DRC-2013-002801 - 0901a068803a2c0b

Energy Fuels Resources (USA) Inc.
225 Union Blvd. Suite 600
Lakewood, CO, US, 80228
303 974 2140
002801" www.energvfuels.com
July 26, 2013
VIA EMAIL AND OVERNIGHT DELIVERY
Mr. Rusty Lundberg
Director
Division of Radiation Control
Utah Department of Environmental Quality
195 North 1950 West
P.O. Box 144850
Salt Lake City, UT 84114-4820
Re: Follow-up to Utah Division of Radiation Control ("DRC") on Discussion Regarding
Concentration and Purification of Yellowcake Received from Honeywell
Dear Mr. Lundberg:
This letter is a follow-up to discussions during Energy Fuels Resources (USA) Inc.'s ("EFRI's") meeting with
DRC staff on October 17, 2012 and subsequent telephone discussion with John Hultquist on June 6, 2013
regarding concentration and purification of yellowcake (the "Honeywell Yellowcake"), that is adhered to drum
shreds, from Honeywell Inc.'s ("Honeywell's") Metropolis, Dlinois works (the "Metropolis Works") at the
White Mesa Mill (the "Mill").
Under the proposed transaction, Honeywell will transfer the Honeywell Yellowcake to the Mill under 10 CFR
40.51, and the Mill will receive the Honeywell Yellowcake under its existing Radioactive Materials License No
UT 1900479 (the "Mill License") as a "licensee-to-licensee" transfer of source material. This will in substance
be no different from the receipt of yellowcake in drums. The only difference is that the drums have been
shredded. The Honeywell Yellowcake will then be concentrated and purified by removing the yellowcake from
the drum shreds, and adjusting the moisture content and physical form, to produce a yellowcake product that
meets commercial specifications for introduction into the conversion process at a conversion facility. In order
to achieve this, the Honeywell Yellowcake will be separated from the drum shreds in a sulfuric acid bath and
the resulting solutions will be introduced into the Mill process, where the yellowcake will be concentrated and
precipitated, dried and then packaged as yellowcake product. The resulting tailings, including the drum shreds,
will be disposed of in the Mill's tailings cells as 1 le.(2) byproduct material. The steps and processes involved
in separating the yellowcake from the shreds, putting the yellowcake into solution, and precipitating, drying and
packaging the yellowcake will be no different from the steps that could be taken by the Mill to separate any of
its own hardened packaged yellowcake from drums and disposing of any damaged drums in the Mill's tailings
cells.
As previously discussed, EFRI has determined that the Honeywell Yellowcake consists of the same yellowcake
product as produced by EFRI at the Mill, and in fact, may include yellowcake produced in the past at the Mill.
Our most recent information from Honeywell, as summarized in our discussion with Mr. Hultquist on June 6,
ENERGY FUELS "DRC-2013-
)C3 ' Received
2013 ^. JUL
Division
Control Radiation
S.7
N:\WMM\Alternate Feeds\Honeywell Converdyne\Drum Shreds approval process\Lr. to R. Lundberg re Honeywell Yellowcake 7.25.13.docx
Letter to R. Lundberg
July 26, 2013
Page 2 of 7
2013, confirms that the Honeywell Yellowcake has never been combined with, nor contains, any other materials
or constituents. Detailed information supporting the description presented to Mr. Hultquist during the June 6,
2013 telephone call is provided below.
Honeywell proposes to ship approximately 4,800 overpack-sized drums containing approximately 200,000
pounds of Honeywell Yellowcake attached to 800,000 pounds of shredded drum pieces produced as discussed
below. Based on the information below, EFRI believes that the Honeywell Yellowcake can be separated from
the shreds at the Mill just as any other encrusted yellowcake could be separated from drums at the Mill. The
drum shreds would then be disposed of in the Mill's tailings cells in the same manner as any other discarded
drum. The overpacks would either be returned to Honeywell, or re-used by the Mill, or if not fit for re-use,
disposed of in the Mill's tailing cells like any other non-reusable overpack.
Honeywell Yellowcake History
The details provided below confirm that the Honeywell Yellowcake has not been commingled with any other
material or constituents.
The Metropolis Works has received yellowcake drums from uranium milling operations in the US from 1958 to
1964 and from the US and abroad since 1968. Yellowcake received at the Metropolis Works is converted to
uranium hexafluoride and shipped to other facilities in the nuclear fuel cycle for enrichment and then
fabrication into reactor fuel.
The Metropolis Works opens and samples each yellowcake drum for assay and characterization to confirm that
the contents comply with Honeywell's contract requirements for yellowcake from each supplier. Each drum
remains open for no more than a few minutes at the time of initial sampling. Drums which meet the contract
requirements are inventoried and remain closed until they are scheduled to be processed in the Metropolis
Works conversion plant.
The Metropolis Works received approximately 15,000 drums over the past 25-year period, which have not been
processed in the conversion plant. Each of the 15,000 drums (as well as all other yellowcake feed drums
accepted at the Metropolis Works):
• was opened once for assay and composition analysis;
• had an assay and composition which met Honeywell's acceptance contract criteria at the time of
receipt; that is, contained only yellowcake;
• remained closed awaiting processing in the conversion plant; and
• was opened and inspected prior to anticipated processing.
Honeywell determined that for each of these 15,000 drums, the drummed yellowcake contents had, over the
period the drum was inventoried awaiting processing, absorbed moisture through its drum lid. The moistened
yellowcake hardened within the drums and could no longer be removed by conventional drum emptying
equipment. Each of the drums containing hardened yellowcake was relabeled as "hard ore." It should be noted
that each drum of "hard ore" remained within Honeywell's inventory of yellowcake because it contained only
yellowcake, and retained its uranium value as potential feed to Honeywell's conversion facility. However,
since the drums could not be emptied, the contents could not be processed.
2
Letter to R. Lundberg
July 26, 2013
Page 3 of 7
Preparation of Drum Shreds
In 2012 and 2013, in an attempt to remove the hardened yellowcake that could not be directly emptied from the
15,000 drums identified as "hard ore", Honeywell installed mechanical equipment at the Metropolis Works to
shred the drums and recover the majority of the contained uranium value in the hardened yellowcake.
Each "hard ore" drum was opened and put through a mechanical shredder, which shredded the drums and the
hardened yellowcake in the drums. No chemicals or reagents of any type were used in the shredding process.
The portion of the hardened yellowcake which was not freed by the shredding remained attached to the
shredded drum pieces. The shredded yellowcake pieces, together with the yellowcake-encrusted shredded drum
pieces, were transferred on a conveyor belt to a separation step which mechanically separated the encrusted
drum pieces from the shredded yellowcake pieces. The resulting freed yellowcake pieces were repackaged in
overpack-sized drums, for introduction into the process at the Metropolis Works. The remaining hardened
yellowcake encrusted on the drum shreds comprises the Honeywell Yellowcake. The Honeywell Yellowcake
was repackaged in overpack-sized drums, and is intended for transfer to the Mill under 10 CFR 40.51(5).
At the current time, all the "hard ore" at the Metropolis Works has been handled in this manner. This produced
approximately 17,000 drums of shredded/pulverized hardened yellowcake (due to expansion during shredding)
and approximately 4,800 drums of hardened yellowcake adhered to drum shreds (due to expansion during
shredding). The hardened yellowcake attached to the drums was identical to the hardened yellowcake freed and
packaged separately and ultimately introduced, or to be introduced, as yellowcake into the process at the
Metropolis Works.
Honeywell will process at the Metropolis Works the 17,000 drums of hardened yellowcake freed from the
shreds along with its other yellowcake inventory. Honeywell plans to ship approximately 4,800 drums of the
remaining Honeywell Yellowcake, along with the associated shreds to EFRI at the Mill as a licensee-to-licensee
transfer of source material under 10 CFR 40.51 and the Mill License. The Mill will then separate the
Honeywell Yellowcake from the drum shreds and concentrate and purify the separated yellowcake into
commercial yellowcake product. The Honeywell Yellowcake to be transferred to the Mill has been very well
characterized as discussed with Mr. Hultquist and detailed below.
Drum Characterization Data
Honeywell performed sampling and characterization of the yellowcake resulting from the shredding process as
follows. The characterization is representative of both the shredded hardened yellowcake and the Honeywell
Yellowcake attached to the shredded drums.
As the Honeywell Yellowcake was separated from shredded pulverized hardened yellowcake on the conveyor
belt, a sample was collected. Samples were collected from 9,408 (over 55%) of the drums of recovered
hardened yellowcake. Samples from each of the 48 drums were composited into one lot. A total of 196
samples/lots representing 9,408 drums of hardened yellowcake were analyzed for every constituent in
Honeywell's feed acceptance criteria table. Data from the analyses are summarized in the attached Table 1.
The data indicate that:
• the Honeywell Yellowcake consists solely of natural uranium ore concentrates (yellowcake only), and
3
Letter to R. Lundberg
July 26,2013
Page 4 of 7
• the yellowcake is within the specifications of Honeywell's feed acceptance criteria (other than the
moisture content which contributed to the hardening of the yellowcake, the hardened physical form and
the associated drum shreds).
The drum shreds are the same composition as the drums received and disposed of at the Mill on a regular basis.
Regulatory Considerations
EFRI has considered the following in making its determination and conclusions discussed below.
Transport
USDOT regulations and existing procedures already regulate the shipment of Honeywell Yellowcake between
the Mill and the Metropolis Works. The number of trucks associated with transporting the Honeywell
Yellowcake to the Mill will be far fewer (140 times fewer) than the number of trucks required to transport the
quantity of ore needed to produce the same mass of yellowcake. The number of trucks required to transport the
resulting separated, precipitated, dried and packaged yellowcake to and from the Mill would be the same as
required to transport yellowcake produced from processing natural ores or any other feed at the Mill.
Receipt
The first paragraph and Conditions 6, 7, and 8 of the Mill License allow EFRI to "transfer, receive, possess and
use" "natural uranium" "in any form" with "no maximum quantity limit". Receipt of the Honeywell
Yellowcake, along with the associated drum shreds, would be a licensee-to-licensee transfer of source material
to the Mill under 10 CFR 40.51(5), because the Mill is "authorized to receive such source or byproduct
material" under terms of the Mill License, which is "a specific license or a general license or their equivalents
issued by the Commission or an Agreement State," as required by that regulation.
Composition of the Transferred Source Material
As discussed above, the Honeywell Yellowcake consists solely of hardened concentrates of natural uranium
yellowcake attached to shreds of steel product drums. Neither the yellowcake nor the drum shreds contain any
constituent that is not present and handled routinely at the Mill. The Honeywell Yellowcake may, in fact,
include yellowcake previously produced at the Mill, and some of the drum shreds may have originated at or
passed through the Mill.
The detailed analysis of the Honeywell Yellowcake was discussed above. The Mill already receives and
recycles and/or disposes of steel drums from a number of other facilities in the US and abroad which enter the
Mill from various sources, including:
• Alternate feed materials;
• Process chemicals; and
• 1 le.(2) byproduct material from in-situ recovery facilities.
4
Letter to R. Lundberg
July 26, 2013
Page 5 of 7
Concentration and Purification of the Honeywell Yellowcake
The Honeywell Yellowcake does not meet the specifications required for acceptance at a conversion facility,
due to its moisture content, its hardened form, and its adherence to the drum shreds. It therefore requires further
concentration and purification at the Mill in order to produce yellowcake that meets commercial specifications.
Concentration and purification will include separation of the hardened yellowcake from the drum shreds, and
then concentration, precipitation, drying and packaging the yellowcake. Other impurities in the Honeywell
Yellowcake would also be removed during this process. This will result in a purified form of yellowcake that
meets all of the commercial specifications for yellowcake.
Separating the hardened yellowcake from the drum shreds at the Mill will involve the same steps EFRI would
use to separate any of its own yellowcake product that were to become hardened and/or attached to its own
product drums. The Mill has previously internally reprocessed off-spec yellowcake product produced at the
Mill. Off-spec product is removed from its product drums and reintroduced into the process at the leach,
extraction, or precipitation area as appropriate. If the Mill were to reprocess yellowcake that had become
hardened and/or attached to its drum walls, the Mill would acidify and empty the drum contents in the same
fashion, and reintroduce the dissolved yellowcake into the Mill's leach circuit, just as would be required for the
Honeywell Yellowcake. Consistent with License condition 9.4, the Mill's SERP committee would review any
changes to the facility or process, or to existing procedures, required to dissolve the hardened yellowcake from
the shreds and remove the dissolved yellowcake and shreds from the overpack drums, prior to reprocessing the
yellowcake and disposal of the remaining shreds, just as it would for similar procedures involving its own
hardened yellowcake.
The United States Nuclear Regulatory Commission ("NRC") has concluded that reprocessing yellowcake in
these circumstances is uranium milling and that the resulting wastes are lle.(2) byproduct material. In Staff
Requirements - SECY—02—0095 - Applicability of Section lie.(2) of the Atomic Energy Act to Material at the
Sequoyah Fuels Corporation Uranium Conversion Facility, a copy of which is included with this letter, NRC
concluded that wastes generated at the front end of the Sequoyah Fuels Corporation conversion facility ("SFC")
that resulted from the further concentration and purification of yellowcake that it had received from uranium
mills can be classified as lle.(2) byproduct material. In that decision, the Commission accepted NRC Staffs
position that "The staff has not found it necessary to label the feed for each step of the milling process as "ore"
as the basis for classifying the waste from that step as 1 le.(2) byproduct material. When yellowcake underwent
additional concentration at the front end of SFC, it was a continuation of uranium milling, i.e., another step of
the milling process. Thus, that part of the processing at a conversion facility fulfills the "extraction or
concentration" terms of 1 le.(2) byproduct material."1 Unlike SFC, the Metropolis Works does not have a front
end concentration and purification stage, and therefore must send the Honeywell Material to the Mill to perform
this final stage of uranium milling. As indicated by NRC Staff, and adopted by the Commission, "[the Office of
the General Counsel] has advised the staff that the definitions of uranium milling and lle.(2) byproduct
material are process-related definitions and not restricted to a particular location of activity nor the physical
characteristic of a material."2 In fact, NRC Staff noted a number of circumstances where uranium mills in the
past each performed a part only of the uranium milling process and then shipped the resulting produced material
or concentrates to another licensed facility for further milling. NRC Staff noted that "[e]ach of these mills and
1 Policy Issue (Notation Vote) SECY-02-0095, page 3.
2 Policy Issue (Notation Vote) SECY-02-0095, footnote 2.
5
Letter to R. Lundberg
July 26, 2013
Page 6 of 7
several others accomplished only a portion of the milling process at dispersed locations but were all licensed
operations at one time."3
Concentrating and purifying the Honeywell Yellowcake at the Mill is therefore another step of the uranium
milling process, and all wastes associated with such milling are classified as 1 le.(2) byproduct material and can
be disposed of in the Mill's tailings cells.
Disposal
As determined by NRC in Sequoyah, all wastes associated with further concentration and purification of
yellowcake can be classified as 1 le.(2) byproduct material. Since the concentration and purification of the
Honeywell Yellowcake at the Mill involves the same steps in the milling process as for other yellowcake, all
wastes associated with the milling will be the same as wastes associated with concentration and purification of
yellowcake at the Mill. The same can be said for the drum shreds. The Mill routinely crushes and disposes of
steel drums from the various sources listed above as 1 le.(2) byproduct material in its tailings cells. Since there
are no new or additional constituents in the Honeywell Yellowcake and associated drum shreds, there will be no
human health, environmental, or worker safety impacts due to new or additional constituents above those
already managed at the Mill.
The Honeywell Yellowcake is Source Material and not an Alternate Feed Material
The Honeywell Material is source material that is being transferred to the Mill under 10 CFR 40.51 and the Mill
License and will be further concentrated and purified as a step in the uranium milling process. It is not an "ore"
and hence is not an alternate feed material. In fact, in its recommendation to the Commission in the Sequoyah
decision, NRC Staff noted that "[w]hether the incoming source material to SFC meets the definition of "ore" is
not relevant to the argument of waste classification. Declaring an incoming feed for individual milling-process
stages as "ore," throughout the continuum of milling, is an artificial and unnecessary distinction. When milling
is done at one site, the feed for each stage is not considered when making lle.(2) byproduct material
determinations for the classification of wastes for each stage. Similarly, uranium milling has, and does, occur at
different locations under regulatory oversight without the construct of individual processing feeds meeting the
definition of "ore." Thus, there is no need to consider the feed at SFC as ore, because the front-end process at
SFC was simply the last step in the milling activity .. ."4
Conclusion
The Honeywell Yellowcake can be received at the Mill as a licensee-to-licensee transfer of source material
under 10 CFR 40.51(5) and the Mill License. The Honeywell Yellowcake can be further concentrated and
purified at the Mill as a step in the uranium milling process in order to produce yellowcake that meets
commercial specifications. All wastes from such concentration and purification can be disposed of in the Mill's
tailings cells as 1 le.(2) byproduct material. As the Honeywell Uranium is not an "ore" it is not an alternate
feed material, and hence an amendment to the Mill License is not required.
