Manufacturing Facility The manufacture of Zirconium metal involves the processing of Zircon sand which has low concentrations of Uranium and Thorium present in the sand. This is typical of many metal recovery facilities and is not unique to Zirconium manufacturing. The concentration of Uranium and Thorium in the incoming sand is low enough that the sand g

is not considered " Source Material" and therefore is not subject to licensing requirements. '

However, during the processing steps the Uranium, Thorium and Radium are ,

concentrated into different process streams. This requires that the facility be licensed and that the waste from certain portions of *he plant be treated as low level radioactive waste. ,

4 As a result, this facility is Utah's largest generator oflow level radioactive waste. Due to

{

issues with the Northeast Compact all the waste is sent to the Richland disposal site and l is not eligible to be shipped to Envirocare even though the waste would meet all the l license criteria for disposal at Envirocare. This results in a higher cost of waste disposal for the facility. The issue has been discussed with the state but the general feeling has been that approval of the Compact would not be forthcoming and no formal steps have been taken.

l l

The waste streams contain varying levels of Uranium and Thorium and should be considered as a potential source as an alternate feed material to a Uranium Recomry facility. In one specific case, a side stream of material contains over 1% Uramum. In addition to the Uranium and Thorium, there are other rare earth materials present the might warrant recovery for their value.: Although there are technical isstfes related to the use of these waste w eams as an alternate feed material, the option for consideration '

should be opened to the facility.

In addition to those waste streams that are shipped to Richland for disposal, there are

.- holding lagoons at the facility that include sediments which also contain Uranium, Thorium and Radium as contaminants. The volume of the sediments dominate the cost

• estimate to eventually decommission the site. If the sediments were to disposed at either Richland or Envirocare, the disposal cost could be in the hundreds of millions of dollars.

The current approach for preparing a decommissioning cost estimate has been to evaluate the cost and acceptability of an on-site disposal cell as the basis for the decommissioning cost estimate. Such sediments also offer the potential for consideration as an alternate feed material or for direct disposal in a tailings pile and such options should be open to the facility. Another possibility has been the option of conducting an onsite processing operation that would concentrate the radioactive components into a smaller volume and leave the larger volume of chemical constituents available for recycle. The smaller concentrated volume could then be considered as an alternate feed material.

In both these cases, the radiological properties of the waste streams and the lagoon sediments are similar to what a Uranium Recovery facility would normally handle and dispose ofin the tailings pile. Although specific consideration must be given to the other chemkal constituents present, it is expected that technical answers are feasible and that these materials make definite candidates either as an alternate feed matericl or for direct disposalin a tailings pile.

Depleted Uranium Stockpiles

' The current national stockpiles of depleted Uranium as UF6 also offer another possibility for consideration. It would be technically feasible to process this stockpile into a physical and chemical form suitable for direct disposal in a tailings pile. For example, the gaseous UF6 could be converted into a ceramic form. In this' case it would be feasible to demonstrate: that the chemical and radiological nature of the material would be similar to those materials already existing in the tailings pile. A national policy to implement such an option for disposal of the depleted UF6 stockpile should consider using the existing disposal capacity of the tailings piles.

P

I, l i I

U.S. ENERGY CORP.

RIVERTON, WYOMING 82501 i

877 NORTH 8tp WEST PHONE (307) 856-s271 l l

l Mr. Bill Hill, Office of the Secretary Nuclear Regulatory Commission VIA FAX Washington D. C.

fx: 301 A15.1672 l 14 June 1999 ,

1 RE: Support for NRC Staff Proposals for Uranium Recovery Regulatory Issues l

Dear Mr. Hill:

4 i Lank you for taking thh time to read this consyssdence prior tp the abovementioned meeting. l I (

Iwillbe brief. , ,

I I

The purpose of this lettdr is to notify the Commission of our support of the staff r=+~== Mons contahed in SECY-99-011 and SECY 99-012. U. S. Energy Corp. is the owner and Oper of the Shootaring Canyon Uranium Mill near Hankaville,UT as wellas a joint venture owner of tw Sweetwater Uranium Millnear Rawlins, WY....the last two uranium mills constructedin this country.

i We support the non-leg'slative NRC Staffs recommendations that guidance for altemative feed and non-11e.(2) storage be revised. Our reasons are numerous, however the primary reasons are

==marized below: , l I

1. Remove Curre t Material Exclusiens. Oversight fromthe NRC is, and nas been, very thorough. Public safetp and health has always been the driver f9r NRC regulation and rule maWg Currently, cerpu'n radioactive materials are precluded imm being pree-d or disposed in uranium mill facilitifs. The uranium industry, and Staff cone'ur, that the prohibitions in guidance against the dikposal of non-AEA, RCRA, TSCA and CERCLA materials should be l removed. Processing sqnd/or storage of these materials in a uraruum mill tailings impoundment is  !

logical as these facilities were originally designed, constructed andlicensed for same. There is .

ailings facilities. Further, these  !

substantial disposal capity available in existing uranium mill <

e facilities are subject topubstantial regulations which provides pptection for the public health and I environment from both the radiological and non-radiological cc nstituents.

t

2. Performance Based License Amendment. His Staff recommendation makes good sense. This recommah ion t is precisely what uranium mill operators do routinely with primary uranium feeds. We consider the uranium content of the material fed to the mill. The material may be blended up or { lown da;*ading on the uranium content. Any recovery of uranium is a retum of a resource tolsociety. Why should alternative feeds by any different?

I

3. National Seen'rity. The proposed recommendations ultimately allow the preservation of the few ranaining urahium mills in this country. At one time there were 42 operating uranium mills in the United States producing some 42 million pounds of U308 concentrates with the Esc'D. Er dedpstry employing inexcess of 20,000 individuals. Today, six remain and production has 16 JN 59 L; 03 FAX (307) 857-30s0

---'c-- . . . . .n .n.. ,

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Page 2 NRC g i

14 June 1999 ' I

&vyA to less than 3.8 million pounds and employment less than 1000. However, U. S. nuclear reactors still consume 42 million pounds, the majority of which is imported. We believe that it is important for our nation and national security to maintain u%um milling capability. Staff 'fl recommendations allow,the preservation and. continued operatioit of these facilities until the i l uranium priceimprovesi ,

I t

• 4.

feed and 11e.(2) issues are clear....to avoid uranium milling faci operational and dispositl,on guidance of more than one regulatory body. Currently, NRC l

provides this govemance and it should stay that way. #

In summary, we believe that uranium mills govemance should thst entirely with the Nuclear Regulator,' Commission. We applaud the NRC's efforts to clarify their position on attemative feed and non-11e.(2) m)terial storage at uranium mills. This clarification should allow uranium mills to process and store those radioactive materials that they gere originally designed and built for which follows the.NRC's goals and objectives of consolidating and properly storing radioactive materials if.this country.

I Sincerely,  ! )

Hal Harron eith Larsen Jcbp L. Larsen President C11h'rman V. P.

t *  ;

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Department of Energy Viewpoint NRC Commission Meeting SECY Papers99-011,012, AND 013 June 17,1999 The U.S. Department of Energy (DOE) has reviewed the three staff papers before the Commission. The paper on disposal of other than 11.e.(2) byproduct material in mill tailings impoundments and the processing of other than natural ores (SECY 99-012) is of greatest interest to the Department. It has been more than 20 years since the passage of the Uranium Mill Tailings Radiation Control Act (UMTRCA). DOE has learned a lot about the containment and control of tailings during the execution of the Title I program. The Department realizes that l , many issues have arisen about what types of materials can and can't be placed in Title II impoundments since the passage of UMTRCA. UMTRCA was enacted by Congress to deal with l uncontrolled uranium mill tailings, and we believe the use of these cells should not be expanded without congressional involvement to better derme the types of material that can be placed in mill tailings impoundments and the financial arrangements for long-term stewardship. Also, due to budgetary constraints, the Department is not in the position to take on more long-term care responsibility for radioactive material.

l If tne NRC seeks legislation (SECY 99-012, Option 3), the disposal of NARM and secondary recovery wastes in mill tailings impoundments needs to be clarified. The Department does not believe it has authority to accept non-11.e.(2) byproduct material under Section 83 of the Atomic Energy Act. The Department would not support a legislative proposal that would result in dual l regulation of the completed tailings impoundment. We would also like to see the inclusion of a performance review by DOE before accepting Title Il sites into long-term care so that concems raised by the Department during the transfer process have a mechanism for resolution. The Department believes bRC should increase a long-term care fee if maintenance were to be l

designed into Title II reclamation plans. Options for funding the long-term care activities should I also be considered. -

Revision of the staff guidance (SECY 99-012, Option 2) to allow for more flexibility in using the disposal capacity of mill tailings impoundments would remove the prohibition against the l

, disposal of non-AEA material and material regulated under RCRA, TSCA, and CERCLA. The Department would oppose disposal of these materials without congressional direction.

NRC staff characterization of the DOE / ARCO discussions regarding the Bluewater site in New Mexico is incorrect. ARCO reached agreement with EPA for disposal of TSCA contaminated tailings in a separate impoundment at the site. DOE requested an indemnification from ARCO holding the Govemment harmless from any PCB discharges from the site. This should not be interpreted as DOE's acceptance of "other material" with comparable chemical l and radiological characteristics to byproduct material in a tailings impoundment under its l Nuclear Waste Policy Act section 151(b) authority.

l l ?.EC'D B! SECT l

16 JUN 99 i; 03 L

The papers on a rulemaking plan to create a new 10 CFR 41 that specifically addresses uranium and thorium recovery facilities (SECY 99-011) and regulation ofin-situ leach facilities (SECY 99-013) deal with how licensees are regulated and are not of concern to the DOE. The licensing of uranium and thorium facilities is an NRC issue and simplified regulations should be the desired outcome.' The Department, however, believes that a small quantity exemption for 11.e.(2) material should be sought; especially for analytical labs to relieve them of the regulatory and financial burdens required to perform analyses on samples of 11.e.(2) byproduct material. If the elimination of prescriptive design requirements in 10 CFR Part 40, Appendix A, is pursued in favor of performance objectives, the Department would want assurances that Title II designs would be analogous to Title I designs in terms of maintenance requirements so that long-term ,

care costs are minimized. If not, the DOE would seek an increase in the long-term care fee.

DOE supports the promulgation of new regulations specific to evaporation pond sludges a generated at In-Situ Leach Uranium Recovery Facilities. A simplified regulatory scheme and the non-proliferation of disposal cells would be positive outcomes.

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l STATEMENT OF RICHARD L. LAWSON PRESIDENT AND CEO OF THE NATIONAL MINING ASSOCIATION TO THE NUCLEAR REGULATORY COMMISSION REGARDING STAFF PROPOSALS FOR URANIUM .