3 Policy Issue (Notation Vote) SECY-02-0095, Attachment 5:
page 2
* Policy Issue (Notation Vote) SECY-02-0095, Attachment 5:
page 6.
Uranium Milling Activities at Sequoyah Fuels Corporation,
Uranium Milling Activities at Sequoyah Fuels Corporation,
6
Letter to R. Lundberg
July 26,2013
Page 7 of 7
Further, there are no additional environmental, health, or safety concerns associated with the receipt of the
Honeywell Yellowcake and associated drum shreds, or the separation, precipitation, drying and packaging of
the yellowcake and the disposal of the drum shreds in the Mill's tailings cells. The Honeywell Yellowcake has
the same chemical composition as yellowcake produced or reprocessed in the Mill, and the associated drum
shreds have the same composition as drums disposed of at the Mill on a regular basis. No additional or new
chemicals or reagents will be used in the process.
Please advise us as soon as possible whether you concur with EFRI's determination as described in this letter.
If you should have any questions regarding the above information, please contact me or David Frydenlund at
303-389-4132.
Yours very truly,
ENERGY FUELS RESOURCES (USA) INC.
Jo Ann Tischler
Manager, Mill Compliance
CC: David C. Frydenlund
Dan Hillsten
John Hultquist (DRC)
Harold R. Roberts
David E. Turk
Katherine A. Weinel
Attachments
7
Letter to R. Lundberg
July 26, 2013
Page 2 of7
2013, confirms that the Honeywell Yellowcake has never been combined with, nor contains, any other materials
or constituents. Detailed information supporting the description presented to Mr. Hultquist during the June 6,
2013 telephone call is provided below.
Honeywell proposes to ship approximately 4,800 overpack-sized drums containing approximately 200,000
pounds of Honeywell Yellowcake attached to 800,000 pounds of shredded drum pieces produced as discussed
below. Based on the information below, EFRI believes that the Honeywell Yellowcake can be separated from
the shreds at the Mill just as any other encrusted yellowcake could be separated from drums at the Mill. The
drum shreds would then be disposed of in the Mill's tailings cells in the same manner as any other discarded
drum. The overpacks would either be returned to Honeywell, or re-used by the Mill, or if not fit for re-use,
disposed of in the Mill's tailing cells like any other non-reusable overpack.
Honeywell Yellowcake History
The details provided below confirm that the Honeywell Yellowcake has not been commingled with any other
material or constituents.
The Metropolis Works has received yellowcake drums from uranium milling operations in the US from 1958 to
1964 and from the US and abroad since 1968. Yellowcake received at the Metropolis Works is converted to
uranium hexafluoride and shipped to other facilities in the nuclear fuel cycle for enrichment and then
fabrication into reactor fuel.
The Metropolis Works opens and samples each yellowcake drum for assay and characterization to confirm that
the contents comply with Honeywell's contract requirements for yellowcake from each supplier. Each drum
remains open for no more than a few minutes at the time of initial sampling. Drums which meet the contract
requirements are inventoried and remain closed until they are scheduled to be processed in the Metropolis
Works conversion plant.
The Metropolis Works received approximately 15,000 drums over the past 25-year period, which have not been
processed in the conversion plant. Each of the 15,000 drums (as well as all other yellowcake feed drums
accepted at the Metropolis Works):
• was opened once for assay and composition analysis;
• had an assay and composition which met Honeywell's acceptance contract criteria at the time of
receipt; that is, contained only yellowcake;
• remained closed awaiting processing in the conversion plant; and
• was opened and inspected prior to anticipated processing.
Honeywell determined that for each of these 15,000 drums, the drummed yellowcake contents had, over the
period the drum was inventoried awaiting processing, absorbed moisture through its drum lid. The moistened
yellowcake hardened within the drums and could no longer be removed by conventional drum emptying
equipment. Each of the drums containing hardened yellowcake was relabeled as "hard ore." It should be noted
that each drum of "hard ore" remained within Honeywell's inventory of yellowcake because it contained only
yellowcake, and retained its uranium value as potential feed to Honeywell's conversion facility. However,
since the drums could not be emptied, the contents could not be processed.
2
Letter to R. Lundberg
July 26, 2013
Page 3 of7
Preparation of Drum Shreds
In 2012 and 2013, in an attempt to remove the hardened yellowcake that could not be directly emptied from the
15,000 drums identified as "hard ore", Honeywell installed mechanical equipment at the Metropolis Works to
shred the drums and recover the majority of the contained uranium value in the hardened yellowcake.
Each "hard ore" drum was opened and put through a mechanical shredder, which shredded the drums and the
hardened yellowcake in the drums. No chemicals or reagents of any type were used in the shredding process.
The portion of the hardened yellowcake which was not freed by the shredding remained attached to the
shredded drum pieces. The shredded yellowcake pieces, together with the yellowcake-encrusted shredded drum
pieces, were transferred on a conveyor belt to a separation step which mechanically separated the encrusted
drum pieces from the shredded yellowcake pieces. The resulting freed yellowcake pieces were repackaged in
overpack-sized drums, for introduction into the process at the Metropolis Works. The remaining hardened
yellowcake encrusted on the drum shreds comprises the Honeywell Yellowcake. The Honeywell Yellowcake
was repackaged in overpack-sized drums, and is intended for transfer to the Mill under 10 CFR 40.51(5).
At the current time, all the "hard ore" at the Metropolis Works has been handled in this manner. This produced
approximately 17,000 drums of shredded/pulverized hardened yellowcake (due to expansion during shredding)
and approximately 4,800 drums of hardened yellowcake adhered to drum shreds (due to expansion during
shredding). The hardened yellowcake attached to the drums was identical to the hardened yellowcake freed and
packaged separately and ultimately introduced, or to be introduced, as yellowcake into the process at the
Metropolis Works.
Honeywell will process at the Metropolis Works the 17,000 drums of hardened yellowcake freed from the
shreds along with its other yellowcake inventory. Honeywell plans to ship approximately 4,800 drums of the
remaining Honeywell Yellowcake, along with the associated shreds to EFRI at the Mill as a licensee-to-licensee
transfer of source material under 1 0 CFR 40.51 and the Mill License. The Mill will then separate the
Honeywell Yellowcake from the drum shreds and concentrate and purify the separated yellowcake into
commercial yellowcake product. The Honeywell Yellowcake to be transferred to the Mill has been very well
characterized as discussed with Mr. Hultquist and detailed below.
Drum Characterization Data
Honeywell performed sampling and characterization of the yellowcake resulting from the shredding process as
follows. The characterization is representative of both the shredded hardened yellowcake and the Honeywell
Yellowcake attached to the shredded drums.
As the Honeywell Yellowcake was separated from shredded pulverized hardened yellowcake on the conveyor
belt, a sample was collected. Samples were collected from 9,408 (over 55%) of the drums of recovered
hardened yellowcake. Samples from each of the 48 drums were composited into one lot. A total of 196
samples/lots representing 9,408 drums of hardened yellowcake were analyzed for every constituent III
Honeywell's feed acceptance criteria table. Data from the analyses are summarized in the attached Table 1.
The data indicate that:
• the Honeywell Yellowcake consists solely of natural uranium ore concentrates (yellowcake only), and
3
Letter to R. Lundberg
July 26, 2013
Page 4 of7
• the yellowcake is within the specifications of Honeywell's feed acceptance criteria (other than the
moisture content which contributed to the hardening of the yellowcake, the hardened physical form and
the associated drum shreds).
The drum shreds are the same composition as the drums received and disposed of at the Mill on a regular basis.
Regulatory Considerations
EFRI has considered the following in making its determination and conclusions discussed below.
Transport
USDOT regulations and existing procedures already regulate the shipment of Honeywell Yellowcake between
the Mill and the Metropolis Works. The number of trucks associated with transporting the Honeywell
Yellowcake to the Mill will be far fewer (140 times fewer) than the number of trucks required to transport the
quantity of ore needed to produce the same mass of yellowcake. The number of trucks required to transport the
resulting separated, precipitated, dried and packaged yellowcake to and from the Mill would be the same as
required to transport yellowcake produced from processing natural ores or any other feed at the Mill.
Receipt
The first paragraph and Conditions 6, 7, and 8 of the Mill License allow EFRI to "transfer, receive, possess and
use" "natural uranium" "in any form" with "no maximum quantity limit". Receipt of the Honeywell
Yellowcake, along with the associated drum shreds, would be a licensee-to-licensee transfer of source material
to the Mill under 10 CPR 40.51(5), because the Mill is "authorized to receive such source or byproduct
material" under terms of the Mill License, which is "a specific license or a general license or their equivalents
issued by the Commission or an Agreement State," as required by that regulation.
Composition of the Transferred Source Material
As discussed above, the Honeywell Yellowcake consists solely of hardened concentrates of natural uranium
yellowcake attached to shreds of steel product drums. Neither the yellowcake nor the drum shreds contain any
constituent that is not present and handled routinely at the Mill. The Honeywell Yellowcake may, in fact,
include yellowcake previously produced at the Mill, and some of the drum shreds may have originated at or
passed through the Mill.
The detailed analysis of the Honeywell Yellowcake was discussed above. The Mill already receives and
recycles and/or disposes of steel drums from a number of other facilities in the US and abroad which enter the
Mill from various sources, including:
• Alternate feed materials;
• Process chemicals; and
• l1e.(2) byproduct material from in-situ recovery facilities.
4
Letter to R. Lundberg
July 26,2013
Page 5 of7
Concentration and Purification of the Honeywell Yellowcake
The Honeywell Yellowcake does not meet the specifications required for acceptance at a conversion facility,
due to its moisture content, its hardened form, and its adherence to the drum shreds. It therefore requires further
concentration and purification at the Mill in order to produce yellowcake that meets commercial specifications.
Concentration and purification will include separation of the hardened yellowcake from the drum shreds, and
then concentration, precipitation, drying and packaging the yellowcake. Other impurities in the Honeywell
Yellowcake would also be removed during this process. This will result in a purified form of yellowcake that
meets all of the commercial specifications for yellowcake.
Separating the hardened yellowcake from the drum shreds at the Mill will involve the same steps EFRI would
use to separate any of its own yellowcake product that were to become hardened and/or attached to its own
product drums. The Mill has previously internally reprocessed off-spec yellowcake product produced at the
Mill. Off-spec product is removed from its product drums and reintroduced into the process at the leach,
extraction, or precipitation area as appropriate. If the Mill were to reprocess yellowcake that had become
hardened and/or attached to its drum walls, the Mill would acidify and empty the drum contents in the same
fashion, and reintroduce the dissolved yellowcake into the Mill's leach circuit, just as would be required for the
Honeywell Yellowcake. Consistent with License condition 9.4, the Mill's SERP committee would review any
changes to the facility or process, or to existing procedures, required to dissolve the hardened yellowcake from
the shreds and remove the dissolved yellowcake and shreds from the overpack drums, prior to reprocessing the
yellowcake and disposal of the remaining shreds, just as it would for similar procedures involving its own
hardened yellowcake.
The United States Nuclear Regulatory Commission ("NRC") has concluded that reprocessing yellowcake in
these circumstances is uranium milling and that the resulting wastes are 11e.(2) byproduct material. In Staff
Requirements -SECY-02-0095 -Applicability of Section 11 e.(2J of the Atomic Energy Act to Material at the
Sequoyah Fuels Corporation Uranium Conversion Facility, a copy of which is included with this letter, NRC
concluded that wastes generated at the front end of the Sequoyah Fuels Corporation conversion facility ("SFC")
that resulted from the further concentration and purification of yellowcake that it had received from uranium
mills can be classified as lle.(2) byproduct material. In that decision, the Commission accepted NRC Staff's
position that "The staff has not found it necessary to label the feed for each step of the milling process as "ore"
as the basis for classifying the waste from that step as lle.(2) byproduct material. When yellowcake underwent
additional concentration at the front end of SFC, it was a continuation of uranium milling, i.e., another step of
the milling process. Thus, that part of the processing at a conversion facility fulfills the "extraction or
concentration" terms of 11e.(2) byproduct material.'" Unlike SFC, the Metropolis Works does not have a front
end concentration and purification stage, and therefore must send the Honeywell Material to the Mill to perform
this final stage of uranium milling. As indicated by NRC Staff, and adopted by the Commission, "[the Office of
the General Counsel] has advised the staff that the definitions of uranium milling and l1e.(2) byproduct
material are process-related definitions and not restricted to a particular location of activity nor the physical
characteristic of a material.,,2 In fact, NRC Staff noted a number of circumstances where uranium mills in the
past each performed a part only of the uranium milling process and then shipped the resulting produced material
or concentrates to another licensed facility for further milling. NRC Staff noted that "[e]ach of these mills and
, Policy Issue (Notation Vote) SECY-02-0095, page 3.
2 Policy Issue (Notation Vote) SECY-02-0095, footnote 2.
5
Letter to R. Lundberg
July 26, 2013
Page 60f7
several others accomplished only a portion of the milling process at dispersed locations but were all licensed
operations at one time.,,3
Concentrating and purifying the Honeywell Yellowcake at the Mill is therefore another step of the uranium
milling process, and all wastes associated with such milling are classified as lle.(2) byproduct material and can
be disposed of in the Mill's tailings cells.
Disposal
As determined by NRC in Sequoyah, all wastes associated with further concentration and purification of
yellowcake can be classified as lle.(2) byproduct material. Since the concentration and purification of the
Honeywell Yellowcake at the Mill involves the same steps in the milling process as for other yellowcake, all
wastes associated with the milling will be the same as wastes associated with concentration and purification of
yellowcake at the Mill. The same can be said for the drum shreds. The Mill routinely crushes and disposes of
steel drums from the various sources listed above as lle.(2) byproduct material in its tailings cells. Since there
are no new or additional constituents in the Honeywell Yellowcake and associated drum shreds, there will be no
human health, environmental, or worker safety impacts due to new or additional constituents above those
already managed at the Mill.
The Honeywell Yellowcake is Source Material and not an Alternate Feed Material
The Honeywell Material is source material that is being transferred to the Mill under 10 CFR 40.51 and the Mill
License and will be further concentrated and purified as a step in the uranium milling process. It is not an "ore"
and hence is not an alternate feed material. In fact, in its recommendation to the Commission in the Sequoyah
decision, NRC Staff noted that "[ w ]hether the incoming source material to SFC meets the definition of "ore" is
not relevant to the argument of waste classification. Declaring an incoming feed for individual milling-process
stages as "ore," throughout the continuum of milling, is an artificial and unnecessary distinction. When milling
is done at one site, the feed for each stage is not considered when making lle.(2) byproduct material
determinations for the classification of wastes for each stage. Similarly, uranium milling has, and does, occur at
different locations under regulatory oversight without the construct of individual processing feeds meeting the
definition of "ore." Thus, there is no need to consider the feed at SFC as ore, because the front-end process at
SFC was simply the last step in the milling activity ... ,,4
Conclusion
The Honeywell Yellowcake can be received at the Mill as a licensee-to-licensee transfer of source material
under 10 CFR 40.51(5) and the Mill License. The Honeywell Yellowcake can be further concentrated and
purified at the Mill as a step in the uranium milling process in order to produce yellowcake that meets
commercial specifications. All wastes from such concentration and purification can be disposed of in the Mill's
tailings cells as lle.(2) byproduct material. As the Honeywell Uranium is not an "ore" it is not an alternate
feed material, and hence an amendment to the Mill License is not required.
3 Policy Issue (Notation Vote) SECY-02-0095, Attachment 5: Uranium Milling Activities at Sequoyah Fuels Corporation,
page 2
4 Policy Issue (Notation Vote) SECY-02-0095, Attachment 5: Uranium Milling Activities at Sequoyah Fuels Corporation,
page 6.
6
Letter to R. Lundberg
July 26, 2013
Page 7 of7
Further, there are no additional environmental, health, or safety concerns associated with the receipt of the
Honeywell Yellowcake and associated drum shreds, or the separation, precipitation, drying and packaging of
the yellowcake and the disposal of the drum shreds in the Mill's tailings cells. The Honeywell Yellowcake has
the same chemical composition as yellowcake produced or reprocessed in the Mill, and the associated drum
shreds have the same composition as drums disposed of at the Mill on a regular basis. No additional or new
chemicals or reagents will be used in the process.
Please advise us as soon as possible whether you concur with EFRI's determination as described in this letter.
If you should have any questions regarding the above information, please contact me or David Frydenlund at
303-389-4132.
;o;IY~ek/
ENERGY FUELS RESOURCES (USA) INc.
JoAnn Tischler
Manager, Mill Compliance
CC: David C. Frydenlund
Dan Hillsten
John Hultquist (DRC)
Harold R. Roberts
David E. Turk
Katherine A. Weinel
Attachments
7
Table 1
Analysis of Honeywell UOC on Drum Shreds
UOC Material %8e %8 %Na %Mg %Si %P %K %Ca %Ti %V %Cr
Average <0.0001 0.0003 0.30 0.0161 0.0574 0.0331 0.13 0.15 0.0037 0.0349 0.0006
Max 0.0001 0.0015 1.53 0.1248 0.2297 0.1708 9.10 1.28 0.0173 0.1623 0.0043
Min <0.0001 <0.0001 0.03 0.0026 <0.0001 <0.0001 <0.01 0.02 0.0005 0.0010 <0.0001
I Honeywell
Acceptance
Specification
(max) NA 0.10 3.00 0.50 3.50 1.00 2.00 1.00 0.05 0.75 0.04
UOC Material %Co %Ni %As %Se %Zr %Mo %Ag %Cd %Sb %8a %Hg
Average 0.0003 0.0019 0.0105 0.0045 0.0303 0.0606 0.0001 0.0002 0.0004 0.0016 <0.0001
Max 0.0033 0.0955 0.0249 0.2286 0.1535 0.4842 0.0011 0.0005 0.0058 0.0161 0.0003
Min <0.0001 <0.0001 0.0011 0.0000 0.0015 0.0033 <0.0001 <0.0001 <0.0001 0.0001 <0.0001
I Honeywell
Acceptance
Specification
(max) NA NA 0.10 0.04 1.00 0.30 0.04 0.04 NA 0.04 NA -----~~ -
UOC Material ppm U-234 %235U %238U %S04-%Cr %F %H20
Average 53.29 0.711 76.77 1.52 0.01 0.07 8.42
Max 54.87 0.714 81.83 7.10 0.24 1.26 25.48
Min 51.56 0.706 67.66 0.62 <0.01 <0.01 1.20
I Moneywell
Acceptance I
Specification
(max) 62.00 NA NA 4.00 NA 0.15 2
Note: Analytical data on 196 lots of hard ore with the exclusion of sulfates. Only 96 lots have been analyzed for sulfates as of 6/6/2012.
Samples collected and analyzed in 2013 at Honeywell's Metropolis Works
%Mn %Fe
0.0071 1.13
0.0414 S.25
0.0011 0.10
NA 2.50
%Pb ppmTh
0.0015 318
0.0331 5615
0.0001 0.3
0.04 5000.00
July 25, 2002
MEMORANDUM TO: William D. Travers
Executive Director for Operations
FROM: Annette L. Vietti-Cook, Secretary IRA!
SUBJECT: STAFF REQUIREMENTS -SECY-02-0095 -APPLICABILITY OF
SECTION 11e.(2) OF THE ATOMIC ENERGY ACT TO MATERIAL
AT THE SEQUOYAH FUELS CORPORATION URANIUM
CONVERSION FACILITY
The Commission has approved Option 2 of SECY-02-0095. Sequoyah Fuels Corporation's front-
end waste can be classified as Section 11e.(2) byproduct material and can be disposed of in
accordance with the uranium mill tailings impoundment regulations in Appendix A of
10 CFR Part 40.
cc: Chairman Meserve
Commissioner Dicus
Commissioner Diaz
Commissioner McGaffigan
OGC
CFO
OCA
OIG
OPA
Office Directors, Regions, ACRS, ACNW, ASLBP (via E-Mail)
PDR
June 4.2002
FROM:
SUBJECT:
PURPOSE:
POLICY ISSUE
(Notation Vote)
The Commissioners
William D. Travers
Executive Director for Operations
SECY -02-0095
APPLICABILITY OF SECTION 11e.(2) OF THE ATOMIC ENERGY ACT
TO MATERIAL AT THE SEQUOYAH FUELS CORPORATION
URANIUM CONVERSION FACILITY
To request Commission approval that certain Sequoyah Fuels Corporation (SFC) waste can be
classified as Atomic Energy Act, Section 11 e.(2) byproduct material.
SUMMARY:
The SFC uranium conversion facility is included in the Site Decommissioning Management Plan
(SDMP) as a result of contamination that occurred during the plant's operations, which ceased in
1992. In March 1999, SFC submitted a decommissioning plan to remediate the site and terminate
the license in accordance with the restricted release provisions in the 1997 License Termination
Rule (LTR) in 10 CFR 20.1403. In January 2001, SFC formally requested that the staff evaluate
whether a portion of its waste could be considered as 11 e.(2) byproduct material and, thereby, be
remediated under the uranium mill tailings impoundment regulations in Appendix A of 10 CFR Part
40. SFC had made a similar request in 1993 to classify the same materials on site as 11e.(2)
byproduct material, but the staff did not agree with its proposal at that time. This paper discusses
SFC's most recent request, two options for responding to this
CONTACT: Jim Shepherd, NMSS/DWM
(301 )-415-6712
The Commissioners -2-
request, the advantages and disadvantages of each option, and recommends that SFC's waste
from the front-end of its Gore, OK, operation be considered 11 e.(2) byproduct material. This
paper also addresses the recommendations of a panel that reported on a Differing Professional
View (DPV) filed by two staff members. The DPV was based on an earlier draft of this paper that
also concluded that front-end material could be considered to be 11 e.(2) byproduct material.
DISCUSSION:
SFC has thus far been unable to obtain an independent third party/custodian for institutional
controls for restricted release under the L TR provisions in 10 CFR Part 20, Subpart E. In a letter
dated January 5, 2001, SFC asked the staff to inform it of the applicability of Section 11 e.(2) of the
AEA to the waste from the front-end process of the Gore, OK, uranium conversion facility, to
determine if the facility could be decommissioned pursuant to 10 CFR Part 40, Appendix A. If so,
the U.S. Department of Energy (DOE),1 pursuant to Section 202 of Title II of the Uranium Mill
Tailings Radiation Control Act of 1978 (UMTRCA), would be required to assume responsibility
under the general license for requirements in the Long-Term Surveillance Plan (LTSP) after
license termination by the U.S. Nuclear Regulatory Commission (NRC). If the site were
remediated under 10 CFR Part 40, DOE would become the general licensee and provide
assurance that the L TSP is appropriately implemented. SFC argues that the initial processing of
material at the Gore site was equivalent to the processing at a uranium mill (i.e., solvent extraction
of uranium from the feedstock). Therefore, SFC submits, the wastes at the Gore site from the
initial material process should be classified as Section 11e.(2) byproduct material, to be
decommissioned under the criteria in Part 40, Appendix A. SFC has stated that this waste, which
is generally segregated from the waste from the back end of the conversion process, is estimated
to be about 80 percent of the residual radioactive material at the site. SFC further argues that the
staff is more familiar with the decommissioning process in 10 CFR Part 40, Appendix A, and the
L TSPs in particular that are implemented by DOE at mill tailings impoundments. The staff has yet
to authorize a restricted release of a site under the provisions of the L TR. Therefore, SFC
believes that decommissioning under the 10 CFR Part 40, Appendix A, process would be more
appropriate, less costly, and take less time than decommissioning the site under the L TR process.
The staff has previously considered the issue of classifying the waste from the front-end
process of the Gore, OK, uranium conversion facility as 11 e.(2) byproduct material. In a July 1993
memorandum to the Commission, the Executive Director for Operations (EDO), supported by the
Office of the General Counsel (OGC), concluded that the waste was not 11 e.(2) byproduct
material. This conclusion was based on the previous view that uranium hexafluoride conversion
1 Under UMTRCA, the State of Oklahoma could assume responsibility before DOE was required to.
Oklahoma has indicated that it does not wish to assume responsibility for the SFC site.
The Commissioners -3-
plants had not been considered as uranium mills and were not contemplated as such by
UMTRCA. OGC has advised the staff that it has reconsidered its position.2
Attachments to this paper provide detailed background information on these matters. Attachment
1 describes the site in a general fashion and also describes two SFC proposals to classify waste
as 11 e.(2) byproduct material --one made in 1993, the other in 2001. The staffs response to the
1993 proposal is in Attachment 2, a memorandum from J. Taylor, EDO, to the Commission, dated
July 6, 1993. Attachment 3 is a SFC presentation in a June 2000 meeting with the staff. SFC's
formal request for review on this issue is set forth in a January 5, 2001, letter to NRC (Attachment
4).
The staff believes that the activity at the front-end of the Sequoyah processing was uranium
milling, and thus produced 11 e.(2) byproduct material as its wastes. In Attachment 5, "Uranium
Milling Activities at the Sequoyah Fuels Corporation Uranium Conversion Facility," the staff
discusses in detail why this classification is justified. That attachment contains a plain-language,
working definition of uranium milling, based on the language in UMTRCA and Part 40:
Uranium milling is an activity or set of processes that extracts or concentrates uranium or
thorium from any ore primarily for its source material content, and the resulting tailings or
wastes are 11e.(2) byproduct material.3
The front-end of the Gore facility can reasonably be viewed as a continuation of the milling
process that was started at a licensed uranium mill. Since all wastes from such milling are
11e.(2) byproduct material, a strong argument can be made that the waste from that stage of the
milling process which occurred at the SFC facility can be considered 11 e.(2) byproduct material.
In that regard, it should be noted that the staff previously considered all waste at a uranium mill,
including some yellowcake from the milling process, to be 11 e.(2) byproduct material, because
the staff had not divided the milling process into its constituent parts to determine precisely at
which stage uranium is no longer being extracted or concentrated from ore. The staff has not
found it necessary to label the feed for each step of the milling process as "ore" as the basis for
classifying the waste from that step as 11 e.(2) byproduct material. When yellowcake underwent
additional concentration at the front-end of SFC, it was a continuation of uranium milling, i.e.,
another step in the milling process. Thus, that part of the processing at a conversion facility
fulfills the "extraction or concentration" terms in the definition of 11 e.(2) byproduct material.
2 OGC has advised the staff that the definitions of uranium milling and 11 e.(2) byproduct material are
process-related definitions and not restricted to a particular location of activity nor the physical characteristics of a
material. Although the tailings and waste from the front-end of SFC's facility can continue to be classified as source
material, this material can also be classified as 11e.(2) byproduct material if the process that took place at the front-end
of SFC's facility can be considered a continuation of uranium milling. As a result, the front-end wastes could fall under
the legislative and regulatory definitions of two different licensed materials and it would be a policy decision by the
Commission as to whether to classify the front-end wastes as source material or 11e.(2) byproduct material.
3 As stated in NRC's December 13, 2000, Director's DeCiSion, although pre-UMTRCA mill tailings may be
chemically, phYSically, and radiologically similar to 11 e.(2) byproduct material, it is not material over which NRC has
jurisdiction.
The Commissioners -4-
The staff has identified two options for responding to SFC's request: (1) continue with the
previous view and disagree with SFC's arguments, and continue decommissioning the site under
the L TR; or (2) agree with SFC's arguments and classify some SFC waste as Section 11e.(2)
byproduct material. SFC has only requested a decision on whether its front-end waste can be
considered to be 11 e.(2) byproduct material. Thus, decommissioning under that classification or
under the L TR, on which its current decommissioning plan is based, are the only two options
examined in this paper.
In evaluating these options, the staff has identified a general framework for decision-making
involving complex sites undergoing decommissioning, and specific considerations for the SFC
site under this framework (Attachment 6). The criteria in the framework are based on the
Agency's four Strategic Plan performance goals. The staffs evaluation of SFC's proposal is
based not only on whether there is a valid legal argument that the wastes can be classified as
11 e.(2) byproduct material, but also on other important factors, such as protection of public
health and safety, the imposition of unnecessary regulatory burden, and the effect on public
confidence, and agency efficiency.
The need for a broader framework to consider the issues presented in this paper is driven by
significant changes in the external environment since the passage of UMTRCA that affect the
management and disposal of low-activity, long-lived radioactive wastes from contaminated sites.
States and Compacts have been unable to develop new disposal sites under the Low-Level
Radioactive Waste Policy Amendments Act of 1985, and two of the three operating low-level
waste (LLW) sites are limited in the waste that they can accept in this category. As availability of
LLW disposal options has diminished, remediation programs have grown. NRC's Site
Decommissioning Management Program (SDMP) was established in 1990 and sites in this
program require disposal of hundreds of cubic meters of low-activity material.4 During this same
period, the uranium mining and milling industry has been in decline and the National Mining
Association (NMA), and the mill operators they represent, have been encouraging the greater
use of existing mill tailings impoundments for disposal of contaminated materials from sites
undergoing decommissioning. NMA stated in its September 11,2001, petition for rulemaking,
that conventional mill tailings impoundments have 20 million metric tons (or approximately 20
million cubic meters) of additional disposal capacity that could be used for other similar wastes.
Several companies that operate Resource Conservation and Recovery Act (RCRA) hazardous
waste facilities in the U.S. have pursued acceptance of low-specific-activity5 radioactive waste
licensed under the AEA, to complement the technologically enhanced naturally occurring
materials they have been accepting. NRC has approved a number of requests for disposal of
unimportant quantities of source materials in such facilities, and several States have included
acceptance criteria for radioactive wastes in the their RCRA permits for such facilities.
4 In a staff requirements memorandum dated August 22, 1989, the Commission directed the staff to develop a
comprehensive strategy for NRC activities to deal with contaminated sites, to achieve closure on decommissioning
issues in a timely manner.
5 By "low-specific activity," the staff means here "unimportant quantities" or less than 0.05% by weight of
uranium and/or thorium.
The Commissioners -5-
In spite of the alternatives that have developed for these kinds of waste, there still remain
obstacles to safe disposal alternatives for low-activity wastes, because of their classification as a
particular kind of waste (e.g., as 11e.(2) byproduct material or source material). The
purpose of the framework in Attachment 6 is to: (1) address wastes which, in a specific case,
may be classified as more than one type of radioactive material; and (2) identify
disposal/remediation options that best meet the four NRC Strategic Plan performance goals.
This increased flexibility may lead to safe disposal alternatives with lower costs, increased
competition, and faster cleanups. In the case of SFC, consideration of the four performance
goals provides insights on the advantages and disadvantages of classifying some wastes as
11 e.(2) byproduct material. Such a classification is different from the staffs previous position that
11 e.(2) byproduct material could only be produced at uranium mills; however, this is outdated in
light of the significant changes in the external environment over the last 20 plus years.
The options, both of which are protective of the public health and safety, are discussed below,
along with their major advantages and disadvantages.
Option 1: Continue Decommissioning the Site under the L TR.
Under this option, the licensee would continue to decommission the site under the restricted
release provisions of the L TR (i.e., 10 CFR 20.1403), including demonstrating compliance with
the requirements for institutional controls and associated financial assurances. In this process,
the licensee is responsible for providing sufficient financial assurance to enable an independent
third party/custodian to assume necessary long-term control and maintenance of the site.
Because of the significant quantity of materials with long-lived radionuclides (140,000 -240,000
cubic meters in contaminated soils, sludge, and groundwater), SFC proposed an unnamed party,
"equivalent to DOE," as the custodian. However, SFC has not been able, to date, to identify an
entity willing to undertake this responsibility. Section 151 (b) of the Nuclear Waste Policy Act of
1982 (NWPA) allows, but does not compel, DOE to assume ownership
and control of sites like SFC at no cost to the government. SFC has met with DOE to discuss
this issue, but has not obtained a commitment from it at this time. The staff has also been
seeking to develop a Memorandum of Understanding (MOU) with DOE to provide long-term care
under Section 151(b), but in January 2002, DOE informed the Chairman that it would be seeking
to transfer its long-term stewardship responsibilities to the U.S. Department of the Interior (DOl)
or another government organization with a land-management mission. Thus, there is
considerable uncertainty about whether this provision can be used, or at least when it would be
available for use by an NRC or Agreement State licensee. SFC has not proposed the use of the
unrestricted release provisions of the L TR, which would be substantially more costly (an
estimated several tens of millions of dollars more than an onsite cell).