RECOVERY REGULATORY ISSUES  ;

SECY PAPERS99-011,99-012 AND 99-013 -

JUNE 17,1999 l y i National Mining Association *'l Foundation For America's Future l

e h

Good Morning, I am Richard L. Lawson, President and CEO of the National Mining L Association. I appreciate the invitation to present NMA's views on the staff proposals for uranium recovery regulatory issues. I have with me Ms. Katic Sweeney, Associate General l Counsel for NMA and Mr. Anthony Thompson, outside counsel for NMA to help answer l specific questions regarding our presentation. We have members from the industry here as well

to provide additional insights as needed.

Today, l'will highlight the key points of the detailed written materials NMA submitted.

Also, I do not want to repeat points made by Bill Kearney of the Wyoming Mining Association .

regarding the current economic state of the industry. NMA agrees, however, with the WMA i-assessment and the need to take the economic situation into account when looking at the impact of regulatory actions. '

NMA is pleased that its White Paper has helped bring us to this point. NMA commends the Staff on the work it has done and indeed, each staff proposal makes some positive changes.

However, none of the proposals go far enough to address the problems and potential solutions identified in NMA's White Paper.

NMA is particularly concemed that none of the staffproposals address non-Agreement Statejurisdiction over the nonradiological components of 11e.(2) byproduct material, one of the two top issues the White Paper identified as being a priority for industry, the other being jurisdiction over ISL Wellfields.

NMA questions whether it makes sense for NRC to proceed with a Part 41 rulemaking if the concurrentjurisdiction issue is not addressed as part of that process. While a separate regulatory section may have advantages, if this jurisdictional issue is not resolved, Part 41 will only be a band-aid when surgery would be more appropriate.

NMA believes the concurrentjurisdiction issue could be properly aired during the

- rulemaking process. Including this issue in the rulemaking would provide the type of finality s

merited by this important issue. NMA requests that NRC review carefully the White Paper arguments that NRC has exclusive jurisdiction over byproduct material and that NRC needs to exercise this jurisdiction in order to facilitate site closure by eliminating dual jurisdiction.

• SECY-99-011 ' Draft Rulemaking Plan: Domestic Licensing of Uranium and Thorium Recovery Facilities - Proposed New 10 CFR Part 41 Establishing a separate regulatory section for uranium recovery facilities would have some advantages. As indicated in our scoping commerits lar summer, we do not object to the establishment of Part 41, as long as through the rulemaking process, all the White Paper issues are raised and addressed.

I A

SECY-99-012 Use of Uranium Mill Tailings Impoundments for the Disposal of Waste Other than lle.(2) Byproduct Material and Reviews of Applications to Process Material Other than Natural Uranium Ores Disnosal Of Non-11el2) Material The Commission has suggested that the staff explore ways to use mill tailings l impoundment as possible disposal cells for material from other waste sites. NMA's White Paper raised the same issue by suggesting that the current staff disposal Guidance is too restrictive and unnecessarily inhibits disposal of other similar waste in tailings impoundments.

I think that there is a lot of agreement that it is good public policy to provide disposal options for these low-level radioactive /high volume type wastes that currently have only one possible disposal option. Even the Ad Hoc Panel report accompanying the Staff paper emphasizes that the current exclucion ofnon-1 le.(2) materials is "not based on health and safety considerations." In light of the essential failure of the Compact system and the future impact of NRC's new decommissioning rules, which will likely lead to the creation of even more such wastes, now is the time to address these issues.

The Staff's recommended solution is to seek legislative change. A legislative solution would provide Congressional certainty. Pursuing legislation at this juncture, with an election year approaching, however, may not be a realistic option. Nevertheless, if the Commission decides to pursue legislation, NMA will assist NRC in that endeavor.

The Staff's fallback option is to revise the guidance with respect to "similar" waste materials, while retaining the restrictions on disposal of 11.e(l) byproduct material and special nuclear material. This option is attractive, but still too restrictive.

The White Paper suggested that the Commission consider developing for public comment some generic criteria with respect to materials containing SNM or 11e.(1) material to the extent the waste is similar in terms of radiological activity and presents no potentially significant incremental hazard to that posed by the materials already in mill tailings impoundments. This fallback option essentially ignores the suggestion of NMA's White Paper that a public airing of potential generic criteria for disposal of SNM or 11e.(1) in tailings piles would be useful and could lead to a strategy for addressing duplicative and overlapping regulatory requirements.

The main rationale provided for restricting the disposal of non1 le.(2) material is to

" reduce the potential for regulation of tailings impoundments by more than one regulatory agency." Yet, the emphasis the of the Staff Paper, Differing Professional View and Ad Hoc Panel on the problems associated with dualjurisdiction as the guiiing force behind the non-11 e.(2) policy is in absolute conflict with the position taken by the Commissien staff with respect to concurrentjurisdiction over the non-radiological components of 11e.(2) byproduct material.

Indeed, the total focus of these papers on the problems associated with overlapping jurisdiction 2

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only highlights the utter folly of the Commission refusing to assert its mandate to implement and enforce UMTRCA through its permitting process, presumably to the exclusion of others including EPA and non-Agreement States. ,

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The dichotomy between the concems associated with overlapping jurisdiction and its potential adverse impacts on the of transfer Title Il sites to DOE and the legal staff's policy on I federal preemption over all 11e.(2) byproduct material (which includes both radiological and non-radiological components in a single definition) is highlighted by a recent NRC/ DOE protocol on License Termication and Site Transfer. In that protocol NRC states: .

The NRC agrees that it will not terminate any site-specific license until the site licensee has demonstrated that allissues with state regulatory authorities have been resolved."(emphasis added).

The Commission's failure to assert federal preemption over all components of"AEA 1le.(2) byproduct material is leading to the very thing that the Staff Paper says must be avoided

- non-agreement state review of NRC approved reclamation plans.

l As the' Ad Hoc Panel points out, the Staff Paper makes no attempt to discuss a strategy of dealing with potential duplicative and overlapping regulation through possible memoranda of understanding with relevant state or federal agencies, and, notes that the rulemaking process would provide a process for thorough ventilation of these issues as well as thefederal preemption ir ae raised in the NMA White Paper.

Use of Altemate Feed NMA's White Paper suggests that the economics of a licensee's decision to process altemate feeds is not within NRC regulatoryjurisdiction, which is limited to the potential health and safety impacts of such processing. The Staff Paper seeks guidance from the Commission either to propose legislative changes or to allow modification of the guidance to include criteria for a licensee to provide certification that the material is or will be processed primarily for its source material content. '

The new criteria would allow the licensee to demonstrate that the material can be disposed of directly in the tailings impoundment without further processing as sufficient

• justification for processing it. The licensee can providejustification on "any other basis of equivalent capability to make the demonstration." The financial considerations test would be retained "if the licensee chooses to use that basis."

The retention of the financial test ignores the legislative history of UMTRCA and Commission statements, which suggeet that a licensed uranium mill's primary purpose is, by defnition, to process for feed for its source material content. In effect, by seeking and obtaining 3

I a uranium milling license, the licensee has stated its intent to process primarily for source material content. ,

The attemate feed paper fails to address UMTRCA, its legislative history and Commission statements in the record indicating that the word "primarily" differentiates between uranium recovery at licensed fuel cycle facilities whose primary purpose is to process for source material, and thereby create 11e.(2) material and secondary or side stream uranium recovery at other types of mineral recovery facilities. At those facilities uranium recovery is not the primary

' purpose of the recovery facilities processes, and 11e.(2) material is not created. The Guidance was intended to ensure that processing alternate feeds results in the creation of 11e.(2) material.

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It was not intended to require an inquiry into the economic motivations of the processor.

j SECY-99-013 Recommendations on Ways to Improve the Efficiency of NRC 1

Regulations atIn Situ Leach Uranium Recovery Facilities NMA agrees with WMA regarding the Staffpaper on ISL jurisdiction but I have one  !

additional point. While the paper contains recommendations that will eliminate some aspects of the deal regulation ofISL wellfields, the. paper does not answer the question of why NRC is

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assertingjurisdiction over the wellfields. NMA's White Paper questioned NRCjurisdiction over the underground aspects ofISL facilities. The Staff paper starts on the " fifty-yard line" and is devoid of any discussion of the bases for NRC'sjurisdiction in the wellfield. This paper cannot be considered complete without an analysis of NRC's jurisdictional bases.

Thank you again for inviting us here today.

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NMA'S BRIEFING PAPER REGARDING NRC STAFF PAPERS AND ATTACHMENTS RE: DRAFT RULEMAKING PLAN: DOMESTIC LICENSING OF URANIUM AND THORIUM RECOVER.Y FACILITIES PROPOSED NEW 10 C.F.R. PART 41; USE OF URANIUM

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MILL TAILINGS INPOUNDMENTS FOR DISPOSAL OF WASTE OTHER THAN 11e.(2) BYPRODUCT .

MATERIAL; AND REVIEWS OF APPLICATIONS TO PROCESS MATERIAL OTHER THAN NATURAL URANIUM ORES-SECYS99-011,99-012 kk -

National Mining Association

• Foundation For America's Future l

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I. INTRODUCTION The National Mining Association ("NMA") presented its " Recommendations for a Coordinated Approach to Regulation of the Uranium Recovery Industry: a White Paper"

("NMA White Paper" or White Paper") to stimulate strategic thinking about conflicting and confusing reg'ulatory requirements in the context of the future of the uranium recovery industry including additional uses for conventional mill tailings operations and decreased regulatory oversight ofin situ leach ("ISL") uranium recovery operations. The NMA White Paper addressed a number of specific topics including the use of uranium mill tailings impoundments for the disposal of other than 11e.(2) byproduct material, restrictions on the acceptance of alternate feed materials for processing at conventional uranium mills, overlapping and duplicative regulation at ISL facilities and the problems caused by NRC's failure to assert federal preemption over all. aspects of regulation of 11e.(2) by product material. At least partly in 1

response to the NMA White Paper and ongoing dialogue with the uranium recovery industry, NRC Staff began consideration of a separate regulatory section, namely 10 C.F.R. Part 41, to deal solely with the domestic licensing of uranium and thorium recovery facilities.

The NRC Staff has presented a draR rulemaking plan ("DRP") to the Commission seeking guidance with respect to some of the issues raised in the White Paper, other issues raised during public hearings on a potential Part 41, and issues raised in individual licensing activities.