Advantages
This approach is consistent with previous staff position on this issue and may avoid
some controversy by not reconsidering staff positions on 11 e.(2) byproduct material.
The Commissioners -6-
This approach maintains staffs previous position on 11e.(2) byproduct material by
defining it in terms of the location where processing takes place, viz., a uranium mill
(although the statute makes no reference to where the processing takes place).
This approach avoids interpretations based on detailed analyses and arguments over
what constitutes "milling," "ores," and "extraction or concentration" --the key terms in the
definition of 11 e.(2) byproduct material.
This approach utilizes SFC's existing decommissioning plan.
Disadvantages
SFC does not have a commitment from an independent third party/custodian for
institutional controls as required by 10 CFR 20.1403, and it is not clear that it will ever be
able to obtain such a commitment. No NRC licensee with a privately owned site has
been able to obtain an independent third party/custodian for institutional controls, and
DOE ownership and control of such sites under Section 151 (b) is highly uncertain at this
time. The effort to negotiate an MOU with DOE to facilitate such transfers has been
unsuccessful because of DOE plans to transfer this responsibility to 001.
Continued delays in SFC acquiring an independent third party/custodian expend SFC's
limited financial resources needed for decommissioning.
Continued delays in implementing decommissioning under L TR increase unnecessary
regulatory burden and it might be inefficient for the staff to continue its safety and
environmental reviews with the feasibility of the L TR option so uncertain.
The staffs previous position that 11 e.(2) byproduct material can only be produced at a
uranium mill unnecessarily limits flexibility provided by the language in UMTRCA.
• If SFC is unable to obtain an independent third party/custodian, or have DOE assume
long-term care responsibilities, SFC contends would need to decommission the site for
unrestricted use under the LTR, which is substantially more costly.
Option 2: Classify Some SFC Waste as Section 11 e.(2) Byproduct Material and
Decommission Under 10 CFR Part 40, Appendix A.
Under this option, NRC would agree with SFC's proposal that the residual radioactivity produced
as a result of the front-end process at the uranium conversion facility can be classified as
byproduct material as defined in Section 11 e.(2) of the AEA. Under this option, SFC has stated,
in its January 5, 2001 , submittal, that 11 e.(2) byproduct material would be disposed of in a 10
CFR Part 40, Appendix A, tailings impoundment at the site. At the completion of remediation,
ownership and control of the 11e.(2) byproduct material cell would be transferred to DOE, under
Title II of UMTRCA.
The Commissioners -7-
In its proposal, SFC expects that DOE would also agree to assume control of any non-11e.(2)
byproduct material contained in the 11 e.(2) cell, either under the November 2000 interim
guidance set forth in Regulatory Issue Summary 2000-23, "Recent Changes to Uranium
Recovery Policy," or Section 1S1(b) of the NWPA. As with Option 1, DOE is not required to
assume control for non-11 e.(2) byproduct material that might be disposed of on site, either under
UMTRCA or NWPA 1S1(b). A DOE decision would be needed to determine the ultimate
disposition of non-11 e.(2) byproduct material. The remainder of the site would be released for
unrestricted use under the L TR and/or Appendix A of Part 40.6
SFC has proposed an onsite disposal cell, but classification of front-end wastes as 11 e.(2)
byproduct material could also lead to other remediation options. Mill tailings could be directly
disposed in an offsite mill tailings impoundment at an existing uranium mill, without having to
obtain DOE and LLW Compact approvals --conditions that are specified by the staff in
Regulatory Issues Summary 2000-23, for non-11 e.(2) byproduct materials. Similarly, if the non-
11e.(2) byproduct material at SFC could not be disposed in the tailings impoundment or left as
residual radioactivity under the restricted release provisions of the L TR, the amount of material
requiring offsite disposal would be reduced by classifying front-end wastes as mill tailings. SFC
has not proposed any of these alternatives, but would have the flexibility to choose them if NRC
agrees with their proposal for classification of 11 e.(2) byproduct material at the site.7 This
flexibility may be needed if DOE is unable or unwilling to accept non-11 e.(2) byproduct material
left on site. This flexibility would also enable SFC to develop options based on other
considerations --in addition to public health and safety --such as their feasibility, cost, and time
to implement.
Advantages
This option provides a more certain resolution of long-term control for most, if not all, of
SFC's waste, by using DOE as the long-term custodian under UMTRCA, if these wastes
are left on site. This option provides what may be the only viable path forward for site
decommissioning, given the uncertainties associated with implementing the existing
restricted release provisions of the L TR.
The staff position of 11e.(2) byproduct material under this option is more in line with the
language in UMTRCA than the previous staff position that considered mill tailings to be
produced at uranium mills, only.
6 Although SFC has not indicated which criteria would be used for areas outside of a disposal cell, cleanup of
these areas for unrestricted release might be more efficient if only one set of regulations, either the L TR or Appendix A of
10 CFR Part 40, were used. The L TR would apply to non-11e(2) byproduct material, and Appendix A to the mill tailings.
The release criteria for mill tailings and source material are both protective, but different in their approaches. SFC could
request an exemption from one set of regulations, assuming the exemption criteria would be met.
7 In fact, in SFC's April 30, 2002, response to staffs Request for Additional Information, SFC stated that it is
conducting studies to de-water raffinate sludges, and if successful, may ship them to a uranium mill.
The Commissioners -8-
NRC and DOE have experience in implementing the Part 40, Appendix A,
decommissioning process. NRC staff expects to be able to review this option more
efficiently.
DOE's Office of Environmental Management and Office of the General Counsel have
reviewed the proposal and indicated that DOE does not have any formal position on the
classification issue, and will accept NRC's designation (see Attachment 7).
The Cherokee Indian Nation, in a letter sent on April 11,2002, prefers this option, if
offsite disposal of all of the material is not possible.
This option gives SFC flexibility in choosing onsite/offsite disposal options by considering
the front-end wastes to be either 11 e.(2) byproduct material or source material. SFC can
choose the optimum alternative with this flexibility, taking into account factors such as
cost, public acceptance, and efficiency.
Disadvantages
• This option is not consistent with the previous staff position on the applicability of AEA
Section 11 e.(2) to the SFC site, which was focused on the location of the activity (i.e.,
not at a uranium mill) rather than on the milling process and the language of the statute.
This option is not consistent with the current source material license and would require
SFC to submit a request to amend its license to reclassify a portion of its waste,8 and to
substantially revise its existing Decommissioning Plan and submit it as a reclamation plan
under Part 40. Although there would be an increased burden on the licensee in the
immediate future, SFC considers it to be worth the investment to have a more certain
path for decommissioning.
The overall approval of the site decommissioning plan may be delayed because the new
license amendment request would offer an opportunity for a hearing to any affected
party. Presently, the identities of parties that may object to an UMTRCA disposal cell
(11e.(2) cell) at the SFC site are not known.
For onsite disposal of all wastes, SFC would need to obtain approval for disposal of the
non-11 e.(2) wastes in an 11 e.(2) cell, which is not guaranteed. The staff does not intend
to approve a decommissioning plan which includes an 11 e.(2) cell without the non-
11e.(2) material being addressed.9 This would require DOE, the State of Oklahoma,
8 The staff is currently considering an amendment to authorize SFC to decommission the facility under the
L TR. A hearing on the amendment is pending before a Presiding Officer. The hearing has been held in abeyance at this
time, as staff waits for completion of the environmental impact statement.
9 Before the staff could docket a license application for 11 e.(2) materials, SFC would need to resolve its
approach for the non-11e.(2) material and DOE's acceptance of it in the 11e.(2) cell, if necessary.
The Commissioners -9-
and, potentially, Central LLW Compact approval, in addition to NRC approval.
Alternatively, SFC could propose that non-11e.(2) wastes be disposed offsite (to meet
the unrestricted release criteria in the L TR), attempt to leave the material onsite under
the restricted release provisions of the L TR, and/or provide another acceptable
approach.
10 CFR Part 40, Appendix A, does not have the public participation requirements of the
L TR. However, the staff expects that SFC would continue to actively engage the public,
given the interest of the public, local and State governments, and the Cherokee Nation in
the resolution of this license termination.
There is the potential for unknown and unintended consequences from this change in the
staffs position on the classification of this waste as 11e.(2) byproduct material. The staff
position limits the flexibility offered in this case to the milling process (Le., activities
involved with the extraction or concentration of uranium). The staff cannot foresee any
adverse consequences in this limited decision. The only other commercial conversion
facility in the U.S., the Honeywell plant at Metropolis, IL, currently does not perform
milling operations.10 The three other sites in the SDMP that are considering restricted
release, and in need of a third party/custodian, are clearly not involved in milling
activities, and therefore could not be considered for an 11 e.(2) byproduct material
classification of their wastes. Once the fuel cycle is beyond natural uranium oxide, and
the conversion processes take place, the milling process is clearly completed. Although
the staff is mindful of a concern that there may be unintended consequences from Option
2, each case must be considered on its own merits to determine if the milling process is
involved . If, however, other licensees were to argue for additional flexibility in
classification of their wastes, in order to reduce disposal costs, for example, it is possible
that schedules for remediating sites could be affected and additional staff resources
would be needed to address any licensee proposals.
The staff believes this option is viable, notwithstanding the EDO's 1993 view. If the Commission
extends 11 e.(2) byproduct material treatment to the SFC front-end waste, the waste would then
be classifiable as both source material, because of its uranium and thorium content, and 11e.(2)
byproduct material, because of the process by which it was created. In a similar situation at the
Stepan Chemical Company site in Maywood, New Jersey, the staff, in a September 20, 2001,
letter to Envirocare of Utah, Inc., classified material that could be both source and 11e.(2)
byproduct material, as 11 e.(2) byproduct material.
Two staff members submitted a DPV on an earlier draft of this paper that recommended Option
2. A Panel evaluated their submittal and prepared the report in Attachment 8. Attachment 9
contains the DPV. The staff continues to believe that Option 2 is viable. The staff has
addressed the recommendations of the DPV Panel in this revised paper.
10 Although uranium milling was not performed at Honeywell in the recent past, the staff is determining whether
uranium milling was ever performed at this facility. If so, some wastes could be potentially be classified as 11 e.(2)
byproduct material. Honeywell has not indicated that it would pursue this classification with NRC.
The Commissioners -10-
COORDINATION:
OGC has reviewed this paper and has no legal objection. The hearing pending before the
Atomic Safety and licensing Board (ASLB), regarding SFC's decommissioning plans, does not
involve any issue related to classification of material at the Gore site as Section 11 e.(2)
byproduct material. Thus, no separation-of-function issues are raised by this paper.
RECOMMENDATION:
Both options are legally viable and protective of public health and safety and the environment.
Based on the above considerations, and after weighing the advantages and disadvantages of
the options, the staff recommends that the Commission approve Option 2 --that SFC front-end
waste can be classified as Section 11e.(2) byproduct material.
Attachments:
1. Background information
2. Staff memo to Commission on SFC Plan, 1993
IRA by CPaperiel/o Acting Fori
William D. Travers
Executive Director
for Operations
3. SFC June 2000 slide proposal to categorize waste as 11e.(2)
4. SFC January 2001 Proposal to classify waste as 11e.(2)
5. Uranium Milling Activities at Sequoyah Fuels Corporation
6. Decision-Making Framework
7. DOE letter re taking over site
8. DPV Panel Report
9. DPV
BACKGROUND INFORMATION
APPLICABILITY OF SECTION 11e.(2) OF THE ATOMIC ENERGY ACT TO MATERIAL AT
THE SEQUOYAH FUELS CORPORATION URANIUM CONVERSION FACILITY
In 1970, Sequoyah Fuels Corporation (SFC), a subsidiary of Kerr-McGee, began operation of a
facility near Gore, in southeast Oklahoma, to convert uranium oxide to uranium hexafluoride, to
prepare the material for enrichment. In early 1987 a second process was initiated to convert
depleted uranium hexafluoride from the U.S. Department of Energy (DOE) enrichment facilities to
depleted uranium tetrafluoride. In late 1987, ownership of the SFC facility was transferred to a
subsidiary of General Atomics (GA). After an uncontrolled release of nitrous oxide in November,
1992, SFC announced cessation of operations. After a December 1993, Commission meeting
with GA and SFC, the U.S. Nuclear Regulatory Commission (NRC) issued a Demand for
Information requiring information on how the facility would be decommissioned and how those
activities would be funded. SFC responded with its "Preliminary Plan for Completion of
Decommissioning," dated February 16, 1993. In Section 2.4 of this plan (, SFC stated that certain
activities at the site included the concentration of uranium from yellowcake, thereby resulting in
wastes that meet the definition of 11 e.(2) byproduct material, (Le., " ... any ore processed primarily
for its source material content."). Therefore, SFC argued, the facility would be more appropriately
decommissioned using the criteria in 10 CFR Part 40, Appendix A, which addresses the regulation
and decommissioning of uranium milling facilities. A July 6, 1993, Memorandum from James
Taylor, Executive Director for Operations, NRC, to the Commission (Attachment 2) addressed
SFC's argument stating that " ... hexafluoride conversion plants had never been considered as
uranium mills, and were not contemplated as such in the Uranium Mill Tailings Radiation Control
Act of 1978."
In March 1999, SFC submitted a decommissioning plan to remediate the site and terminate the
license in accordance with the 1997 License Termination Rule (L TR) in 10 CFR 20.1403 for
restricted conditions. The plan proposes that all waste would be placed in an on-site disposal
cell, the design of which is based on mill tailings disposal cell criteria in Part 40, Appendix A,
followed by institutional controls to be provided by a party "such as DOE." To date, however, the
State of Oklahoma, the U.S. Army Corps of Engineers, and the Cherokee Nation have declined
the opportunity to assume responsibility for institutional controls. DOE could accept ownership of
the site under Section 151 (b) of the Nuclear Waste Policy Act of 1982, but is exploring the transfer
of its land management responsibilities to another federal agency and is not interested at this time
in proceeding with section 151 (b) transfers. No other party has been identified to assume this
responsibility.
Because of perceived uncertainties associated with acquiring and implementing institutional
controls, in June 2000, representatives of SFC made a presentation to the staff (Attachment 3)
again asserting that, because of the similarity of the processing at SFC to that at uranium mills,
much of the waste at SFC (75-80 percent) should be considered byproduct material as defined in
Section 11e.(2) of the Atomic Energy Act. In January 2001, SFC submitted a formal request to
NRC to evaluate this concept (Attachment 4).
Attachment 1
E
A
~.-I'f""""'
SEQUOY AH FUELS
CORPORATION:
PROPOSED LICENSE
AMENDMENT FOR lle.(2)
BYPRODUCT MATERIAL
Presented by:
Anthony J. Thompson
Warren U. Lehrenbaum
David C. Lashway
Shaw Pittman
June 2000 1
!!. .. ,.
-I
J
BACKGROUND
III SFC OPERATES A NUCLEAR FUEL-
CYCLE FACILITY IN GORE,
OKLAHOMA ("THE FACILITY"),
PURSUANT TO NRC SOURCE
MATERIAL LICENSE SUB-IOIO.
III NRC HAS NOT YET APPROVED FINAL
SITE CLOSURE REQUIREMENTS FOR
THE FACILITY, NOR COMPLETED THE
PLANNED EIS EVALUATING SITE
CLOSURE OPTIONS. 2
L",__ _
i"
~
I
BACKGROUND (cont'd)
II THESE URANIUM RECOVERY
PROCESSES (e.g., THE ACID-LEACH
PROCESS) ARE SIMILAR TO THOSE
PROCESSES CONDUCTED AT A --"CONVENTIONAL" URANIUM MILL.!J
:1:-_____ _
4
I :1-1
.J
I
1 ,
BACKGROUND (cont'd)
II THE WASTE MATERIALS CREATED
FROM THE URANIUM RECOVERY
CONCENTRATION AND PURIFICATION
PROCESSES ARE lle.(2) BYPRODUCT
MATERIAL
-The Concentration and Purification Processes
Took Place at the Front-End of the Facility's
Operations Separately From, And Prior To, The
Conversion Of Concentrated And Purified Ore
Into UF6, Or The Reduction Of Depleted UF4 To
UF6•
5
J __________ _
:
BACKGROUND (cont'd)
-Different operations occurred in different areas
of facility, including (1) the recovery of
uranium through concentration and purification
processes, (2) the conversion of concentrated
and purified ore into UF6, and (3) the reduction
ofUF6 into UF 4.