The DRP suggests that implementing 10 C.F.R. Part 40 over the years, and particularly in the last few years, has led to the conclusion that " revisions are necessary to correct problems that are detracting from a consistent and effective regulatory program." In essence, the Staff appears to believe that a thorough ventilation of some of the controversial issues presented in the White Paper and others generated by an advanced notice of proposal rulemaking or a rulemaking l 2

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i proposal will provide valuable information and insight into a potential new Part 41 regulatory program. A program that will be designed to more specifically address the regulatory issues associated with ISL facilities in particular and the disposal of non-1 le.(2) material in tailings piles and processing of alternate feed materials at conventional uranium mills. The Staff proposal would, at the same time, streamline the provisions of current Part 40 appendix A that are primarily relevant to conventional uranium mills based on this same experience.

NMA has stated that it does not necessarily oppose a new Part 41 rulemaking proceeding l to address the issues noted above. NMA maintains a new Part 41 can be worthwhile as long as it preserves the fundamental flexibility and performance orientation of Appendix A while modifying parts which are either irrelevant or inappropriate for conventional mills. However, as discussed in detail below, NMA has concems with each of the staff recommended positions on three White Paper issues: disposal of noni le.(2) material in tailings piles; the use of alternate feed; and jurisdiction over ISL wellfields. In addition, NRC has yet to release any draft papers / positions on one of the two criticaljurisdictional issue raised in the White Paper:

concurrentjurisdiction over the nonradiological components of byproduct material. NMA questions whether it makes sense for NRC to proceed with a Part 41 rulemaking if the concurrent

' jurisdiction issue is not addressed as part of that process. While a separate regulatory section for uranium recovery facilities may have advantages, if thisjurisdictional issue is not resolved, Part 41 will only be a band-aid when surgery would be more appropriate. NMA would like to continue to work with NRC to ensure that any rulemaking developed focuses on fostering a regulatory climate that enables an already beleaguered industry to survive and at the same time promote NRC's mission to protect human health and the environment. Additionally, NMA notes that the scope of any new regulations addressing ISL mining will depend heavily upon NRC's 3

decision regarding withdrawal from active oversight ofISL well fields. With respect to an new regulations addressing alternate feeds and non-1le.(2) byproduct material, the sooner that mill tailings facilities can take more alternate feeds and dispose of more types of waste without long regulatory delays the sooner the public interest will be served by more cost effective disposition of wastes that are effectively being stored indefinitely now.

II. DISPOSAL OF WASTE OTHER THAN 11e.(2) BYPRODUCT MATERIAL AND VIEWS OF APPLICATIONS TO PROCESS ALTERNATE FEEDS.

A. Disposal of non-11e.(2) by product material

1. StaffPapers The Staffs' non-11c.(2) paper notes that the Commission in Direction Setting Issue 9 (Option 7) ofits Staff Requirements Memorandum (SRM) dated March 31,1997, suggested that the Staff explore ways to use mill tailings impoundments as possible disposal cells for material from other waste sites. The Staff Paper also notes that the White Paper has directly raised the same issue by suggesting that the current Staff Guidance on the disposal of non-11e.(2) material is too restrictive and unnecessarily inhibits disposal of other similar waste materials in tailings {

impoundments.

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, The White Paper also suggests that it is good public policy to provide disposal options for l these low-level radioactive /high volume type wastes that currently have only one possible disposal option. In light of the essential failure of the compact system and the future impact of ,

I NRC's new decommissioning and decontamination ("D&D") rules, which ultimately will lead to  !

the creation of even more such wastes that will require new cost effective disposal options, now is the time to address these issues including the controversial aspects thereof.

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The Staff paper indicates that the primary purpose of the non-1 le.(2) guidance is to

" reduce the potential for regulation of tailings impoundments by more than one regulatory agency." For example, the paper indicates that disposal ofnon-11e.(2) material in tailings s impoundments could " create dualjurisdiction of the impoundments by NRC and the state. This would allow the state an opportunity to require changes to NRC-accepted final tailings stabilization and remediation plans." See Staff paper at 3,6. The report of the Ad Hoc Panel j

("AHP") echoes the Staff paper with respect to the purpose of excluding non-11e.(2) materials i and further noting that the exclusion is "not based on health and safety considerations." l l

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The Staff paper further observes that the overhp with respect to "e.g. the final design for the reclamation and long term stabilization of mill tailings" could lead to associated additional regulation which could decrease the viability of this approach. Id. At 6. The Differing Professional View ("DPV") voices the concem that additional resources of both the Department of Energy (" DOE") and NRC could be required to address these kinds of conflicts.

The Staff paper further indicates that the Uranium Mill Tailings Radiation Control Act of 1978 ("UMTRCA")"contains elements supporting the view that Congress intended the dual regulation of these sites to be avoided." Senator Randolph, during discussions on UMTRCA, stated that: " standards and requirements under the amendment of[UMTRCA) will be implemented and enforced by the Commission through its permitting process." As a result, he '

noted there will be no Environmental Protection Agency (" EPA") permitting under the provisions of the Solid Waste Disposal Act. Id. At 4. Finally, the StaffPaper discusses DOE's concerns with regard to taking sites for long term custodial care where there are overlapping and duplicative regulatory requirements imposed or potentially imposed by either EPA or individual states. Thus, the paper notes that to broaden or to relax the requirements or the guidance with 5

respect to the disposal of non-1 le.(2) material would require substantial DOE involvement and approval since section 151(b) of the Nuclear Waste Policy Act does not require DOE to take radioactive waste materials but rather allows DOE to take such materials. In contrast DOE is required to take 11e.(2) byproduct by UMTRCA. See AHP p.4, fn. I1. l l

l The Staff Paper presents the following options to the Commission.

(1) essentially retain the current policy as is; i

(2) revise the guidance with respect to "similar" waste materials containing j primordial elements, retain the restrictions on disposal of 11.e(1) byproduct material (11 e.(1)) and special nuclear material ("SNM") so that no fission or transuranic materials would be allowed. Remove the requirement for Compact approval to the extent that it is not legally required; (3) ' Propose legislation to solve the problem. (The DPV endorses the legislative approach and provides a proposed fix ofits own.)

2. NMA Comment:

For the reasons stated in the White Paper, Option One is not satisfactory to NMA. NMA has concerns about Option Three, as it may prove impossible to get Congress to address this issue so close to the Presidential election. If the Commission decides to proceed with the legislative option, however, NMA will assist in any way it can.

With regard to Option Two, while more attractive than Option One, it continues to be too restrictive. The White Paper suggests that the Commission consider developing for public comment some generic criteria with respect to materials containing SNM or perhaps even 6

1 11e.(1) material to the extent the waste is similar in terms of activity and presents no potentially significant incremental hazard to that posed by the materials already in mill tailings impoundments. In this vein, NMA suggests that materials containing traces of transuranics or i

fissionable materials in clearly identified de minimis quantities not be prohibited from being placed in 11e.(2) byproduct material tailings impoundments; Evaluation of appropriate generic criteria could consider radi.oactivity limits (e.g. the ,

1980 Branch Technical Position ("BTP") would have permitted burial of up to 2,000 picocunes per gram of enriched or depleted uranium under certain circumstances, which included i

restrictions on site use. Recognizing that BTP was based on a different dose limit than the current 100 milliren standard, the BTP analytical protocol still provides a starting point for considering what levels of SNM could appropriately be placed in tailings piles.) Many of these materials would not have any significant radon component, which has been identified by both EPA and NRC during the development of the rules applicable to uranium mill tailings facilities as the primary potential public health threat. Other considerations could be physical form, moisture content, and solubility of the radionuclides or compounds containing radionuclides and I transportation issues.

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The Staff paper therefore, is deficient in essentially ignoring the suggestion of NMA's

' White Paper that a public airing of potential generic criteria would be useful and could lead to a '

strategy for addressing duplicative and overlapping regulatory requirements. In addition, the 1 AHP points out that the Staff paper makes no attempt to discuss a strategy of dealing with potential duplicative and overlapping regulation through possible memoranda of understanding with relevant state or federal agencies, and, notes that a comment period on an advanced notice of proposed rulemaking, proposed rule or a proposed policy would provide a process for 7

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thorough ventilation of these issues as the White Paper suggests. The AHP also suggests that the Commission investigate thefederalpreemption issue which is raised in the White Paper with respect to overlapping and dualjurisdiction and that the Staff should provide a legal analysis indicating whether or not Compact approval for disposal of such materials would be legally required. NMA agrees with the AHP that these are deficiencies in the Staff paper.

• NMA also would like to point out that the Staff paper, DPV and AHP papers emphasize i l

many times that avoiding the problems associated with overlapping duplicative, jurisdiction is the guiding force behind the non-1le.(2) policy. These papers, therefore, are in absolute conflict l with the position taken by Commission staff with respect to concurrentjurisdiction over the non'-

radiological components of Ile.(2) byproduct material. Indeed, the total focus of the staff, DPV and AHP papers on the problems associate I with overlappingjurisdiction only highlights the utter folly of the Commission refusing to assert its mandate, as stated by Senator Randolph, to implement and enforce UMTRCA through its permitting process, presumably to the exclusion of l

other potential regulatory entities such as EPA and non-Agreement States. There exists a dichotomy between (1) the virtual paranoia associated with overlapping jurisdiction and its potential adverse impacts on the transfer of Title II sites to DOE manifested in these papers, and the Dawn Mining case, and (2) the Commission Staff's policy of not asserting federal l preemption over all 11e.(2) byproduct material (which includes both radiological and non-radiological components in a single definition). This dichotomy is highlighted by the NRC/ DOE protocol entitled " License Termination / Site Transfer Protocol Between U.S. Department of Energy and the U.S. Nuclear Regulatory Commission." In paragraph four of that protocol NRC states:

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"The NRC agrees that it will not terminate any site-specific license until the site licensee has 1 demonstrated that allissues with state regulatory I authorities have been resolved."(emphasis added).

The Commission's failure to assert federal preemption over all components of AEA 11e.(2) byproduct material is leading to the very thing that the Staff paper says must be avoided: l non-Agreement State review of NRC approved reclamation plans. With the new fee proposal, the increased Staff time necessary to address these problems noted in the DPV will further .

burden the uranium recovery industry. Add to this the fact that uranium recovery licensees are paying for Agreement State oversight and the Commission's failure to fulfill its statutory responsibilities becomes even more egregious.

4 B. Alternate Feed Guidance.

(1) Staff Papers.

The Staff Paper on the processing of alternate feed materials discusses the current i

guidance requirements wherein a licensee may provide certification, supported by ajustification  ;

I based on either the high uranium content of the material, financial considerations or other  !

factors, that the material is being processed "primarily for its source material content." The Staff paper further indicates that the criterion which includes financial considerations to support the milling of alternate feed is based on "an order from the presiding officer (PO)in a 1983 hearing," '

1 involving Staff approval of Umetco Minerals Corporation's application to test alternate feed

• I material for possible processing at the White Mesa Mill near Blanding, Utah. See Staff paper at 4 7.

The Staff paper suggests that while the PO's order did not overturn the Staff's approval of Umetco's application, it did discuss the PO's concerns with the Staffs review including "a need ,

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to examine the economic factors of a licensee's request to process alternate feed materials." This review of economics "would help ensure that mill licensees were not trying to sidestep other licensing requirements by processing materials simply to change its legal definition." Id. At 8.

The State of Utah had argued in that proceeding that processing material for a fee that could not be processed profitably without the fee would in effect be simply processing the material to

^ attempt to change its legal definition and would result in sham disposal that should not be tolerated by the Commission.

The State of Utah continues to advocate this position at the current time suggesting that by processing materials that, in and of themselves, are not profitable based solely on the uranium l

content of the material being processed is waste disposal that is, or should be, subject to waste l disposal regulatory requirements including state siting and gubematorial approval requirements.

The DPV essentially adopts the position of the State of Utah on this matter. See DPV at pp. 4-5.

. NMA's " White Paper" suggests that the economics of a licensee's decision to process alternate feeds, as with conventional ores, is not within NRC regulatoryjurisdiction, which focuses on the potential health and safety impacts of such processing. l The Staff Paper then reports on the decision of the PO in a case involving International Uranitun (USA) Corporation ("IUC") in which the PO rejected Utah's position based on language in the Atomic Energy Act ("AEA") which defines by-product material, as "the tailings or waste produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content" (emphasis added). The PO ruled that "primarily" does not refer to a test of motive orpurpose but rather to what is removed from the material being processed. Therefore, the PO found, "if source material is removed from the 10

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alternate feed material in a uranium milling process, it meets the primarily test." The Staff Paper notes that this case is currently on appeal to the Commission.

The Staff Paper seeks guidance from the Commission either to propose legislative changes or to allow it to modify its guidance to include criteria for a licensee to justify certification that the material is or will be processed primarily for its source material content.

• The new criteria would allow the licensee to demonstrate that the material can be disposed of .

directly in the tailings impoundment without further processing, which in accord with the reasoning of the "co-disposal test," assures that it is indeed being processed primarily for its

. source material content. The licensee can provide justification on "any other basis of equivalent capability to make the demonstration". The financial considerations test would be left in "if the licensee chooses to use that basis."

(2) NMA Comment: '

The Staff paper, the DPV and the AHP paper are all deficient in the same fundamental 4

respect. These papers all fail to mention IUC's May 9,1998 Petition for Reconsideration of the Nuclear Regulatory Commission's " Final Position and Guidance on the Use of Uranium Feed Material Other Than Ores" which the Commission indicated it would take up in conjunction with ,

a potential Part 41 rulemaking. The paper also fails to address the arguments made by IUC in its briefin opposition to the State of Utah to the PO on which the PO based his opinion rejecting '

- Utah's position. As a result, the current discussion of altemate feed guidance has essentially passed the paper (as well as the other Staff papers) by as the paper does not address all of the issues raised'that are currently before the Commission for consideration.

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f Notably, the paper does not discuss the requirements of UMTRCA and its legislative history as they relate to the primary focus of UMTRCA, which was the creation of 11e.(2) by-product material, which in tum is the primary focus ofNRC's uranium mill tailings regulatory program. Further, the paper fails to take into consideration the fact that the Staffs current guidance or any future guidance or rules that fail to adequately take into account UMTRCA and its legislative history are subject to challenge for failure to recognize Congressional intent.

The IUC Petition and briefs on file with the Commission in the IUC matter demonstrate

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that the legislative history of UMTRCA and numerous Commission statements make it plain that 1

the definition of ore necessarily must be tied to the definition of 11e.(2) by-product material. '

NRC has clearly stated its concem that the dermition of I le.(2) by-product material and the Commission definition of ore be co-extensive so that no waste streams generated at uranium

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recovery facdities would not be considered 11c.(2) by-product material. In view of the concems about long term controls over uranium mill tailings that prompted passage of UMTRCA, NRC

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wanted to assure that "all" wastes from processing source material at uranium mills would be 11e.(2) material and would not be either orphan waste or subject to dual regulatory jurisdiction.

The legislative history of UMTRCA and Commission statements suggest that a licensed nuclear fuel cycle facility's (i.e, a uranium mill's) primary purpose is by definition to process feed for its source material (i.e. uranium or thorium) content. In effect, by seeking and obtaining a uranium milling license, the licensee has stated its intent to process primarily for source material content. Otherwise, why on earth would any entity take on all of the stringent ongoing oversight of operations and the significant long-term liabilities associated with final disposal of uranium mill tailings. The inree papers utterly fail to address Commission statements in the record that indicate that the word "primarily" was intended to differentiate between uranium 12

recovs at licensed nuclear fuel cycle facilities whose primary purpose is to process for source material content and secondary or side stream uranium recovery at other types of mineral recovery facilities (e.g., copper, molybdenum and phosphate) wherein uranium recovery is not theprimary purpose of the recovery facilities' processes.

IUC has suggested that this creates apresumption that when a uranium mill licensee is

• processing conventional or alternate feed materials and is extracting uranium (or reasonably .

expects to extract uranium) the licensee is processing primarily for its source material content.

I IUC understands concems about sham processing to merely attempt to change the legal I definition of a waste material, thus, the presumption, as with most presumptions under the law, is rebuttable, IUC's definition ofshamprocessing is when a licensee runs materials through the i

mill in an anempt to create 1 le.(2) by-product material without any expectation of, any effort to, i and does not actually recover any uranium. IUC further suggests that ifit is proper for other _

mineral recovery activities to have secondary purposes (such as a side-stream uranium recovery) why is the logic not equally applicable to a uranium mill licensee. A mill licensee's primary purpose is to process for source material content but it can have multiple secondary purposes including secondary or side stream mineral recovery of such things as tantalum, niobium or vanadium as has been the case at the White Mesa Mill. And why not other types of secondary ,

purposes such as a recycling fee, since recycling represents good public policy and all recycling ,

costs money.

Finally, the Staffpaper's description of the PO's order in the Umetco case and the Staffs apparent response _to it during the development of the alternate feed guidance represents a serious overreaction to the PO's decision. The PO does not require an economic test but rather suggests 13

as dicta , that it might be helpful. As a result, the PO's decision should never have had the impact that it apparently did.

In sum, the Staffs paper while interesting, is essentially out-dated and therefore, inadequate.

III. RECOMMENDATIONS ON WAYS TO IMPROVE THE EFFICIENCY OF NRC REGULATION AT IN SITU LEACH URANIUM RECOVERY FACILITIES.

I. Staff Paper In its discussion of the background of this Staff paper, the White Paper is cited with respect to its concems about NRC's jurisdiction over groundwater protection at ISL facilities as well as problems with Staff treatment of the discharge ofliquid effluent from such facilities. The Staff paper indicates that historically NRC has imposed conditions on ISL operators to ensure i groundwater quality is maintained during licensed activities and that actions are taken to ensure the restoration of groundwater quality before the license is terminated. The Staff paper discusses i

how a licensee must obtain underground injection control (UIC) permits from EPA or EPA-authorized states before uranium recovery operations can begin. The paper also notes that NRC routinely incorporates groundwater protection limits from a state's permitting program into i

specific license requirements and routinely accepts specific methodologies and guidance 5 developed by EPA for groundwater monitoring programs and well construction. See Staff paper at 2-3.

The Staff paper indicates that the industry's preferred approach is for NRC to determine that it does not have jurisdiction in the well field. The Staff paper, however, concludes:

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NRC's position on its authority and jurisdiction over ISL well fields is that NRC does have jurisdiction over groundwater in the wellfield.-

The paper reports that NRC's Office of General Counsel (OGC) has concluded that the Commission could exercise its discretion to rely on UIC permits and UIC oversight by EPA or EPA-authorized states for the protection of groundwater. NRC would still retain jurisdiction over the wellfield and groundwater under its AEA authority but would simply defer active 4

regulation to EPA or the states. OGC funher recommended that the Commission address this in an memorandum of understanding (MOU) with EPA and/or complete a rulemaking before changing the agency practice in order to provide an appropriate technical legal rationale for changing in its previous practices and guidance.

The Staff paper goes on to discuss its effluent disposal guidance and indicates that the Staff took a narrow view of the definition of Ile.(2) by-product material and differentiated between various waste waters generated during ISL operations on the basis of their origin and whether uranium was extracted for its source material content during that phase of the operation.

As a result, the Staff determined that waste generated during restoration activities would not be considered I le.(2) by-product material since they do not satisfy the definition. The Staff paper further states, however, that recognizing this distinction between waste waters has created a

)I potential conflict with the Commission's non-1le.(2) policy. In the past restoration and production wastes were commingled in radium settlement ponds and as a result, have been i

placed in 11e.(2) tailings piles. The distinction in the effluent guidance would require licensees to either separate the two-waste streams or be able to demonstrate with reasonable justification which waste stream waspredominant in any sludges generated. Thus, the Staff concludes that if the current interpretation is retained that any such commingled wastes put into 11(e)(2) piles 15

y prior to the adoption of the 11(c)(2) effluent guidelines would have to be grandfathered as 11e.(2) by-products / material.

The Staff Paper suggests several options:

(1). ' Continue the current policy, which the Staff suggests is essentially coequal to .

EPA's policy as expressed in its UIC regulations. Staffdoes, however, note that restoration sludges would be a radioactive waste that would be subject solely to state jurisdiction as NORM and possibly could generate a disposal problem.

(2) Treat all of the waste stream liquid effluent from both production and restoration operations as 11e.(2) byproduct material which would in some sense be consistent with certain past practices.

(3) Attach NRC jurisdiction at ISL facilities after the ion exchange ("IX") unit and focus NRC's regulatory oversight on radiation protection leaving oversight of both production and restoration bleed wastes to states as NORM. Again, the Staff raises some concems about the potential radiological impacts of such wastes by suggesting that if they were of the same volume as mill tailings they would pose the same potential hazards, however, they neglect to indicate that they are not remotely like uranium mill tailings and do not pose anything like the level of potential hazard.