-These different operations resulted in the
creation of separate and distinct wastes which
were segregated according to source.
6
-,
~ :::I
BACKGROUND (cont'd)
-Uranium Recovery: (1) soils in and around facility that are
contaminated with varying levels of uranium due to spills
of uranium ore and uranium bearing liquids from the
concentration and purification processes, (2) materials
resulting from the demolition of site structures and
equipment used to concentrate and purify source material
ore concentrates, (3) raffinate sludge produced as a result
of the SX concentration and purification process at the
front-end, and (4) chipped pallets that were used to ship
source material ore concentrates to the facility are lle.(2).·
7
,
l
I i I
BACKGROUND (cont'd)
-Conversion: debris from building and structures and
equipment used for the conversion and reduction
processes.
1, ____ _
8
I I : _J
1 1
l
BACKGROUND (cont'd)
II ISSUE OF WHETHER WASTES AT
CONVERSION FACILITY CAN BE 11E.(2)
HAS ONLY BEEN ADDRESSED ON A
FACILITY BASIS (i.e., MILLS VS.
CONVERSION FACILITIES).
-SFC Preliminary Plan for Completion of
Decommissioning (Feb. 16, 1993): SFC advanced
suggestion that its Facility be remediated as an 11e.(2)
byproduct material disposal site, with the application of
10 C.F .R. Part 40, Appendix A site closure criteria.
9
I ,---.-.---------------------------------------
BACKGROUND (cont'd)
-1980 GElS at A065:
"Comment: The inclusion of uranium hexafluoride
and other plants under the provisions of this rule is
proper, since they do indeed have similar waste
disposal problems."
"Response: With one exception, only source and
byproduct material produced by the extraction or
concentration of source material from ores is
governed by the regulations being implemented in
conjunction with this statement ....
11
~
,
=1
BACKGROUND (cont'd)
-The Staff response here is consistent with SFC's
proposal as it focuses on the nature of the process
involved (i.e., extraction or concentration vs . . converSlon.
-Addressing SFC's uranium recovery wastes
separately is not inconsistent with, just different
from, past treatment.
12
~
=-9
BACKGROUND (cont'd)
- A facility vs. facility approach results in the
reasonable conclusion that conversion facilities are
not conventional uranium mills.
-However, front-end uranium recovery processes at
the SFC Facility have the same purpose as and are
similar (SX) to uranium mill processes.
-The SX process is essentially an extension of the
milling process to ensure on-spec material.
13
~
. -l
1
BACKGROUND (cont'd)
-If SFC had no front-end uranium recovery processes
and contaminated source material ore concentrates
were returned to a conventional uranium mill for
further concentration and purification, the
reprocessing wastes generated would
unquestionably be lle.(2) byproduct material.
14
~ .
1
BACKGROUND (cont'd)
II SFC's URANIUM RECOVERY WASTES
ARE IN ESSENTIALLY THE SAME
POSTURE AS URANIUM MILL
TAILINGS AT LICENSED URANIUM
MILLS PRIOR TO PASSAGE OF
UMTRCA IN 1978, EXCEPT THAT NOW
THERE IS A MATURE, EFFECTIVE
SITE CLOSURE PROGRAM IN PLACE.
15
~ I
1
.:....:J
BASES FOR CLASSIFICATION OF
FRONT-END WASTES AS 11e.(2)
II SFC's URANIUM RECOVERY WASTES
MEET THE DEFINITION OF lle.(2)
BYPRODUCT MATERIAL
-lle.(2) byproduct material is defined as:
"The tailings or wastes produced by the
extraction or concentration of uranium or
thorium fromE or~rocessed primarily for
its source material content."
42 U.S.C. 2014e.(2) (emphasis added).
16
-1
BASES FOR CLASSIFICATION OF
FRONT-END WASTES AS 11e.(2)
-The definition of 11e.(2) should be read broadly.
: See Kerr McGee v. NRC, 903 F.2d 1, 7 (D.C. Cir.
1990) ("It is clear ... That the definition ... was
designed to extend the NRC's regulatory authority
over all wastes resulting from the extraction or
f;n~~nirati~~71f source materials in the course of f ;
. the nuclear fuel cycle.").
C /C?G uc,../!/~2J 1,Is. UYI r:y u Ie, f~/ ~o fe,rr:'.?( c:-' s.Svc.
17
-1
BASES FOR CLASSIFICATION OF
FRONT-END WASTES AS 11e.(2)(cont'd)
-Thus, under the definition, three requirements must
~ be met for material to be lle.(2): (1) the material
must be produced by the extraction or concentration
of uranium, (2) the uranium or thorium must be
extracted from any ore, and (3) the ore must be
processed primarily for its source material content
in a nuclear fuel cycle facility. SFC's uranium
recovery wastes satisfy all three requirements.
1. SFC's uranium recovery wastes were
produced by the concentration of uranium.
18
1 .
9 I
--
BASES FOR CLASSIFICATION OF
FRONT-END WASTES AS 11e.(2)(cont'd)
-The term concentration is neither defined nor
explained in UMTRCA, its legislative history, or
NRC regulations. Therefore, we look to the
ordinary meaning of the words used, and that
meaning is conclusive. American Tobacco Co. et ale
v. Patterson et al., 456 U.S. 63, 68 (1982).
-The front-end wastes resulted from processes
meeting the definition of the term concentration.
See Webster's II New College Dictionary (1995).
19
-1
:.:..-:l I -I
~
BASES FOR CLASSIFICATION OF
FRONT-END WASTES AS 11e.(2)(cont'd)
-GElS supports conclusion that wastes generated
from concentration processes are lle.(2):
"Conventional uranium milling as used
herein refers to the milling of ores
primarily for the recovery of uranium;
it involves the processes of crushing,
grinding, and leaching the ore,
followed by chemical separation and
concentration of uranium."
20
~ ~
BASES FOR CLASSIFICATION OF
FRONT-END WASTES AS 11e.(2)(cont'd)
-Further, GElS supports conclusion that
~ concentration processes are milling:
I
l I
"The milling techniques currently used,
with such minor modifications as
increasing the concentration of acid
used in leaching or improving resins
for concentration of uranium, will
likely continue . . . ."
21
--:
BASES FOR CLASSIFICATION OF
FRONT-END WASTES AS 11e.(2)(cont'd)
-GElS includes section entitled "Concentration and
Purification Processes" and concludes these
processes are milling:
"Following the extraction of uranium values
from the ore by the acid leach or alkaline leach
process, the resulting impure and dilute leach
solutions have to undergo concentration and
purification as a prerequisite to the production
of a final, high-grade, uranium product. A
number of major techniques are used to effect
this stage of the milling process. They are:
[IJon exchange ... [solvent extractioi(. ..
eluex process ... improved eluex process ... " 22
1
=J
I
-1 ~ ---.l
j
I
BASES FOR CLASSIFICATION OF
FRONT-END WASTES AS 11e.(2)(cont'd)
-For Processing to be "Milling" It Need Not Be
Physically Located at a "Conventional" Uranium
Mill. See GElS at 2.2.3, 12.5 (heap leaching is
milling and produces 11e.(2) wastes); Mem. from
Howard Shapar, Executive Legal Director, NRC to
Chairman Ahearn, NRC (April 28, 1980) (ISL
mining underground is milling, is subject to NRC
jurisdiction, and produces 11e.(2) wastes).
-Thus, SFC's SX uranium recovery processes at SFC
can be considered a milling process.
23
~ !
~ I
l
BASES FOR CLASSIFICATION OF
FRONT-END WASTES AS 11e.(2)(cont'd)
II Milling is defined as:
Uranium Milling means any activity that
results in the production of by-product
material as defined in this part.
Ke> Cow0o ... ~ "7J If-
10 C.F.R. § 40.4.
24
1
; BASES FOR CLASSIFICATION OF
i --1 ]
• ~ -I I •
FRONT-END WASTES AS 11e.(2)(cont'd)
2. SFC's Front-End Wastes Were Produced
From Processing Ore.
Term ore is to be interpreted broadly under
UMTRCA and licensed source material ore
concentrates which are concentrated and
purified by SFC's front-end processes fit
within scope of that term .
NRC has noted:
"The fact that the term "any ore" rather than
"unrefined and unprocessed ore" is used in the
definition of lle.(2) byproduct material imply
25
~
==1 1
j .
,
j
I
BASES FOR CLASSIFICATION OF
FRONT-END WASTES AS 11e.(2)(cont'd)
[sic] that a broader range of feed materials
could be processed in a mill, with the wastes
still being considered as lle.(2) byproduct
material."
"Legislative history confirms the validity of a
broad interpretation of the term "any ore."
57 Fed. Reg. 20, 532.
26
1 ~ ,
=;
BASES FOR CLASSIFICATION OF
FRONT-END WASTES AS 11e.(2)(cont'd)
-Implicit in the definition of "unrefined and
unprocessed ore" in 10 C.F.R. 40.4 and exemption
for it in 10 C.F .R. 40.13 is that there is "refined and
processed ore" that can be milled with the resultant
waste designated lle.(2). Indeed, licensed source
material ore (e.g., Cabot materials and Cotter
concentrates milled at IUC), would qualify as
"refined and processed ore" and the waste from
processing these materials are unquestionably to be
11 e.(2). 7¢4~-y6
27
----------------------------------------------------------------------------------------------------------------------.-----
i
~
l I
! I ,
1 • I
BASES FOR CLASSIFICATION OF
FRONT-END WASTES AS 11e.(2)(cont'd)
-Concentration was required because material received
at SFC facility historically varied in purity (from a
low of about 65% uranium by weight to as high
as 83%, depending on the supplier).
-Impurities had to be removed prior to
conversion because they could plug the
fluidized bed reactors used in conversion
process and/or could result in the production of
off-spec material. ~g--9~ ~ -= iF~ ,.
/?~to-z.e,"Q(:/' ? 9 9..5>~ -v-
29
1 i I .
i
~
1
~
BASES FOR CLASSIFICATION OF
FRONT-END WASTES AS 11e.(2)(cont'd)
• NRC ROUTINELY LICENSES PORTIONS OF
FACILITIES DIFFERENTLY.
-Fuel-cycle Facilities, Including SFC's, Routinely
Have Multiple Licenses or License Conditions for
Different Types of AEA Materials to Which
Different Regulatory Standards Apply (e.g., Cabot,
HMT) . -/ ~ r: 'r QA;'-J<-~ ~"P??)/C
-NRC Licenses Portions of Non-fuel Cycle
Facilities.
30
i .
1 .
J --'
1
BASES FOR CLASSIFICATION OF
FRONT-END WASTES AS 11e.(2)(cont'd)
_ SFC Front-End Wastes Are Physically,
Chemically, and Radiologically Similar to
"Conventional" Mill Tailings.
-See GElS at B-11-14. (Handout)
-See EPA's Uranium TRD at 43-44.
-Primary waste stream from front-end processes was
raffinate from the SX line.
31
~
~
BENEFITS OF DESIGNATION OF
MATERIAL AS 11 e.(2)
-About 80% Of Wastes Result From Front-end
Processes.
-Well Understood And Workable 10 C.F.R. Part 40,
Appendix A Criteria Would Apply.
-Dispute About On-site vs. Off-site Disposal With State
Of Oklahoma Would Be Resolved.
-Clean-up Soils To Standards In Criteria 6 to allow
Release For Unrestricted Use.
32
~
I
J
---1
BENEFITS OF DESIGNATION OF
MATERIAL AS 11e.(2) (cont'd)
-Waste Disposal Cell Would Be Subject To 1,000
Year Closure Requirement (Which Assumes Over
Designed "Passive" Controls And No "Active"
Maintenance ).
-Transfer Property To Mandatory Long-term
Government Custodian Licensed In Perpetuity By
NRC.
-More Flexibility With Respect To Achieving The
Remediation Of Radioactive And Non-radioactive
Constituents In The Groundwater. (e.g., Ability To
Propose ACL's.)
33
~
---, ,
BENEFITS OF DESIGNATION OF
MATERIAL AS 11e.(2) (cont'd)
-Applicability Of Clearly Defined Radiation
Protection Standards For Radon Emissions Which
Provide "An Ample Margin Of Safety For The
Protection Of Public Health."
-No Cost To The Government.
34
January 5, 2001
Page 2
We look forward to your response to this request. We note, in closing, that SFC believes that
designation of the wastes resulting from the front-end processes as byproduct material will allow for
the development ofa cost-effective decommissioning plan and more importantly, closure of the site
in a manner that ensures protection of the public and health and safety.
Thank you for your consideration.
Enclosures
cc: Michael Weber
Philip Ting
John T. Greeves
Joseph 1. Holonich
Daniel M. Gillen
fil4l1i;
John H. Ellis
President
Sequoyah Fuels Corporation
James C. Shepherd, NRC Project Manager
James Lieberman
Stuart A. Treby
Charlotte E. Abrams
Phyllis A. Soebel
Mike H. Fliegel
Steve Jantzen
David Mullon
Mike Broderick
L INTRODUCTION
Sequoyah Fuels Corporation (SFC) operates a Nuclear Regulatory Commission (NRC)
licensed nuclear fuel-cycle facility and is evaluating requesting an amendment to NRC Source
Material License SUB-IOlO to authorize the handling and disposal of byproduct material, as
defined in section 1Ie.(2) of the Atomic Energy Act of 1954 (AEA), as amended by the Uranium
Mill Tailings Radiation Control Act of 1978 (UMTRCA), 42 U.S.C. §§ 2011 et seq.
Specifically, SFC seeks to dispose of wastes at its Gore, OkJahoma facility (hereinafter, the
Facility) the majority of which were generated from uranium recovery processes involving the
concentration and purification of licensed source material ore concentrates. These concentration
and purification processes took place at the front end of the Facility's operations and prior to,
and separately from, the conversion of concentrated and purified ore into UF6, or the reduction
of depleted UF 4 to UF6. While in the past SFC's license has not contained a provision permitting
the possession and disposal of 11e.(2) byproduct material with respect to the waste material
generated from the uranium concentration and purification processes at the Facility, a recent
review of the provisions of the AEA, NRC regulations, guidance documents, and policy
statements indicates such an amendment is appropriate.
The timing of this request is favorable because it comes prior to NRC approval offinal
site closure requirements for the Facility. Indeed, it comes prior to the completion by NRC of a
planned environmental impact statement (EIS) evaluating site closure options and, therefore, also
prior to the initiation of major site cleanup activities by the licensee. In this respect, SFC's front-
end concentration and purification wastes are presently in essentiall y the same status as uranium
mill tailings at licensed uranium mills just prior to passage of UMTRCA in 1978. UMTRCA
was enacted to address concerns about NRC's lack of authority over the disposal and long term
control of the tailings (which were regulated during operations under the mills' source material
licenses), after the cessation of milling operations. The passage ofUMTRCA and development
of its implementing regulations addressed those post-operations concerns about uranium mill
tailings and other milling wastes prior to any of the existing, licensed (i.e., activelTitle II)
facilities having their licenses terminated. An affirmative decision on a license amendment
request for SFC will have essentially the same impact on the regulatory treatment ofSFC's
11e.(2) (concentration and purification) wastes as UMTRCA did on the regulatory treatment of
uranium milling wastes after its passage in 1978, except that the Title n regulatory program
developed subsequent to the passage ofUMTRCA is now (some twenty plus years later), a
mature, effective site closure program. I
The justification for a license amendment is compelling for a variety of reasons, not the
least of which is that the majority of the wastes at the site are removed from the obvious
regulatory limbo where they had resided prior to promulgation of NRC's 1997 decommissioning
and decontamination (D&D) rules, 62 Fed. Reg. 39058 (July 21, 1997), and where, to some
extent, they still reside as illustrated by the current litigation before an Atomic Safety and
Licensing Board Presiding Officer.2 For example, although the 1997 0&0 rules are currently
applicable to 0&0 activities at the SFC site (absent approval of an SFC license amendment)
I We note that there is a pending controversy as to whether or not certain FUSRAP wastes, which were
generated at facilities that were not licensed by NRC prior to the effective date of UMTRCA, are lle.(2)
byproduct material. Since the SFC facility is licensed by the NRC and the concentration and pUrification
wastes at issue here were generated pursuant to that license, any resolution of the pending controversy
would be irrelevant to the SFC wastes.
2 See In the Matter ofSequoyah Fuels Corporation, (Gore, Oklahoma), NRC Dkt. No. 40-8027-MLA-4.
2
their implementation will be a matter of first impression to the Staff, the licensee, and the Board.)
Additionally, the current ASLB proceeding effectively addresses the application of 10 C.F.R.
Part 40, Appendix A Criteria only as persuasive precedent (i.e., best available control technology
(BACT» for onsite closure rather than having Appendix A as the controlling regulatory program
and NRC Uranium Recovery Section Staff as primary rather than "consulting" reviewers.
Granting SFC a license amendment resolves most of the substantive issues in the ASLB
proceeding by explicitly defining the regulatory requirements for long term stabilization on-site
of the Ile.(2) waste including: the control of radon emissions, the surface soil cleanup standards
for radium, uranium and thorium, the applicable ground water corrective action requirements for
both the radiological and non-radiological constituents of the lle.(2) material in groundwater, a
mandatory governmental custodian for the site subject to NRC license in perpetuity, as well as
the mechanism for funding long-term monitoring and surveillance and even active maintenance
should it be deemed necessary. Additionally, Section 84(c) ofUMTRCA, as reflected in tbe
Introduction to 10 C.F.R. Part 40, Appendix A, provides the licensee and NRC staff with
significantj7exibility to address site specific conditions as long as equivalent protection of public
health and the environment is reasonably assured. Finally, Appendix A has been demonstrated
to be workable. NRC's Uranium Recovery Section staff and Title II licensees understand the
performance orientation of the Appendix A Criteria and the related guidance (e.g,. that for
surface stabilization and alternate concentration limits (ACL's», so it will not be necessary to
) For example, a variety of issues including restrictive use and durable vehicles for assuring any necessary
long-term funding and long-term site custodianship. will be matters ofjirst impression in that proceeding.
3
reinvent the wheel to address final disposal of the majority of the decommissioning wastes at the
SFC facility in a timely and cost-effective manner as would be the case under the D&D rule.
As a result of the timing of SFC's license amendment and the underlying legal and policy
justifications, favorable action by NRC will not, in fact, result in conflict with past practices. In
effect, it merely results in a new and different approach to the majority of wastes at the site. As
the record will demonstrate below, NRC does not have to reverse any formal decisions regarding
the nature of a conversion facility's wastes but rather can take a different approach to a clearly
definable portion of the wastes generated by activities (concenJration and purification) that at a
conventional mill would unquestionably generate lle.(2) byproduct material. 4
Final site closure and license termination will be accomplished most appropriately for at
least the concentration and purification milling wastes (approximately 77% by volume and 92%
of the total radionuclide inventory of the waste at the site) pursuant to the regulations set forth in
10 C.F.R. Part 40, Appendix A for 11e.(2) byproduct material. Accordingly, an amendment to
SUB-IOlO to permit SFC to handle and dispose of lle.(2) byproduct material generated by its
front-end uranium recovery (as opposed to its uranium conversion) processes at the Facility is
appropriate.
4 Indeed, although not at a conventional mill, NRC has recently confirmed that certain uranium recovery
wastes (i.e., seven (7) chipped wooden pallets contaminated by licensed source material ore concentrates
[i.e., yellow-cake» at a conversion/acUity are lle.(2) byproduct material suitable for disposal in a
licensed lle.(2) facility . See Letter from John J. Surmeier, NRC, to William Paul Goranson, Quivira
Mining Company (Nov. 10, 1999).
4
II. BACKGROUND
SFC operates a nuclear fuel-cycle facility licensed by NRC at u.s. Interstate-40 and
Oklahoma State Highway 10 (post Office Box 610). Gore. Oklahoma 74435. SFC engaged in
different operations in different areas of the Facility. pursuant to NRC Source Material License
SUB-l 0 1 0, including (1) the recovery of uranium by concentration and purification processes,
(2) the conversion of concentrated and purified uranium ore into VF6 between the years of 1970
and 1993, and (3) the reduction ofUF6 into UF4 from February 1987 until 1993 . Again, as will
be demonstrated, these operations occurred in separate areas within the processing buildings or,
in some cases, within separate facilities, and created separate and distinct waste streams.
Operations at the Facility can generally be summarized as follows. Following receipt of
licensed source material ore concentrates at the Facility, the ore was subjected to concentration
and purification processes to further purify the licensed source material ore concentrates. These
concentration and purification processes were essentially identical to uranium recovery
processes conducted at conventional uranium mills. The purpose of the concentration and
purification processes was to control the grade of materials entering the conversion process so as
to avoid the contamination of the conversion processing system which, if permitted to occur,
would lead to the production of off-specification material.
Following the concentration and purification processes, the materials were transferred to
the conversion facility which produced ·high purity UF6 using the purified source material ore
concentrates as feed material (hereinafter, UF6 Facility).
Also located at the Facility was a wholly separate reduction facility which produced UF4
using depleted VF6 as feed material (hereinafter, DUF4 Facility).
5
In addition to the facilities for concentration and purification, conversion, and reduction,
the SFC site also includes: (1) a storage area for the licensed source material ore concentrates
received from conventional uranium mills; (2) a licensed source material ore concentrate
sampling facility; (3) a bulk storage area for chemicals such as ammonia (NH3),
tributylphosphate-hexane solvent, and hydrofluoric (HF), nitric (HNOJ), and sulfuric (H2S04)
acids; (4) a facility for electrolytic production of fluorine from HF; (5) treatment systems and
storage ponds for both radiological and non-radiological liquid effiuent streams; and (6) a facility
for the recovery and beneficial use of ammonium nitrate solution (which results from the solvent
extraction system) as fertilizer on SFC-owned land.
The Facility occupies approximately 8S acres of the 600 acre site. The 85-acre Facility is
presented in more detail in Figure 3-1 ofSUB-IOIO. The total area under roofis comprised of
manufacturing, warehousing, and office space in seven (7) principal buildings. The Main
Process Building (MPB) contains administrative offices, a process laboratory, the sampling
plant, the major conversion processing operations, fluorine generation operations, a utility area
and a maintenance area. About 200 feet west of the MPB is the Miscellaneous Digestion
Building (MOB), where yellowcake slurry was received and processed. Facilities in this
building enabled slurry to be dissolved in nitric acid for sampling before being piped into the
concentration and purification circuit in the Solvent Extraction Building (SEB), which is located
about 150 feet west of the MPB. A one-story warehouse about 200 feet north of the MPB
provides storage for spare mechanical equipment. A solid waste sorting building north of the
MPB provides sorting and waste handling capabilities. About 400 feet north of the MPB is the
DUF4 Facility. In October 1990, SFC added an Administration Building located about 100 feet
east of the MPB.
6
Additional facilities include the following: a licensed source material ore concentrates
(yellowcake) drum storage area, an electrical substation, UF6 cylinder storage area, tank farm for
liquid chemicals and fuel oil, cooling tower for waste heat dissipation, sanitary sewage facilities,
retention ponds for calcium fluoride sludge, retention ponds for processing raffinate (the
byproduct from the licensed source material ore concentration/purification by solvent extraction
(SX) process which contains radioactive material) into fertilizer and raffinate sludge, a raffinate
sludge concentration and loading facility, retention ponds for fertilizer, and a reservoir for an
emergency water supply. These areas are shown on Figure 3-1 ofSUB-IOIO,
By letter dated February 16, 1993, SFC notified NRC of its decision to suspend all
production operations permanently, including uranium recovery by concentration and
purification processes and subsequent conversion operations, and to decommission the facility,
Since July 1993, the concentration andpurijicalion processes, the UF6 conversion processes, and
the DUF4 reduction processes have been shut down.
For further information regarding the facility operations, see Chapter 10 of License SUB-
1010 which contains a description of the facility and the areas where licensed materials were
processed and handled. Figure 3-1 shows the general arrangement of the protected area of the
facility. Also, Chapter 16 of License SUB-IOlO provides a description of the different facility
processes.
m. MA TERIAL SOURCES, COMPOSmON AND VOLUMES
Table 1 lists the various types of waste materials, estimated volumes and radionuclide
contents SFC expects to have to address during Facility decommissioning. The table also
defines the portion of each waste type attributable to licensed source material ort! concentration
7
and purification processes that should be designated as 11 e.(2) byproduct material. The
following is a brief description of the sources and composition of each waste type.
Soils in and around the facility, including soils in the interim soils storage cell, that are
contaminated with varying levels of uranium, make up the largest volume of waste at the
Facility. Contamination of most of these soils resulted directly from spills of uranium ore and
uranium bearing liquids from the concentration and purification processes at various times
during the operating life of the facility. SFC estimates that two (2) to five (5) million cubic feet
of soil, depending on the cleanup criteria prescribed by NRC, will be excavated and placed in the
disposal cell. Soil contamination, primarily from natural uranium, exists at depths ranging from
a few inches to as much as 20 to 30 feet near the MPB. These contaminated soils are located
under and around the MPB, SEB, MDB, the raffinate treatment and storage ponds, source
material ore concentrates storage areas and drum/scrap storage areas. A detailed description of
the contaminated soil types, locations, quantities, contaminant levels, etc., can be found in SFC's
Site Characterization Report, which was submitted to NRC on December 18, 1998. SFC
estimates that almost 90% of the waste soil volume at the site will be lle.(2) byproduct material.
Materials resulting from the demolition of site structures and equipment comprise a
second waste type found at the Facility. Approximately 50% of the volume of this waste
originates from the buildings and equipment used to concentrate and purify the licensed source
material ore concentrates and, therefore, will be 11 e.(2) byproduct material.
Raffinate sludge was produced as a result of neutralizing the acidic raffinate stream from
the SX concentration and purification process with anhydrous ammonia. It is analogous to the
slimes generated at a uranium mill and will be lle.(2) byproduct material. Similarly, the pond 2
8
residue, the pond 1 spoils pile, the clay liners from ponds 3E and 4, and the clarifier clay liners
each contain varying amounts ofraffinate sludge and will be lle.(2) byproduct material.
Solid waste burials and drummed contaminated trash are wastes that were generated
throughout the facility. Approximately fifty percent of this material came from the
concentration andpurijication process areas and will be lle.(2) byproduct material.
Crushed drums and chipped pallets originated from licensed source material ore
concentrates shipments to the facility and will be lle.(2) byproduct material. 5 Similarly,
contaminated sludges from the Sanitary Lagoon, Emergency Basin and North Ditch as well as
the underlying soils, are also attributable in part to the concentration and purification processes
and will be 11e.(2) byproduct material.
Thus, 77% by volume of and 92% of the radionuclide inventory in the wastes will be
lle.(2) byproduct material.
In contrast to the wastes discussed above, wastes resulting from the conversion and
reduction processes will not be 1Ie.(2) byproduct material. For example, calcium fluoride
sludges, clay liners from the calcium fluoride sludge impoundments, structures and equipment
used for conversion and reduction processes, soils contaminated by activities associated with
conversion and reduction processes, and scrap metal originating from conversion and reduction
facilities will not be byproduct material. In total, the non-byproduct waste materials are
estimated to be approximately 23% of the total volume of decommissioning wastes at SFC's site
5 We note again that wood chips from wood pallets used to handle and store 55-gallon drums of licensed
source material ore concentrates at the Allied Signal processing facility were designated as Ile.(2)
byproduct material and were permitted to be disposed ofat the Quivira-Ambrosia Lake lle.(2) disposal
facility. See Letter from John 1. Surmeier, NRC, to William Paul Goranson, Quivira Mining Company
(Nov. 10, 1999).
9
---=
and approximately 8% of the total radionuclide inventory in the various waste streams. Details
ofthe waste volume and radionuclide contents of the major waste types at the site and SFC's
estimate of the distribution between Ile.(2) byproduct material and non-byproduct material
wastes are contained in Table I.
IV. THE FACTUAL, LEGAL, AND POLICY BASES LEADING TO THE
DETERMINATION THAT CERTAIN URANIUM RECOVERY WASTES
AT THE FAOLITY ARE llE.(l) BYPRODUCT MATERIAL
A. Introduction
The issue of whether 11e.(2) byproduct material is generated at conversionjacililies was
addressed on a general or macro basis in the past, but only in terms of entire facilities (i.e., mills
vs. conversionjacilities/plants) as opposed to processing activities (i.e ..
concentration/purification vs. conversion). Specifically, SFC had at one time advanced a
suggestion that the Facility be remediated as an 11e.(2) byproduct material disposal site. thereby
allowing the application of the 10 C.F.R. Part 40, Appendix A site closure criteria. See SFC
Preliminary Plan for Completion of Decommissioning (Feb. 16, 1993); see a/so Memorandum
from James Taylor, EDO, NRC, to NRC Commissioners (July 6, 1993). The NRC Office of
General Counsel responded to SFC's suggestion with "injormal views" that "hexafluoride
conversion plants had never been considered as uranium mills, and were not contemplated as
such in [UMTRCA]." [d. (emphasis added). Accordingly, OGC asserted that "[t]he uranium
contaminated decommissioning wastes at [SFC] do not fit the definition of lle.(2) byproduct
material and thus fall outside the coverage of the Act." Id.
This issue was also addressed by NRC in the 1980 GElS. Specifically, the GElS states:
Comment: The inclusion ofuranium hexafluoride and other plants
under the provisions of this rule is proper, since they do indeed
have similar waste disposal problems. (79)
10
Response: With one exception, only source and byproduct
material produced by the extraction or concentration of source
material from ores is governed by the regulations being
implemented in conjunction with this statement, in accordance
with the intended scope of this effort and the authority provided
under PL 95-604, as amended. The exception is the prohibition of
major construction before completion and documentation of a full
environmental assessment. This requirement is being made
applicable to mills and other major fuel cycle facilities.
GElS at A-65 (emphasis added). Although the comment addresses plants, read carefully, the
response is consistent with SFC's proposed amendment as it indicates that concentration process
wastes are subject to regulation under 10 C.F.R. Part 40, Appendix A, but implies that
conversion plants are not.
Afacility versus facility or plant versus plant analysis results in a predictable general
conclusion that conversionfacUities/plants are not uranium mills. The conclusion is different
when careful analysis is focused on the front-end uranium recovery concentration and
purification processes (and the wastes generated thereby) separately from the conversion and
reduction processes at SFC's conversion plant. Since the concentration and purification
processes and wastes generated therefrom at the SFC conversion plant have never been analyzed
separately before, to do so now is not inconsistent with past practices, rather it is just a different
way of looking at the issue.
Additionally, a series of relatively recent events reflect the Commission's reexamination
of the scope of uranium recovery (UR) activities that produce Ile.(2) byproduct material, The
National Mining Association (NMA) submitted a White Paper to the NRC in 1998 addressing a
variety of regulatory issues of concern to NRC UR licensees, including specifically the definition
and designation of certain UR waste materials as Ile.(2) byproduct material under the AEA, as
II
amended by UMTRCA. The White Paper detailed the legislative history of section lle.(2) and
discussed the scope of NRC's jurisdiction to regulate such materials. Following public hearings
on the issues raised in the White Paper, NMA submitted the White Paper Addendum in August
1999, which focused on a pre-1978/post-1978 11e.(2) byproduct material issue, (i.e .. whether
uranium production wastes satisfying the definition of 1 Ie.(2) byproduct material produced for
the Manhattan Engineering District (!v1ED) or Atomic Energy Commission (AEC) prior to 1978,
the date UMTRCA was enacted, are properly considered lle.(2) byproduct material).
Building on treatment of one issue in the White Paper. in 1998, International Uranium
(USA) Corporation (lUC) filed a Petition requesting that the Commission reexamine its policy
on processing alternate feed (i.e .. ore other than conventional, natural ore) for its uranium
content in a licensed mill such that the wastes generated are properly considered lle.(2)
byproduct material. That petition was followed shortly by litigation which involved that core
issue. In the Matter of International Uranium (USA) Corporation, Docket No. 40-8681-MLA-4
("Ashland 2"). Ultimately, the Commission issued a decision in Ashland 2 that focused largely
on the scope of the definition of 1Ie.(2) byproduct material and its necessarily close relationship
with the Commission's definition of the term ore that effectively modified the then existing
alternative feed policy. More recently, addressing perhaps the most fundamental issue raised in
the NMA White Paper, the Commission reversed a policy which stood for twenty (20) years
regarding jurisdiction of non-Agreement States over the non-radiological components of 1 Ie.(2)
byproduct material at licensed uranium recovery sites. See Memorandum from Annette Vietti-
Cook, Secretary, NRC to William D. Travers, EOO, NRC (Aug. 11,2000). This decision has
implications for Oklahoma's interest in the final site closure determination for the SFC facility.