The DPV's and the AHP discuss retention of authority over all effluent and, in particular, all production bleed since the production bleed comes after the IX column wherein uranium is extracted. One DPV suggests that groundwaters contaminated by processing are 1le.(2) material and notes that the current guidance raises questions about authority to require restoration if the restoration fluids are not lle.(2) by-product material. The DPV suggests that both waste production and restoration streams are the result of uranium extraction and, therefore, both should be considered Ile.(2) by-product material. The AHP raises the issue in a slightly different context by questioning whether the bleed is primarily for concentrating uranium or for protecting groundwater. Ifit is for concentrating uranium, then the contaminated waste water would be 11e.(2) by-product material. Thejoint DPV suggests that the Staff effluent quidance's assumption that restoration fluid does not satisfy the definition of I le.(2) by-product material has 16

no basis and is not explained and, further, suggests that the statement that Option two is more consistent with EPA's UIC regulations is incorrect.

2. NMA Comment.

The Staff paper on improving the efficiency of NRC regulation at ISL facilities is total'ly inadequate and fatally flawed in that it fails to consider the fact that NRC lacksjurisdiction over s

ISL wellfields. See NMA White Paper; Letter from Anthony Thompson to Malcolm Knapp (March 10,1994); Letter from Malcolm Knapp to Anthony Thompson (June 2,1994). The Staff paper merely states in conclusory fashion that NRC believes it hasjurisdiction without further explanation. This is a totally inadequate response to any kind of serious comment such as those '

provided by both the NMA White Paper and the letter from Anthony Thompson.

In essence, the Staff, DPV and AHP Papers are similarly flawed as they also do not i

address the full scope of the problem as delineated by the most current information. In effect, the Staff Paper starts on the 50 yard line and therefore, does not provide the full context in which the issue must be addressed. The Staff, DPV and AHP discussions are reasonably coherent if one assumes or accepts the NRu s initial assumption in assertingjurisdiction over ISL well fields that ISL mining is the functional equivalent of milling underground. For example, without making that basic assumption, the DPV's argument that all contamination is caused by the extraction of the uranium from the well field and, therefore, all fluids including restoration fluids I

would be 11e.(2) does not carry the same weight because if one assumes that it is mining in the i

well field the statement is incorrect.

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Conunission has no jurisdiction in the first place, changing the policy is no problem. Lack of I jurisdiction is something that cannot be cured any other way than by acknowledging it. j l

The Staff paper correctly reflects the kind ofproblems that the effluent guidance has  !

caused with respect to having to " grandfather" pre-existing shipments to 11e.(2) impoundments and having to develop thepredominance test with respect to facilities where fluids from

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l restoration and processing have been mixed.

j The abject failure of the Staffpaper to consider the NMA's assertion that ISL mining is not the functional equivalent of milling underground results in NRC ignoring important definitions in the AEA or in NRC regulations. First, NRC, and its predecessor the AEC, has no jurisdiction over source material until it is removed from its place in nature in accordance with the AEA. Second, licenses are not required for source material quantities that are considered unimportant by the Commission. Therefore, to the extent that uranium in an ISL mining operation has not reached the surface (i.e., removed from its place in nature) and has not reached a concentration of 0.05% or greater, it is not subject to NRC jurisdiction. The Staff Paper similarly fails to address the Commission's attempt to boot-strapjurisdiction over ISL wellfield operations by suggesting that its National Environmental Policy Act (NEPA) responsibilities, and the' potential groundwater impacts are so closely related to the surface uranium extraction l activities provide NRC with the authority and the responsibility to protect groundwater. As l NMA has pointed out in the White Paper relying on NEPA for some additional grant of jurisdiction to NRC is legally unsound. NEPA is a procedural statute and provides no grant of jurisdiction. The Commission maintained the same sort of posture with respect to its authority to l regulate uranium mill tailings after milling operations ceased but abandoned that in favor of l

18'

n-legislative definition that was subsequently created for NRC control over 11e.(2) by-product material.

The DPV's and AHP discuss the question of whether or not the production bleed should be considered 11e.(2) byproduct material because it comes into the process after the IX columns 1

where uranium is taken out of the mine water. That discussion may make some sense if one -

accepts the assumption that it is not mining that is going on in the wellfield, but rather milling. .

On the other hand, if one makes the assumption that it is mining, then the bleed becomes a part of the mining cycle by inhibiting the build-up of contaminants so that the mining activity can be as efficient as possible in the same way that in surface or underground mines waste material is and removed so that the focus of production activities can be on the ore. ISL mining brings in native groundwater from outside the mining zone to assist in this process. That water should be viewed similarly to water in underground uranium mines, which goes to the voids created by the mining activities and which then must be pumped from the mine and run through an IX facility and radium settlement pond before release under an NPDES permit.

The final DPV which includes the comments of two individuals, suggests that the Staff Paper's conclusion that the current altemative is more consistent with EPA UIC regulations is

~

not correct is itself absolutely and completely incorrect. The Staff paper is correct. The EPA UIC regulations do distinguish between process and restoration fluids. Process fluids cannot be released under an NPDES permit and restoration fluids can.

Finally, the suggestion that NRC defer to EPA regulations sir.ce it regularly accepts EPA authority (See also Preamble to Part 51 regarding accepting EPA determinations with respect to water assets under the Clean Water Act) and then to retain jurisdiction is a very poor 19

compromise that will lead to ongoing problems. The same kind of problems that the gerryrigging (i.e., predominance test) that was required to address the problems created by the effluent quidance has created. Retainingjurisdiction will be an open invitation to those who would object to a particular project to seek intervention from NRC as a result of alleged failures by EPA or EPA-authorized states. NRC should get out of wellfield regulation because it does not belong there under the AEA.

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20

1 Comments on Draft Rulemaking Plan for New 10 CFR Part 41: Domestic Licensing of Uranium and Thorium Recovery Facilities. (SECY-99-011, -012, and -013) l l

Agreement State Comments J Additions to the Existine Regulations i

1. Regulations for in situ leach facilities are necessary to codify acceptable standards for the {

operation and decommissioning of in situ facilities. .

We would agree with the position that NRC and its Agreement States should develop uranium rules which do not overlap with EPA's UIC program responsibilities, except that, environmental assessments would still address groundwater issues as needed in an overall evaluation of the impacts on human health and safety.

2. Addition of regulations for disposal of other material in tailings impoundments.

1 We would agree that alternate materials could be disposed in an 11e.(2) impoundment as long I as the material is similar chemically and physically to 11e.(2) and contains uranium and/or thorium. This seems to be acceptable because usually only small volumes are disposed and the monitoring established for tailings impoundments are band on background concentrations developed for uranium and/or thorium.

1 f

3. Criteria for construction of Ile.(2) byproduct material disposal cells.

Agree with proposal to update criteria for 11e.(2) disposal cells.

4. Regulations for processing alternate feed material.

We would agree that alternate feed material must (1) satisfy qualifications for an ore, (2) not contain any listed hazardous material, and (3) be processed for its source content.

5. Operational flexibility provision for permitting performance-based licensing. -

We do not agree in total. We would still want to review all changes proposed by a licensee. '

6. Requirement for standby trust.

We agree with this approach. For example, the State of Texas has the Radiation Perpetual Care Fund which accomplishes the function of a standby trust, whereby funds and security instruments held in that fund are readily available for use by the Texas Department of Health should the need arise.

Comments page 2  !

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7. Addition of general license provision for 11e.(2) byproduct material.

We do not agree. Possession of 11e.(2) material should still be fully licensed.

Deletions from the Existine Regulations

, 8. Deletions of prescriptive site and design requirements. .

l Any update of Appendix A should retain requirements for siting and prohibition of maintenance in the long-term design. Siting of 11e.(2) disposal cells should follow the kind of criteria set down for low-level waste disposal cells. Long-term performance for 11e.(2) waste cells ~should be based mostly on site characteristics and not be dependent on engineering features and maintenance.

Modifications and Clarifications to Existing Regulations

9. Clarify the meaning of 11e.(2) byproduct material as it relates to ISL uranium recovery facilities.

We would agree with the option that all liquid effluents in an ISL process should be considered as 11e.(2) material. ISL recovery operations are conducted by recirculating a flow oflixiviant '

fluid through an ore-bearing formation. Circulating lixiviant fluid is recharged with oxygen and bicarbonate, and stripped of uranium carbonate anions once per circuit. (Beneficiation begins when U" bound to the surface of the ore material is dissolved by oxidization to U" which then forms a carbonate anion complex in solution. Uranium carbonate anions are removed from the lixiviant by anion exchange.) As lixiviant leaves the ore formation, it carries dissolved uranium, uranium decay products, and other dissolved species to the surface.

Studges from this process which are accumula1ed in ho' ding ponds, contain radium and would be considered 11e.(2) material. Considerable amounts of radium mobilized during the source recovery stage remain dissolved in the circulating lixiviant even into the restoration phase.

Thus, circulating fluid in an ISL facility would contain 11e.(2) at all stages of the process.

Surface spills occuring anytime and anyplace during the entire process would be considered

. 11e.(2) waste.

10. Clarification of reporting requirements.

We agree that any claritication of a licensee's report requirements would benefit both the regulatory agency and the licensee.

11. Clarification of applicability of siting and design requirements for existing facilities.

We agree with the need to clarify siting and design requiements for existing facilities.

Comments page 3

- 12. Modification of annual surety requirements.

It appears that NRC meant."bient.ial" (once every two years) rather than " biannual" (twice per year). We would otherwise agree.

13. Update the long-term surveillance fee. Update fee from $250,000 in 1978 dollars to 1998 dollars. ,

We agree with the need for this update.

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STATE OF WYOMING OFFICE OF THE GOVERNOR JDI GERINGER '

GOVERNOR June 10,1999 STATE CAPITOL CHEYENNE. \W 82002 NRC Commissioners U.S. Nuclear Regulatory Commission 11545 Rockville Pike Rockville, MD 20852

Dear Commissioners:

On August 26,1998, the Nuclear Regulatory Commission (NRC) conducted a public meeting in Casper, Wyoming to solicit public comment on the NRC initiative to revise the regulatory framework for the licensing of uranium and thorium operations. This meeting was held in Casper as four of the in situ leach (ISL) mines and seven Title II mill sites regulated by the NRC are located in Wyoming. These operations, as well as the employment and the revenue they generate, are very important to Wyoming and the small conununities where the workers reside.

During the NRC August 1998 meeting, the Wyoming Department ofEnvironmental Quality (WDEQ) expressed strong belief that ISL wellfields were adequately regulated by the State of Wyoming. The WDEQ also indicated that proposed regulations being considered were duplicative with existing state regulations and therefore not needed.

The Wyoming Mining Association (WMA) stressed that proposed rulemaking to further involve NRC in the regulation ofISL wellfields was not needed since mining at ISL wellfields is ,

sufficiently regulated by existing EPA Underground Injection Control (UIC) regulations. In Wyoming the UIC regulations are administered by the (WDEQ) through the Wyoming ,

Environmental Quality Act and detailed WDEQ Land Quality Division (LQD) regulations which specifically regulate in situ mining.