12
These Commission actions are examples ofa recent trend on the part of the Commission
to reexamine its policies and interpretations, and where appropriate, to think creatively, (i.e.,
"outside the standard regulatory boxes"), about its existing rules, policies, procedures and
guidance consistent with its Strategic Assessment Rebaselining Initiative (SARI). The SARI
called for the reassessment of NRC activities to redefine the basic nature of the work of the
agency and the means by which that work is accomplished, and to apply to these redefined
activities a rigorous screening process to produce a new set of assumptions, goals, policies, and
strategies for NRC. See U.S. NRC, Strategic Planning Framework (Sept. 16, 1996) at OSI 2.
This SARI-like approach is reflected in decisions which demonstrate that, where necessary, NRC
will change its policies. See Kansas Gas & Elec. Co., (Wolf Creek Generating Station, Unit \).
49 NRC 441, 460 (1999) (referencing Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S~ 837, 863-64) (Agency interpretations "are not" 'carved in stone' but
rather must be subject to re-evaluation of their wisdom on a continuing basis."); see also In the
Matter of International Uranium (USA) Corp .• slip op. at 15, citing Envirocare of Utah v. NRC,
194 F.3d 72, 78 (D.c. Cir., Oct. 22, 1999) (The agency is free to choose a new interpretation
which may "represent a sharp shift from prior agency views or pronouncements," so long as the
agency gives "adequate reasons for changing course."). At least in part because of these events,
and indeed in keeping with them, SfC was prompted to take another look at the definition of
l1e.(2) byproduct material as it relates to those portions of its Facility that engaged in processes
that are essentially identical to the tail-end uranium recovery concentration and purification
processes at a conventional uranium mill. This reevaluation indicates that if these same
concentration and purification processes were carried out at a conventional mill site, the wastes
would unquestionably be 11e.(2) byproduct material. Because these uranium recovery processes
13
take place prior to, and distinctly separate from. conversion processes at SFC's facility, logically,
factually and legally, they can, and should, be considered uranium recovery (by further
concentration and purification) wastes that result from processing licensed source material ore
concentrates primarily for their source material content. That is, the concentration and
purification processes that occurred at the Facility were essentially an extension of the milling
process or, said another way, were milling processes not physically located at a conventional mill
facility. Importantly, as noted below, the definition of milling in 10 C.F.R. Part 40 was carefully
tailored by NRC to include milling at physical locations other than at conventional uranium mill
facilities.
Finally, as a matter of legal protocol, it is appropriate for the licensee to propose that the
Commission reconsider the proper licensing mode for the wastes generated from the front-end
uranium recovery concentration and purification processes, since licensees generally have the
primary responsibility for ensuring that the nuclear materials are managed to satisfy all
applicable regulatory criteria under the AEA regulatory system, including specifically, proposing
license amendments. See NRC NUREG-13S0, Vol. 7 at 2. Further, SFC believes that it is
particularly appropriate to do so at this time, prior to completion of an EIS and prior to NRC
approval of final license termination plans for the Facility. Indeed, given that Congress' primary
focus in creating a new class of AEA-regulated waste material (i.e. lle.(2) byproduct material)
in UMTRCA was on the long-term control and disposal of such wastes and SFC is in the process
of evaluating final site closure options for NRC approval, now is an excellent time to address
those issues before events would make such a determination more difficult and perhaps
impracticable.
14
As noted above, granting SFC a license amendment will effectively resolve a whole
series of issues that until 1997, and to some extent even now, have resulted in the wastes at the
Facility being placed in a sort of regulatory "limbo." Specifically, SFC estimates that
approximately 77% by volume of the process wastes and contaminated soils and 92% ofthe total
radionuc1ide inventory in wastes at the site are 1 le.(2) byproduct material, which, under a license
amendment, will be subject to the well-understood and mature Appendix A regulatory program.
This established regulatory program answers the following questions: the criteria for restricted
versus unrestricted use~ long term control standards (i.e., 1000 years without active maintenance
requirement); radiation protection standards (i.e. the radon exhalation limit that provides an
ample margin of safety for public health); a mandated perpetually licensed Government
custodian; and groundwater corrective action criteria for both radiological and non-radiological
constituents of I Ie.(2) byproduct material in ground water. In addition, as a practical matter, the
grant of a license amendment will lead to timely final site closure without the need for wholesale
. revisions to SFC's proposed license termination plan which relies significantly on 10 C.F.R. Part
40, Appendix A Criteria as BACT rather than as controlling regulatory criteria. Finally, given
the previous high profile, contentious debate at the Commission level regarding concerns that
SFC would not have adequate financial resources to properly decontaminate and decommission
the facility, resolving disposal issues for 77% of the waste at the site (with related potential
alternatives for the other 23% to be discussed separately) will assure that adequate resources
exist to promptly close the site and terminate the license.
B. All Wastes Generated As A Result Of Uranium Recovery from
Concentration and Purification Processes AIe 11 e. (2) Byproduct Material
In evaluating whether materials qualify as Ile.(2) byproduct material, the appropriate
starting point is the definition of "byproduct material" as set forth in Section Ile.(2) of the AEA.
15
That definition provides that the following types of materials constitute II e.(2) byproduct
material:
The tailings or wastes produced by the extraction or concentration
of uranium or thorium from any ore processed primarily for its
source material content.
42 U.S.C.§ 2014e.(2) (emphasis added).
As this definition reveals, there are three elements that cause a material to be considered
Ile.(2) byproduct material. First, the material must be produced by the extraction or
concentration of uranium or thorium. Second, the uranium or thorium must be extracted or
concentrated from an ore. And third, the ore must be processed primarily for its source material
content. As demonstrated below, SFC's uranium recovery wastes (wastes generated from the
concentration and purification of uranium from licensed source material ore concentrates)
satisfy all three elements of this definition and these wastes, therefore, qualify as 11 e.(2)
byproduct material.
1. SFC's Uranium Recovery Wastes Were Produced By The Extraction or
Concentration of Uranium, Consistent With The Definition of 1 Ie.(2)
Byproduct Material
As indicated, the first element of the definition of lle.(2) byproduct material requires that
the material be produced "by the extraction or concentration of uranium." A plain reading of
this language indicates that the processing activities that SCF engaged in to recover uranium
from licensed source material ore concentrates, namely. concentration and purification, are
precisely the types of activities that generate wastes satisfying the definition of lle.(2) byproduct
material. This conclusion also is consistent with established principles of statutory construction.
16
Where a term (in this case, concentration) is neither defined in the statute nor explained
in the legislative history, the Supreme Court advises that "we assume 'that the legislative
purpose is expressed by the ordinary meaning of the words used.' Thus, '[absent] a clearly
expressed legislative intention to the contrary, that language must ordinarily be regarded as
conclusive. '" American Tobacco Co. et al. v. Patterson et al., 456 U.S. 63, 68 (1982) (citations
omitted). In the absence of a definition or explanation of meaning in the legislative history, it is
appropriate to tum to the "ordinary understanding" or "dictionary definition" of a term. See
Babbitt v. Sweet Home Chapter o/Communities/or a Great Oregon et al., 515 U.S. 687,696
(1995). Also, statutes and regulations must, if possible, be construed in such a fashion that every
word has some operative effect. United States v. Nordic Village, Inc., 502 U.S. 30 (1992).
A review ofUMTRCA and the legislative history underlying the definition of 1Ie.(2)
byproduct material shows that the term "concentration" is neither defined nor explained;
therefore, to give the term operative effect, one looks to its ordinary meaning. The dictionary
definition of the verb form "to concentrate" is "[t]o increase the concentration of (a solution or
mixture)." Webster's II New College Dictionary (1995). The noun "concentration" is further
defined as "[t]he amount of a specified substance in a unit amount of another substance." Id
Thus, when Congress defined lle.(2) byproduct material to include wastes produced by the
concentration of uranium or thorium, given the clear meaning of the word, wastes resulting from
processes like SFC's, which are designed to increase the concentration of uranium from
processing licensed source material ore concentrates, satisfies the definition. Therefore,
designating as lle.(2) byproduct material wastes at the Facility that resulted from the
concentration of uranium through the SX uranium recovery process is consistent with the
definition of concentration and with its plain meaning in UMTRCA.
17
Moreover, there is abundant evidence that NRC explicitly contemplated that a variety of
concentration and purification processes would result in the creation of II e.(2) byproduct
material. NRC's Final Generic Environmental Impact Statement on Uranium Milling (GElS)
assumes that wastes generated from the concentration of uranium are properly considered
11e.(2) byproduct material and must be disposed of in accordance with 10 C.F.R. Part 40,
Appendix A. The Introduction to the GElS states:
Conventional uranium milling as used herein refers to the milling
of ores mined primarily for the recovery of uranium; it involves the
processes of crushing, grinding, and leaching the ore, followed by
chemical separation and concentration of uranium.
See U.S. Nuclear Regulatory Commission, Final GElS on Uranium Milling, NUREG-0706, Vol.
1, 1-1 (Sept. 1980) (emphasis added). In discussing the evolution of modern conventional
milling techniques, the GElS envisions concentration of uranium as a milling process:
The milling techniques currently used, with such minor
modifications as increasing the concentration of acid used in
leaching or improving resins for concentration of uranium, will
likely continue ....
GElS at 3-11. The GElS also includes a diagram and an extensive explanation of milling
processes. This generic description encompasses processes similar to SFC's concentration and
purification processes. In fact, in one description of milling processes, the GElS has a specific
section entitled "Concentration and Purification Processes," which states:
Following the extraction of uranium values from the ore by the
acid leach or alkaline leach process, the resulting impure and dilute
leach solutions have to undergo concentration and purification as a
prerequisite to the production of a final, high-grade, uranium
product. A -number of major techniques are used to effect this
stage of the milling process. They are: [I}on exchange ... solvent
extraction ... eluex process ... improved eillex process .. .
GElS at B-9 (emphasis added).
18
Thus, to the extent that SFC's solvent extraction process is primarily intended to further
concentrate and purify source material from licensed source material ore concentrates, the wastes
created as a result of such processing are Ile.(2) byproduct material.
2. SFC's Uranium Recovery Wastes Were Produced From Processing "Ore"
As That Term is Used in AEA Section Ile.(2)
The second element in the definition of 11 e.(2) byproduct material requires that uranium
be concentrated or extracted from "ore." As discussed below, the term "ore" is intended to be
interpreted broadly under UMTRCA and the licensed source material ore concentrates processed
by SFC fit squarely within the intended scope of that term.
One of Congress' central objectives in enacting UMTRCA was to amend the AEA to
create a comprehensive program for regulating tailings and other wastes generated from uranium
ore processing activities, during active milling operations and, in particular, after termination of
such operations. Pub. Law No. 95-604 at 2(bX2), 92 Stat. 3022. A key element of this program
was the amendment of the definition of "byproduct material" to include the materials described
in what is now Section lle.(2) of the AEA. In particular, Ile.(2) byproduct material was defined
to include wastes from processing any ore primarily for its source material content. By
developing such a broad definition of lle.(2) byproduct material, Congress sought to ensure that
all wastes from NRC-licensed uranium milling operations (i.e., uranium extraction and
concentration activities) would be regulated under UMTRCA's comprehensive regulatory
regime, including both radiological and non-radiological wastes from the extraction and
19
concentration of uranium at licensed mlelear fuel-cycle facilities. Thus, as NRC has noted,~ the
D .C. Circuit has recognized that "a broad reading of the definition [of Ile.(2) byproduct material
is] in line with Congressional expectations." Specifically, in Kerr McGee v. U.S. Nue/ear
Regulatory Comm 'n, the D.C. Circuit concluded that:
It is clear from this exchange [in the legislative history] that the
definition of "byproduct material" proposed by [then NRC
Chairman] Dr. Hendrie and adopted by Congress was designed to
extend the NRC's regulatory authority over all wastes resulting
from the extraction or concentration of source malerials in the
course of the nuclear fuel cycle.
Kerr McGee vs. Us. Nuclear Regulatory Commission, 903 F 2d 1,7 (D.C. Cir. 1990) (emphasis
added).
To achieve regulatory control over the broad range of wastes intended to be covered by
the definition of 1 Ie.(2) byproduct material, Congress had to ensure that an equally wide range
of materials would qualify as ore, so that all wastes generated from processing such ore
primarily to recover its source material content at a licensed nllclear fllel cycle facility would be
covered under UMTRCA's regulatory program. Thus, Congress defined lle.(2) byproduct
material as the tailings and wastes produced by the extraction of uranium at such a facility from
any ore. As NRC has noted:
The fact that the tenn "any are" rather than "unrefined and
unprocessed ore" is used in the definition of Ile.(2) byproduct
material imply (sic] that a broader range offeed materials could be
processed in a mill, with the wastes still being considered as
lle.(2) byproduct material.
57 Reg. at 20,532.
657 Fed. Reg. 20525, 20532, col. 2 (May 13, 1993).
20
NRC further noted that:
Legislative history confirms the validity oj a broad interpretation
oj the term "anyore. " The definition of 11 e.(2) byproduct
material as originally presented in UMTRCA was:
The tailings or wastes produced by the extraction or concentration
of uranium or thorium from any source material.
However, there was a concern that tailings resulting from the
processing of ore containing less than 0.05 percent uranium (the
minimum concentration that would still meet the definition of
[licensable] source material) would fall outside the definition. To
preclude that possibility, it was suggested that the words "any are
processed primarily for its source material content" be substituted
for "any source material."
Id (emphasis added).
Indeed, because 11 e.(2) byproduct material is defined as being derived from processing
ore, the concepts of ore and 11 e.(2) byproduct material are inextricably interrelated under
UMTRCA. As a result, NRC has defined the term ore broadly, as follows:
Ore is a natural or native matter that may be mined and treated for
the extraction of any of its constituents or any other mailer from
which source material is extracted in a licensed uranium or thorium
mill.
60 Fed. Reg. 49,296 (Sept. 22, 1995) (emphasis added).7
The definition of unrefined or unprocessed ore contained in 10 C.F.R. § 40.4 and the
exemption for it contained in § 40.13 derive from the AEA and its legislative history wherein
7 Although this definition is framed in terms of material that is processed at a "licensed uranium or
thorium mill," as the legislative history indicates, the definition of Ile.(2) byproduct material was in part
designed to apply to, and distinguish between, wastes from nuclear fuel cycle facilities as opposed to
wastes from non-fuel cycle facilities that had "side-stream" or secondary uranium recovery operations.
In this regard it is significant that this definition of "ore" was developed in connection with NRC's
Alternate Feed Policy, 60 Fed. Reg. 49,296 (Sept. 22, (995), which was specifically intended to address
the processing of alternate feed materials at licensed uranium mills.
21
Congress indicated that the Commission was not to have authority over uranium mining (i.e ..
extraction of unrefined or unprocessed ore). As a result, natural ore (even if containing
concentrations of uranium greater than the 0.05% licensable source material level set forth in
§ 40.4) only becomes subject to NRC jurisdiction when it arrives at a licensed uranium mill.8
Logically, therefore. an alternate feed that is not "unrefined or unprocessed ore" (i.e .. not
natural ore) that is licensable because it contains greater than 0.05% source material would be a
"refined or processed ore."9 As demonstrated by recent amendments to ruc's uranium mill
license, an alternate feed (i.e., ore that qualities as any other matter) can be a waste from a non-
fuel cycle faci I ity that contains licensable levels of source material (i. e., licensed source material
ore) such as the feed material from Cabot Corporation (Amendment 4 to Source Material
License SUA-1358 (Aug. 15, 1997)), that contained an average of 0.05 to 0.5 percent uranium;
or, the feed materials from DOE's inventory of uranium process wastes called the Cotter
Concentrates that contained as much as 27 percent uranium (Amendment 1 to Source Material
License SUA -1358 (ApriI2, 1997».10 Further, as the Commission's [UC decision referenced
• Whether source material levels are greater or less than 0.05% uranium (and even before processing)
unrefined or unprocessed ore becomes subject to NRC jurisdiction at a mill. See GElS Vol. II at A-88.
9 Indeed, NRC has explicitly identified one type of "refined or processed" ore as follows:
Some mines have to be dewatered as the shafts or pits fill with ground-water. This water
often contains dissolved constituents as a result offlow through and contact with ore
bodies. It must therefore be treated before it can be discharged offsite. Treatment is
often via ion-exchange columns which concentrate high levels o/uranium on resins or
the eluate. Several mills (Western Nuclear (nc .• Split Rock, Wyoming, and Atlas
Minerals Corp., Moab, Utah) have obtained license amendments and processed these
residues/wastes through the mill.