With the continuing efforts by NRC to increase the regulation ofISL wellfields in the proposed Part 41 regulations, it is apparent that NRC has not accepted the input from the S' tate of Wyoming or the WMA. Moreover, it appears that the NRC is trying to impose even greater federal regulations and associated costs on an activity that has been, and will continue to be, adequately regulated by the State.

S I a  ;-l E-M AIL: governor 3 missc. state.ny.us WEB PAGE: www. state.ny.us 8y p' TELEPHONE: ( 30-) ~~~ 434 WW TDD: i30-) ~~~ 860 FAX: ( 30-) 032-3m n 4 M 1

NRC Commissioners Page 2 June 8,1999 I would, therefore, stress my concern that the continued dual jurisdiction ofISL wellfields j by the NRC causes an unneeded burden, not only to the companies involved, but also to the NRC itself and the WDEQ. One of the precepts of most environmental regulation is to allow the states ,

" to assume primacy of the program.. This precept recognizes inherent state sovereignty, allows the states to construct a program that best fits that state, and ensures the operator only has to answer to one,'all the while ensuring that federal program requirements are met. In this case, the State of '

o Wyoming has effectively regulated all aspects of uranium mining for decades without the involvement of the NRC.

I request that NRC relinquish alljurisdiction over ISL wellfields, as these mining operations are more than adequately regulated by the State.

We don't need duplication. The NRC, like many other agencies, has a very large workload.

How much more effective to focus those efforts on other areas needing attention than to duplicate efforts that are currently being handled by the State. Most importantly, removing the NRC from involvement in ISL wellfields will not adversely impact any emironmental or safety considerations of the mining process, as those concems are adequately covered by the State of Wyoming.

Best regards, ~

~^

s Jim Geringer Governor JG:DH:ct cc: Wyoming Congressional Delegation

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l Before the U.S. Nuclear Regulatory Commission COMMENTS ON THE NRC STAFF'S INITIATIVES ON URANIUM RECOVERY REGULATION Submitted by -

SOUTHWEST RESEARCH AND INFORMATION CENTER Prepared by Diane Curran, SRIC Counsel Harmon, Curran, Spielberg & Eisenberg, L.L.P.

1726 M Street N.W., Suite 600 Whshington, DC 20036 202-328-3500 Chris Shuey, Director Community Water, Wastes & Toxies Program Southwest Research and Information Center i P.O. Box 4524 I Albuquerque, NM 87106 505-346-1455

' i and j Johanna Matanich, SRIC Counsel .

New Mexico Environmental Law Center l' 1405 Luisa St., Suite 5 '

Santa Fe, NM 87505 505-989-9022 trC'D E! SECY June 17,1999 17 #39 7: 42 f

INTRODUCTION Southwest Research and Information Center ("SRIC") appreciates the opportunity to comment on the Nuclear Regulatory Commission ("NRC") Staff's memoranda conceming proposed changes in uranium recovery regulation. SRIC, through its Washington, D.C., counsel and Albuquerque-based staff, looks forward to summarizing and discussing its concerns about these initiatives before the Commission itself at the public meeting on June 17,1999.

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As the Commission is aware, SRIC, Eastern Navajo Din 6 Against Uranium Mining

("ENDAUM"), and two Navajo women, Ms. Grace Sam and Ms. Marilyn Morris, are intervenors ,

in an ongoing proceeding before the Atomic Safety and Licensing Board on the matter of the license issued to Hydro Resources, Inc. ("HRl"), for the Crownps a Uranium Project (" CUP").

SPJC will abide by the Commission's admonition to refrain from making oral or written remarks that refer to arguments now pending in that adjudication. We will use this opportunity, however, to highlight why we believe that the Staff's initiatives may reduce the level of health and environmental protection to which the affected public is entitled under the Atomic Energy Act

("AEA") of 1954, as amended by the Uranium Mill Tailings Radiation Control Act

("UMTRCA") of 1978. Hence, it is in the spirit of broad public debate over policies that are important for the protection of human health and the environment that we offer our comments on the Staff's proposals regarding uranium recovery policy and regulation.

SRIC'S INTERESTS AND HISTORY ON URANIUM MILLING ISSUES SRIC's staff has been closely and routinely involved in uranium mining and milling policy and tecimical issues for parts of three decades, beginning in the mid-1970s. SRIC was one of several public-interest organizations that campaigned for and championed passage of the UMTRCA - the first federal statute to authorize federal and state cleanup of abandoned, or

" inactive," mills and tailings sites, and licensing and regulation of " active" uranium mills and mill tailings facilities. SRIC also participated extensively in the initial NRC and USEPA rulemakings that implemented UMTRCA requirements, and was a co-plaintiff with other national environmental groups in federal-court appeals of some of the NRC mill licensing I ,

i i

regulations and the EPA' general environmental standards.

SRIC's interest then, as it is now, was to ensure that the public health and safety and the j environment were protected from the radiological and nonradiological hazards associated with I

uranium milling and tailing disposal. To that end, the organization worked closely with communities and community p,roups on site-specific uranium mining and milling concerns, providing technical advice and field-level assistance largely at the request oflocal groups. From

, this work, we developed isngs erm relationships with several Navajo communities adversely l affected by uranium waste mis nanagement, such as the July 1979 Church Rock tailings spill. -

These relationships continue to' this day, as evidenced by SRIC's partnership with ENDAUM in

' the adjudication of the HRI license.

OVERVIEW OF SRIC'S COMMENTS ON NRC STAFF.'S CURRENT URANIUM RECOVERY REGULATORY INITIATIVES In preparing these comments, SRIC's counsel and staff reviewed the following documents:

(1) NRC Staff. " Recommendations on Ways to Improve the Efficiency of NRC Regulation at In Situ Leach Uranium Recovery Facilities," SECY-99-013 (March 12,1999);

(2) NRC Staff. "Use of Uranium Mill Tailings Impoundments for the Disposal of Waste Other Than 11e.(2) Byproduct Material and Reviews of Applications to Process Material Other Than Natural Uranium Ores," SECY-99-012 (April 8, 1999);

(3) NRC Staff. " Draft Rulemaking Plan: Domestic Licensing Of Uranium and Thorium Recovery Facilities - Proposed New 10 CFR Part 41," SECY-99-11 l (January 15,1999); and

.(4) National Mining Association. " Recommendations for a Coordinated Approach to Regulating the Uranium Recovery Industry." (April 1998; hereafter referred to as "NMA White Paper".)

Based on these documents, and other relevant information, correspondence and memoranda, SRIC prepared comments that address the following issues: (1) the NRC'sjurisdiction over the 2

subsurface aspects of uranium ISL mining; (2) the lack of an adequate basis for delegating ground-water protection at ISL facilities to the EPA or to states and tribes with primacy to regulate solution mining pursuant tb: Underground Injection Control (".UIC") Class III program of the federal Safe Drinking Water Act ("SDWA") ; and (3) legal and policy problems with new 10 CFR Part 41 regulations now being considered by the NRC Staff, particularly the questionable legality ofperformance-based licensing ("PBL") and the proposed elimination of certain prescriptive siting and design requirements for uranium processing waste disposal ,

impoundments.

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At this time, SRIC recommends that the Commission not adopt either Option 2a or Option 2b, as those options are described in SECY-99-12. We are concerned th t much of impetus for the staff's initiatives in these areas to help solve the uranium industry's long-standing economic difficulties, without adequately addressing the impacts of these changes on public health and safety. This is particularly apparent with respect to the issues of NRC jurisdiction over ISL operations, PBL, alternate feed materials, and disposal of non-1 le.(2) wastes.

(1)- NRC HAS AUTHORITY TO REGULATE SUBSURFACE OPERATIONS AT URANIUM ISL FACILITIES l

SRIC agrees with and has long supported the Commission's authority to regulate ground- l water protection at uranium ISL facilities. The Mining Association, however, asserts that NRC does not have authority under the AEA to regulate ground water at ISL sites. See. April 1998 White Paper at 104-113. Having reviewed the Mining Association's discussion of this matter, J we conclude that the Association isjust plain wrong. As we discuss below,its analysis suffers -

from a fundamental error about the point at which source material, i.e., uranium, is removed from .

its place of deposit in nature.

First, our reading of the NRC Part 40 regulations indicates that they contain a three-step approach to determining if a uranium recovery activity is covered by the licensing requirements of Part 40 or is exempt from them. The first step is to determine if the material is " source material," i.e., does it contain a uranium concentration of 0.05 percent or greater? If the answer 3

is "yes," then the second step is to determine if the source material is removed from its place in nature. If the answer is "yes," then the third step is to determine where the material is being

" refined or processed?" Sgg,10 CFR A0.13(b); If the answer is "yes," then the activity is not exempt and is subject to the Part 40 licensing requirements.

With respect to uranium ISL operations, the answers to each of these steps is "yes," and each of the steps is accomplished underground. With regard to the first step, virtually all

, uranium host rocks, including those at ISL mines, have uranium concentrations exceeding .

0.05%.' Hence, the answer to Step 1 is "yes." ~

In the ISL process, water fortified with oxygenates (called "lixiviant") is circulated through the uranium ore host rocks. The effect of the circulation of the lixiviant is to strip the 1

uranium from the host rock thereby causing it to become dissolved in the ground-water /lixiviant solution.2 The resulting uranium concentration in the " pregnant" lixiviant is typically several i

orders of magnitude higher than the baseline uranium concentration in the native ground water.3 '

Seg, Attachments 1,2 and 3. Since the leaching process removes the uraniumfrom itsplace of deposit in nature, its host rock, the answer to the second step is "yes." In this regard, the Mining Association's conclusion that "the ore is not removed from its place of deposit in nature until it

' Average ore grades for several uranium deposits mined by the ISL method in Wyoming and Texas ranged from 0.08% to 0.2%. Sge, W.C. Larson, " Uranium In Situ Leach Mining in the United States," U.S. Bureau ofMines Information Circular 8777 (1977), Appendix B at 54-65. The Church

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Rock, N.M., ore grade at a site proposed for ISL mining is reported as 0.202%. Se.g, also, Hydro Resources,Inc., Church Rock Environmental Report (April 1988)(ACN 8805200344), Figure 6.6-2 at 363.

2Gunn, J., Layton,M., Park, J. In-Situ Leach Uranium Mining (October 1988) at 4. Attached to SECY-99-013 (March 12,1999) as Attachment 1.

• 3 Sgs, Tables 2.1 at 3.12 of NUREG-1508, Final Environmental Impact Statement to Construct and Operate the Crownpoint Uranium Solution Mining Project, McKinley County, New Mexico (February 1997), at 2-6 and 3-26, respectively (attached to these comments as Attaclunents 1 and 2). Compare, for instance, the anticipated chemical concentrations in HRI's pregnant lixiviant with baseline chemical and radiological characteristics of water from the Crownpoint, New Mexico, municipal wells, which tap the same aquifer that would be leach mined. Seg, also, Attachment 3 to

- these comments, which shows a direct comparison of pregnant lixiviant concentrations to baseline water quality.

4

- reaches the surface" (White Paper at 106) is clearly erroneous.

Finally, as can be seen from the discussion above, processing of the source material begins in the ground water. Part 40.13(b) uses the terms " refine and process" to determine if an activity is exempt or not.* The dictionary definition of the verb infinitive "to process" is "to prepare, treat or convert by subjecting to some special process; to put through the steps of a proscribed procedure." Similarly, the definition of the verb infinitive "to refine" is "to reduce to a pure state; purify." Lixiviant injection mobilizes uranium, separating it from the host rock and .

increasing its concentration in the ground water - physical and chemical processes that clearly connote processirig and refiming of the source material. Hence, the answer to the third step niso is "yes." Accordingly, uranium ISL mining is not exempt from the regulations, and NRC has authority to regulate it.

l SRIC believes, therefore, that NRC was correct in the early 1980s when it concluded that itsjurisdiction to regulate uranium recovery extended to the subsurface in ISL mines because removal and processing occur in the ground water, and that this finding is not inconsistent with its determination that underground and open-pit mining are not subject to the licensing requirements of Part 40. In conventional underground and open pit mining, the uranium is not removed from its host rock until the rock is transported from the mine to the mill for crushing, grinding, and the addition ofleaching acids and chemicals. This is distinguished clearly by the ISL process of using lixiviant to strip, or remove, the uranium from its host rock in the  !

subsurface hydrologic environment.

i (2) DELEGATION OF ISL GROUND-WATER REGULATION TO EPA OR THE STATES / TRIBES IS NOT JUSTIFIED .

The NRC Staffis recommending that NRC remove itself"from the review of ground- s water protection issues at ISL facilities" and instead " rely on the EPA UIC program" to protect ground water at ISL sites. SECY-99-013 at 10. The Staff's position appears to be based partly

'The term " beneficiation," which the Mining Association cites so liberally in its White Paper, does not appear in the NRC regulation.

5

3 on an Office of General Counsel ("OGC") opinion5that such delegation, without loss of '

authority, would be appropriate to address the dual regulation concerns of the industry. S.ee, e SECY-99-013 at 3. This position, therefore, seems to rest largely on addressing industry's

. concerns, rather than on an analysis f whether it is appropriate, as a policy r' natter, for NRC to declaim jurisdiction that it has expressed and exercised for the last 20-plus years, or whether the EPA and state or tribal UIC programs are fully applicable to the wide range of ground-water

_, protection issues that are intrinsic to uranium ISL operations.'

The NRC Staff has not provided a clear or convincing basis for its proposal to delegate ground-water protection regulation to EPA or to EPA-authorized states or tribes. None of the SECY papers we have reviewed contains a comparison between the ground-water protection -

requirements of NRC and those of EPA or authorized states or tribes pursuant to the UIC Class III program to evaluate the Mining Association's claims of regulatory duplication. Neither the NRC Staffnor the Commission has determined that NRC's responsibilities under the AEA to protect public health and safety and the environment from the use of radioactive materials will be fulfilled by delegating ground-water protection solely to EPA and the states or tribes. As a practical matter, any such determination by the Commission would need to evaluate state UIC i

requirements because EPA does not, at least at this time, directly permit any uranium ISL mine under its own UIC requirements since all existing ISL facilities are located in UIC-primacy '

states. .,

Implicit in the Siaff's discussion of the OGC opinion is the notion that NRC would retain regulatory authority over ground water at ISL facilities, but not exercise it, regardless of whether EPA or a state or tribe with UIC primacy would. Retaining authority without exercising it '

, ' exposes the agency to legal challenge by the public.

a Delegating ground-water protection authority to EPA would certainly create at least one gap in the regulatory program. EPA does not have a uranium-in-drinking water standard, even -

though it proposed one in 1991. States which now regulate uranium ISL facilities pursuant to 5We cannot comment at this time about the substance of the OGC opinion because it was not attached to the March 12 memorandum and we have not yet obtained a copy ofit to review.

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their state-level UIC programs have differing uranium restoration standards, and none of them i are based on drinking water protection. In New Mexico, for instance, the uranium restoration standard would be 5 milligrams per liter ("mg/l"), based on the state's Water Quality Control .

i Commission standards forprotection ofground water.* 20 NMAC 3103. S!milarly, we do not view NRC's use ofits 10 CFR Part 20 Appendix B uranium-in-water effluent standard as appropriate to protect drinking water. Whatever the level, NRC ought to be satisfied that there is an appropriate restoration standard for uranium before delegating its authority. .

Furthermore, there is no evidence in the relevant SECY papers that NRC has had agency-

~

to-agency contact with EPA about delegating ground-water protection responsibilities for uranium ISL mines. Until this week, we could find no one at EPA in either Region IX or at headquarters who had been consulted by the NRC Staff about this matter, or who knew that NRC was even considering removing itself from ISL ground-water regulation. Interagency communication must take place at the highest levels of the agencies, and in consultation with the affected states and tribes, before such a fundamental change in the current regulatory structure is made.

(3) ADVISABILITY OF PROCEEDING WITH A NEW 10 CFR PART 41 The Staff enunciated three options for addressing uranium recovering regulations in the "Rulemaking Plan" attached to SECY-9M11 (January 15,1999). The Staff also listed several specific proposed changes, deletions and cladfications to existing NRC regulations in Attachment I to the January Rulemaking Plan. The purpose of the proposed rulemaking would be to " codify the numerous regu!cory decisions and precedents that have been developed [for]..

ISL facility regulation" through reliance on guidance documents and license conditions. SECY- - '99-011 at 2.

i SRIC agrees that the nature of the domestic uranium recovery industry has changed

'SRIC's view is that the New Mexico WQCC's uranium value is an extraordinarily high level  !

that is not protective of public health or the environmern, especially when the native ground water concentration ranges from 0.001 mg/l to 0.02 mg/1, or 250 to 5,000 times the less than the uranium standard.

7 l

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' markedly since the Part 40 Appendix A licensing requirements were adopted in the early and mid-1980s. Creating a new Part 41 to address ISL operations is not, by itself, a bad idea to address the need to clarify and consolidate requirements applicable specifically to ISL operations. However, several of the proposed caanges listed in Attachment 'l to SECY-99-011 appear to be oriented toward relaxing or even eliminating certain requirements, based almost exclusively on the uranium industry's stated desire for extensive regulatory flexibility, and in some case, even deregulation. Additionally, the Staff's options for removing NRC regulation of certain ISL waste streams, as set forth in SECY-99-013 (at 9), could make ISL regulation even more unwieldy by causing it to be divided potentially among three different governmental units:

the NRC, the EPA and states or tribes with their own regulations governing effluent dispoal.

l On whole, SRIC is concerned that the Staff's proposed changes are ill-conceived and will have 3

i the net effect of decreasing protection of public health and safety and the environment.

J r In the sections below, we discuss our concems about four of the proposed rulemaking issues: (a) operational flexibility; (b) deletion of certain " prescriptive" siting and design ,

requirements; (c) disposal ofliquid effluents from ISL operations; and (d) development of uniform spill-reperting requirements. Because ofthe short time we have had to prepare these 1

comments, we are not commenting at this time on two other important matters: disposal of non-11e.(2) byproduct material in licensed tailings impoundments and use of alternate feed material in licensed uranium mills. SRIC reserves its right to comment on those matters at a later date.

.(a) Issue 5: Operational Flexibility i We fear that the centerpiece of the Staff's initiative to create a new 10 CFR Part 41 is to 7 codify deregulation of the uranium ISL industry through performance based licensing ("PBL"), I

! disguised as " operational flexibility." Sm, SECY-99-011, Attachment I at A-2 to A-3. While we cannot discuss those aspects of PBL that we think are illegal because the matter is currently on appeal in the HRI license adjudication, we urge the Commission to consider the legal and policy 4 L problems inherent in PBL.

Performance-based licensing in effect turns over to the operators fundamental regulatory

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l l decisions left more appropriately to the regulatory agency. Operators can change the scope of their ISL operations unilaterally, without agency oversight or approval and outside of the scope ofpublic review and comment. The extent to which any change in an operation violates an NRC requirement or a license condition can be determined only upon the agency's inspection of documents and reports prepared by the licensee and maintained at the licensee's mining site.

Hence, active " regulation" of uranium recovery is replaced by discretionary enforcement. Since, under most current PBL licenses, operators are required only to file an annual report with the NRC, the public is blind to the operator's decisions to change the project for up to a year after they were made. '

SRIC is particularly concerned that operators will change numerical restoration standards upon their own, internal finding that such changes will not adversely affect public health and safety, or the environment. Such changes will not be known to the agency until long after they are made, and not known to the local communities whose ground water could be affected adversely for many years as a result of such changes.

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(b) Issue 8: Deletion of1%criptive Siting and Design Requirements I I

The Staffproposes to eliminate certain siting and design requirements that, with the i exception of mentioning Criterion 4 of Appendix A, are largely unspecified in Attachment I to j

SECY-99-011 (at A-4). SRIC fears that the Staff may be proposing to eliminate the essential surface impoundment design criteria in Criterion 5, the cover requirements of Criterion 6, and the monitoring requirements of Criterion 7. The regulations incorporated in Criteria 5 and 7 were adopted to prevent and detect ground-water contamination at tailings impoundments, while requirements in Criterion 6_were adopted to ensure long-term stabilization and control of tailings.

• i i

Both were adopted in compliance with the generally applicable environmental standards t i

promtilgated by EPA in 40 CFR Part 192, Subparts D and E, which were based on RCRA-level design standards for hazardous waste impoundments. The NRC mill licensing criteria and the EPA general standards were authorized by the original UMTRCA in 1978 and by its amendments in 1982.

To relax these requirements for surface impoundments at uranium ISL sites would strike 9

at the heart of the Mill Tailings Act's intent to prevent new ground-water contamination from tailings and to prevent dispersion of tailings through water and wind erosion and human disruption. While surface impoundments at ISL sites are necessarily smaller than those at conventional mills, they have the same potential for leakage if not designed and maintained properly.

As set forth in Attachment 1 (at A-4), the Staff's proposal for eliminating siting and

,  : design requirements appears oriented toward expanding the universe of PBL-eligible actions that licensees may take. Ultimately, however, the Staff's proposals must be consistent with requirements of the AEA, as amended by UMTRCA. Eliminating design and cover requirements, or relegating them to PBL status, may be inconsistent with the agency's statutory

._ mandates under the AEA and UMTRCA.

(c) Issue 1: Regulations for ISL Facilities-Liquid Waste Disposal In SECY-99-013 (at 9-10), the Staff proposes to divorce NRC of regulating waste waters generated by production bleed and restoration operations at ISL facilities. SRIC assumes that this proposal, along with the Staff's stated intention to delegate regulation of ground water at ISL

- sites, is part and parcel ofits desire to craft a new Part 41 for ISL operations. Unfortunately, the

. Staff's liquid waste proposal makes no sense technically or administratively.

From a technical perspective, production bleed and restoration waste waters are so L

intrinsically connected with the processing of source material, i.e., uranium, that they should be regulated as byproduct material as defined in section 11e.(2) of the AEA. Production bleed

- waters would not be generated if the ISL operation were not in place. Production bleed effluents

.- are the un-reinjected waste liquids necessarily generated by ISL mines to maintain lixiviant l

7 control They also are likely to contain elevated concentrations of both radiological and nonradiological contaminants, with or without treatment prior to disposal.

Restoration waste waters almost always have high contaminant levels at the outset of.

l restoration when contaminant levels remain high in the mined-out ore zones. These high levels

.would not be present in the ground water had the site not been subject to uranium ISL mining.

Hence, the removal of the source material from the rock directly resulted in contamination of the 10 1

L j

ground water in the ore zone.

Neither does the Staff's proposal on regulation ofISL liquid waste streams make sense

, from an administrative perspective. fise SECY-99-013 at 9-10. If the full breadth of the Staff's proposals are adopted, three diferent federal or state (or tribal) agencies would have authority

)

over various liquid waste streams and mining operations at ISL facilities. For instance, NRC I would regulate the surfaceprocessingfacilities at the ISL plant; EPA or a state or tribal UIC-primacy agency would regulate the UIC Class III wells, wellfields and ground-water protection; .

and EPA or a state or tribal agency would regulate disposal of production bleed wastes and restoration wastes under various federal, state or tribal environmental authorities. This situation cannot possibly be seen as streamlining regulation or facilitating operator compliance. And it would be a total nightmare for communities and local groups wanting to participate in regulatory decisions affecting permitting or licensing of the facilities themselves.

These and other technical and policy points were made convincingly by Mr. William Ford in his Differing Professional Views appended to SECY-99-013. SRIC urges the Commission to give great weight to these views in its consideration of tilis issue.

-(d) Issue 10: Need for Uniform Spill and Release Reporting Requirements SRIC concurs with the Staff's concerns about the lack of spill and release reporting requirements in 10 CFR Part 40, the lack of uniform and consistent data and information about spills and releases, and the potential for serious contamination ofland, water and air by nonradiological pollutants released from licensed facilities. Spills of pregnant lixiviant, process waste waters and restoration waste waters are well documented at various ISL sites in Texas.7 Hence, we support NRC's proposal to develop spill reporting requirements and to incorporate '

those requirements into the existing Part 40 program. We recommend that they be fully t applicable to ISL facilities and achieve, to the extent practicable, compatibility with spill reporting requirements adopted by EPA under authority of the Clean Water Act's National i

7SRIC intends to. submit for the record in the near future data and information documenting the spills at various ISL sites in Texas.

I1 1

6

1 Pollutant Discharge Elimination System (" NPDES").

CONCLUSIONS AND CLOSING COMMENTS SRIC is not convinced that the staffis ready to proceed with the ruler'naking proposed in <

SECY-99-011. Its proposals to C ' legate certain existing regulatory authorities are ill-conceived and possibly illegal, and seem aimed primarily at addressing the needs of the regulated community first, and addressing protection of public health and safety and the environment secondarily. Minimally, the Commission should defer action on the Staff's proposals today and direct the Staff to develop a more thorough basis and explanation for its initiatives. Especially important in this regard is the extent to which delegating authority for ground-water protection to EPA or the states or tribes will create gaps in regulation that do not now exist.

Finally, we were displeased with the way the agency notified SRIC of today's meeting.

Neither SRIC, ENDAUM, Ms. Sam, Ms. Morris or any of their counsel received letters directly from the Commission Secretary. Rather, copies of the May 27,1999, letters sent to the Department of Energy, the Mining Association and the states of Utah and Texas were forward to i

us via the service list specific to the HRI license adjudication. Those copies did not reach SRIC's Albuquerque office until June 3. On June 9, SRIC's counsel sent a letter to the Commission Secretary requesting time on today's agenda. We were not notified until Monday of this week (June 14) that SRIC would be permitted to address the Commission.

This indirect and impersonal method of notification was untoward in light of the fact that representatives and SRIC and ENDAUM, and their counsel, appeared at the August 25,1998, public meeting sponsored by the NRC Uranium Recovery Branch and expressed their concerns I about NRC's consideration of wide-ranging changes in the way it regulates ISL facilities. That

, SRIC was not directly informed was even more curious considering its 20-plus years of involvement in national and state-level uranium recovery policy and regulation.

In the future, we request advanced, direct notification of all meetings - formal and informal- on uranium recovery regulatory policy. (Our various addresses appear on the cover of these comments.) This includes meetings not only before the Commission, but also meetings 12

1 1

I between the Uranium Recovery Branch staff and uranium licensees.8 SRIC also requests that it

)

l be kept informed by the NRC Staff ofits progress in going forward with the regulatory initiatives I

l discussed today.

Again, SRIC appreciates the opportunity to comment in writing and before the l Commission on these important matters.

l l

l t

8We are aware that the Staffmeets regularly with licensees in Wyoming to discuss regulatory issues While SRIC staffcannot afford to travel to many of those meetings, we want to be infonned that they are scheduled in the event that we determine that it is necessary to attend.

13 l

06/16/99 16:30 HARMON. CURRAN. SPI + 13014151672 NO.331 G02 l l

1 "q__m hasuche me premesadAeden Tabis 2.1. Anticipated concentrations of principal chemical species in HRI's pregnant fixivient from the well fields for processing IData are from HRi 1993a, test data, and operational licensing experience.1 Chemical species _

' Concentration (ms/LI l Calcina: 100-350 W _

10-50 Sodmm 500-1600 Potassima 25-250

• Carbonate 0-500 1

Becarbosaec 800-1500 Sulfate 100-1200 Chlorule 250-1800 Nitrase

<0.01-0.2 Fluoride 0.05-1 Silica 25-50 Total shssolved solids 1500-5500 Umnium 50-250 Radium-226 (pCi/L) 1000 Other parameters Conductivity Onnhos/cm) 2500-7500 JH (standard units) -

7.0-9.0 Table 2.2, Principal chemical reactions taking place in the ore body during uranium oxidation (1) 2UO 2 + 03 -- > 2UO3 (2a) UO + Naa CO 3 3 + 2NaHCO 3 -- > UO (CO 3 3)/ + 4Na* H 0 (2b) UO + 2NaHCO,-- > UOJCO3)38 + 2Na* + H1 0 i

HM would pump uranium ennched pregnant solution from prd& wells to the processing plants '

for uranium extraction by ion exchange. The resulting barren liaiviant would then be chemically refortified and reinjected into the well field to repeat the teaching cycle. '

HU anticipates using production flow rates of 9500 to 11,500 Lpm (2500 to 3000 gpm) at each ion exchange plant. Potential enussions at each plant were conservatively modeled assuming a maximum flow rate of 15,000 Lpm (4000 gpm). and HR1 would be restncted from exceedung this rate by license condition. Maximum injection pressures to be used in each of the mine areas would be determmed when the operating wells are completed. The approximate values of allowable surface (well head) pressures for each area are 2075 kPa (301 psi) at the Crownpoint and Unit I sites and 807 kPa (117 psi) at the Church Rock site (HR1 1996a). During normal operations, production rates would be NMEG 1500 2-6 ATTACHMENT 1

06/16/99 16:30 HARf10N. CURRAN. SPI + 13014151672 NO.331 G03 Assereer s,.eemment

. Table 3.12. Town of Crownpoint water cluality data' woo NTUA4 EPA fond NNEPA)

Well NTUA 2 Wells BIA 5&g - wen SIA4 drinking water Paremsy kng&1 ImgJLI img/U Img/LI standards bugAl Calaman 5.0 1.3 9.2 1.8 hiassonnen 2.0~ 0.00 -

4.5 0.14 Eadnan 131.0 121.0 119.0 1I1.0 Petusunus 4.9 1.2 2.3 1.7 Carbonase 17.0 20.0 1.0 8.0 Bicarteneae 234.0 221.0 249.0 223.0 Sulfste R2.0 32.0 98.0 49.0 250.0 Chiande 7.7 3.2 3.2 2.0 250.0 Etrale 0.01 0.02 0.02 0.01 10.0 Flowide 1,1 0.32 0.34 0.27 4.0 or 2.0 Silica 10.0 18.0 20.0 18.0 7DS 402.0 351.0 406.0, 325.0 500.0 Cendustivity' 625.0 529.0 603.0 454.0 Alkshaity 220.0 215.0 206.0 197.0 pH' 3.79 8.9) 8.33 8.7 6.5-8.5 Armuuc <0.001 4 001 4 001 <0.001 0.05 Bariuss 0.02 0.05 0.05 0.06 2.0 Cadmmun 0.0002 <0.0001 <0.0001 <0.001 0.01 Chnunhan 4 01 <0.01 <0.01 4 01 i

0.05 Capper <0.01 <0.01 <0.01 <0.01 1.0 tree 0.02 4 01 0.01 4 01 0.3 Imd 4 001 0.002 4 001 4 001 Wr 0.01 0.01 41 <0.01 0.05 0.05 Martury <0.0001 4 0001 <0.0001 <0.0001 0.002 Molytuleman 4 01 4 01 <0.01 4 01 Mckel 40.01 <0.01 <0.01 4 01 0.1 Selenissa 4 001 <0.001 4 001 <0.001

• 0.05 Silver <0.01 <0 01 4 01 <0.01 0.1 Uranitum <0.001 <0.001 0.001 <0 001 J

Vanadiusn 4 01 <0.01 <0.01 <0.01 l Zinc 0.01 0.01 <0 01 <0.01 5.0 Ilaron  !

0.05 0.06 0.07 U.05 Amunenes <0.01 <0.01 <0 01 <0.01 Radium.226' O6 0.3 0.6 0.3 5.0

" Dean esMastse Septanker 1990 (HRJ 1994

%mhawas -

' Units

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