The NRC staff approved the processing o/these alternate feed materials, considering
them to be refined and processed ore.
57 Fed. Reg. 20532, col. I. (emphasis added).
10 Technically speaking the Cotter Concentrates were not licensed source material ore concentrates
Footnote continued on next page
22
above indicates, and the legislative history substantiates, wastes containing less than licensable
source material levels (i.e., less than 0.05% uranium) still can be an ore in the form of an
alternate feed! I
Therefore, it goes without saying that further concentrating and purifying licensed source
material ore concentrates (i.e., refined or processed ore) primarily for the source material
content creates a waste stream that is lle.(2) byproduct material, even if the licensed source
material ore concentrates in the form of yellowcake nonnally contain higher levels of uranium
(i.e., 65 to 83 percent) than other licensed source material ores (e.g.. Cabot's 0.05-0.5 percent, or
even the Cotter Concentrates' 27 percent).
Given Congress' and NRC's expressed intent to ensure regulatory oversight of all wastes
from UR operations at licensed uranium mills, and, which in turn necessitates the broad
interpretation of the word ore, it is not surprising that NRC's definition of uranium milling set
forth in 10 C.F.R. § 40.4 is also extremely broad and does not limit milling processes only to
conventional uranium mills. Section 40.4 states that: "Uranium milling means any activity that
results in the production of byproduct material as defined in this part." (Emphasis added). It
Footnote continued from previous page
because they were under DOE control and DOE is self-regulating under the AEA and, therefore, is not
required to have a license. However, similar wastes from a licensed private sector facility containing such
levels of source material would be licensed source material ore concentrates.
II Even lle.(2) byproduct material effectively becomes a licensed refined and processed ore if
reprocessed in a licensed uranium mill to remove uranium and the wastes from the reprocessing are
lle.(2) byproduct material. Congress explicitly contemplated the reprocessing of uranium mi II tailings
and NRC has recognized as much. See Uranium Mill Facilities. Notice of Two Guidance Documents:
Final Revised Guidance on the Disposal of Non-Atomic Energy Act of 1954. Section J Ie. (2) Byproduct
Material in Tailings Impoundments; Final Position and Guidance on the Use of Uranium Mill Feed
Materials Other Than Natural Ores, 60 Fed. Reg. 49, 296 (1995).
23
would seem that NRC consciously constructed this broad definition of milling to be consistent
with the Stafrs determinations that: (a) "the same tailings management and disposal criteria
proposed for conventional mills should be applied to such activities" (i.e., "heap leaching or the
use of semi-portable milling equipment") at smaller or low-grade ore bodies located far from (or
at least away from) conventional mill facilities (GElS Vol. I, p. 12-20, Vol. II, p. B-9); and (b)
the underground leaching of uranium from an ore body at an ill situ leach (ISL) uranium
recovery facility is functionally "a form of processing that mirrors conventional milling, but does
so underground." Memorandum from Howard K. Shapar, Executive Legal Director, NRC to
Chairman Ahearne, NRC (April 28, 1980).12 Thus, a milling process designed for further
concentration and purification of uranium at a licensed fuel cycle faci lity other than a
conventional mill satisfies the definition.
Again, this broad definition of milling is consistent with Congressional intent to interpret
the definition of 11 e.(2) byproduct material broadly to assure that all wastes from the extraction
or concentration of source material primarily for its source material content in a licensed nuclear
fuel-cycle facility will be subject to NRC jurisdiction. Moreover, as a practical matter, the
similarities between the "conventional" milling process and SFC's concentralion and
purification processes are apparent upon comparing the two processes. Figure I, (taken from
12 This latest conclusion was recently reaffinned in a letter to Ms. Katie Sweeney ofNMA. The letter
discusses the definition of "uranium milling" as "any activity that results in the production of byproduct
material as defined in this part" with reference to "conventional" and "nonconvential" (i./!. ISL uranium
recovery) "uranium milling" while noting, that "only facilities that conduct uranium milling" are subject
to UMTRCA (i.e. create Ile.(2) byproduct material.) Secondly. according to the letter, a "non-fuel cycle
UR operation ... which does not generate lle.(2) byproduct material, is not a milling activity according
to the definitions." See Letter from Paul H. Lohaus, NRC to Katie Sweeney, NMA (Nov. 22,2000)
(emphasis added).
24
GElS at 5-3), is a process flow diagram depicting a typical uranium mill utilizing an acid leach
process. Figure 2 depicts the SFC uranium ore concentration and purification process. As can
be seen by comparing these two flow diagrams, the SFC process is an acid leach process that
utilizes SX technology to further concentrate and purify the source material from source material
ore concentrates. The SFC process generates a raffinate waste stream, a recycled nitric acid
stream, and a final dry uranium product. 1 )
3. SFC Processed Uranium Ore Concentrates Primarily For Recovery of Uranium
The third and final element in the definition of Ile.(2) byproduct is that the ore must be
processed primarily for its source material content. This element is easily satisfied by SFC,
since the sole purpose, not just the primary purpose, for SFC's concentration and purification of
licensed source material ore concentrates was to recover further concentrated and purified
uranium from those concentrates.
In order to appreciate the purpose behind SFC' s concentration and purification processes,
it is important to understand that the concentration and purity of uranium found in the licensed
source material ore concentrates delivered to SFC varied greatly, depending on where the
material was originally milled. Specifically, ore concentrates received at the SFC facility
historically ranged in uranium content from a low of about 65% uranium by weight to as high as
83%, depending upon the supplier. (As a comparison, pure U30S contains 84.8% uranium by
13 At a conventional mill, an alkaline or acidic solution is used to precipitate the uranium which when
dried breaks down into uranium oxide product (I.e. yellowcake). At the SFC Facility, the front-end
process used a nitric acid (rather than sulfuric acid) based solution which when dried resulted in a
uranium oxide product (i.e. yellowcake). Like a conventional mill, SFC's front-end processing of the
licensed source material ore concentrates by SX was primarily for the source material content.
25
weight.)I4 Impurities, which made up the weight difference in the ore concentrates (up to about
20% in the worst material), had to be removed prior to conversion to UF6 for two primary
reasons. First, many of the impurities were low melting point salts that could cause plugging of
the fluidized bed reactors used in the first two steps of the conversion process. Second, some of
the impurities, ifnot removed, could follow the uranium through the process, resulting in out-of-
specification UF6 product. Thus, the purpose for the concenlration and purific:alion that
occurred in the SX portion of the SFC Facility was essentially identical to that which occurred in
the final concentration and purification processes at the more efficient uranium mills that
supplied SFC with licensed source material uranium ore concentrates --to create a high quality.
"on-specification" product. Indeed, due to the variability in the quality of the feed stock. the
uranium concentralion activities that occurred in the SX circuit at SFC can appropriately be
thought of as a necessary continuation of the milling process. I , imporlanl/y. if licensed source
14 The Cotter Concentrates referenced above contained uranium concentrations as high as 27.44%.
IS When considering the classification of SFC's SX operations. it is useful, for comparison. to consider
EPA's analysis of the line of demarcation between milling/beneficiation, versus processing/conversion!
reduction in the context of the exemption of benefiCiation wastes from the Resource Conservation and
Recovery Act (RCRA) (42 U.S.c. § 6901 el seq) Subtitle C requirements as a result of the so-called
Bevill Amendment, which exempted among other things "solid waste from the extraction, benefiCiation,
and processing of ores and minerals" from the definition of hazardous waste. 40 C.F.R. § 261.4(b)(7).
EPA has concluded that concentration and purification processes constitute benefiCiation, not processing
as those tenns are defined under RCRA Instead of regulating wastes resu Iting from extraction and
benefiCiation as Subtitle C hazardous wastes, EPA has indicated that these wastes should be regulated
under Subtitle D of RCRA. ld. Under the RCRA scheme. however, processing wastes are treated
differently than extraction and benefiCiation wastes. Specifically, in June 1991, EPA issued a regulatory
detennination, see 56 Fed. Reg. 27300, stating that 20 specific types mineral processing wastes should not
be treated as RCRA Subtitle C hazardous wastes; any mineral processing wastes not specifically included
in the 20 wastes were to be treated as Subtitle C wastes. 54 Fed. Reg. 36592. Thus, EPA differentiates.
for regulatory purposes, between extraction and benefiCiation wastes (which are non-hazardous) and
processing wastes (some of which are hazardous and some of which are non-hazardous).
Footnote continued on next page
26
material ore concentrates were sent to a conversionfacility bllt contained too many impllritie!>'
and were returned to the millfor further processing. no one could seriously question that the
wastesjrom such reprocessing would be J Je.(2) byproduct material. 16 The fact that these
milling processes occurred at the SFC facility rather than a conventional uranium mill does not
alter that conclusion.
Footnote continued from previous page
EPA's regulation implementing the Bevill Amendment is set forth at 40 C.F.R. § 261.4(b)(7). Under
section 261.4(b)(7), solid waste from the benefiCiation of ores and minerals, including overburden from
the mining of uranium ore, is exempt from regulation as hazardous waste. BenefiCiation of ores and
minerals is:
restricted to the following activities; crushing, grinding, washing, dissolution,
crystallization, filtration, sorting, sizing. drying, sintering, pelletizing, briquetting,
calcining to remove water and/or carbon dioxide; roasting, autoclaving, and/or
chlorination in preparation for leaching (except where the roasting (andlor autoclaving
andlor chlorination)/leaching sequence produces a final or intermediate product that does
not undergo further beneficiation or processing); gravity concentration; magnetic
separation; electrostatic separation; floatation; ion exchange; solvent eXlraction;
electrowinning; precipitation; amalgamation; and heap, dump, vat, tank, and in situ
leaching.
40 C.F.R § 261.4(b)(7)(i). The 20 exempted processing wastes are identified in section 261.4(b)(7)(ii).
Notably, even ifnot explicitly exempted by UMTRCA, uranium mill tailings are exempt from RCRA
Subtitle C regulation under the above benefiCiation definition. See U.S. EPA Tl!chmcai Rl!sourcl!s
Document, Extraction and BenefiCiation o/Ores and Minerals, Volume 5. Uranium (Jan. 1995) at 66
('Uranium TRD''). Similarly, SFC's concentration and pUrification processes at the facility constitute
benefiCiation under the definition above, thus, wastes resulting from SFC's concentration and purification
processes, like uranium mill tailings, are not subject to regulation as hazardous waste under Subtitle C of
RCRA. Uranium TRD at 43-44. Nevertheless, as discussed in the following section, the wastes resulting
from the SFC concentration processes are radiologically and chemically similar to wastes generated at a
conventional uranium mill. We note that under the Bevill Amendment and implementing regulations,
wastes resulting from any sorl o/further beneficiation process following conversion processes would not
be exempt from RCRA Subtitle C regulation.
16 Approximately ten (10) percent of the ore concentrate that was stored at the SFC facility at the time of
shutdown (approximately 2.5 million pounds of uranium) subsequently could not be processed at the
Allied-Signal facility in Metropolis, Illinois because of impurity levels andlor excessive moisture. This
material was sent to the CAMECO mill in Blind River, Ontario to be reprocessed. The wastes resulting
from that reprocessing at a conventional mill in the United States would be sent to the mill's tailings pond
as lie.(2) byproduct material.
27
Moreover, the fact that previously the Facility had not been divided up into different
licensing categories (i.e., concentration/purification vs. conversion/reduction) for purposes of
identifying lle.(2) wastes presents no impediment to doing so now. At various times, fuel cycle
facilities, including SFC's, can have multiple licenses or multiple license conditions for different
types of AEA materials to which different regulatory standards apply. For example, SFC held a
Byproduct Materials License (No. 35-12636-03) from August 24, 1989 until September II,
1995, for the radioactive sources and calibration instruments used in its environmental
laboratory, and over 40 "conditions" were added to SFC's license over the operating history of
the plant. In addition, NRC has traditionally licensed portions of non-fuel cycle facilities and/or
specific types of materials at such facilities while leaving other portions of the facilities and other
types of materials unlicensed. (See e.g., Cabot Industries, 5MB-920, NRC Dkt. No. 40-6940,
and 5MB 1562 NRC Okt. No. 40-9027; Heritage Minerals Inc., 5MB 1541 , NRC Okt. No. 40-
8980.). Therefore, there is ample precedent for differentiating between wastes from different
portions ofa fully licensed fuel-cycle facility, as is proposed now by SFC.
C. SFC Wastes are Physically, Chemically, and Radiologically Similar to
"Traditional" Mill Tailings
Designating SFC's uranium recovery wastes as Ile.(2) byproduct material is appropriate
primarily because those wastes satisfy the definition of II.e(2) byproduct material, as just
discussed, but also as a practical matter because the relevant SFC materials are, in all important
respects except for the volume, quite similar to tailings generated at conventional uranium mills.
The wastes generated from the processes at the SFC facility involving the concentration and
purification of uranium from licensed source material ore concentrates processed primarily for
their source material content (i.e., the Ile.(2) byproduct material wastes at the Facility), include
28
the raffinate wastes resulting from processing ore through the SX process which are similar to
the slimes component of conventional uranium mill tailings. Other I Ie.(2) wastes include
contaminated soils from source material ore concentrate spills, which along with windblown
tailings present in surface soils, are a typical component of II e.(2) wastes at conventional mills,
and any equipment used in the SX processes that cannot be adequately decontaminated.17 For
example, the primary waste stream from the SFC uranium concentration and purification
17 See GElS at 8-11-14 for a description of typical corrvenfional mill tailings. and EPA's Uraniwn TRD similarly
describes wastes generated by conventional mills:
Most wastes generated by conventional mills are disposed of in tailings
impoundments. Wastes are primarily disposed of in tJle fonn of a slurry
composed of tailings, gangue (including dissolved base metals), spent
beneficiation solutions, and process water bearing carbonate comple .... es
(alkaline leaching) and sulfuric acid (acid leaching). sodiulll, manganese. and
iron. The characteristics of this waste vary greatly, depending on tile ore, tile
beneficiation procedure, and the source of tIle water (fresh or recycled). TIle
liquid component is usually decanted and recirculated to the crushing/grinding
or leaching circuit
Tailings typically consist of two fractions, sands and slimes. The sand and
slimes may be combined and deposited directly in the impoundment or may be
distributed through a cyclone such that tlle sand fraction is directed toward the
dam while the slimes are directed to the interior of the pond (Merritt, 1971).
The fate of radionuclides is of special interest in urani um mill tailings. R..ldium-
226 and thorium-230 are the principal constituents of concern and are associated
with tlle slime fraction of tlle tailings. Radon-222 (gas) is also a tailings
constituent The concentrations of radionuclides in tIle lails will vary depending
on the leach method used (thorium is more soluble in acid tllan alkaline
leaches); typically, tailings will contain between 50 and 86 per~nt of the
original radioactivity of Ule ores depending on the proportion of radon lost
during tlle operation (Merrin. 1971). Other tailings constituents (including
metals, sulfates. carbonates. nitrates, and organic solvents) would also be present
in tlle tailings impoundment depending on tile type of ore, beneficiation
metllods, and waste management techniques. (For updated infonnation on
specific hazardous constituents. see 60 Federal Register 2854. Janum-y II. 1995.
which is attached in Appendix C).
Uraniwn TRD at 43-44. Moreover. sludges and resin beads, which are not like raw ore or waste rock. that are
byproducts of the in situ leach UR process are classified as Ile.(2) byproduct material by NRC.
29
processes was the raffinate stream from the SX line. Like the raffinate stream from an acid-leach
mill, this stream was an acidic aqueous stream containing the impurities that were removed from
the licensed source material ore concentrates. The stream was neutralized with anhydrous
ammonia in a lined holding pond, causing the impurities to precipitate out as a sludge that
resembles the slimes from a conventional milling acid-leach process. The sludge is composed of
complexes of various metals, natural uranium, radium-226 and thorium-230 in a clay-like matrix
consisting of particles, most of which will pass a ZOO-Mesh screen. Table 2, Constituent
Concentrations in SFC Soils and Sludges Versus Mill Tailings, provides a summary comparison.
The uranium and thorium-230 concentrations in SFC's raffinate sludge are somewhat higher than
typical slimes from conventional uranium mills, while the radium-226 concentration is roughly
the same as in such slimes. This is due to the fact that most of the other impurities were removed
at the conventional mills and wound up in their slimes streams. Also, most mills were very
effective at separating radium-226 from the uranium, so a much smaller relative amount of
radium wound up in the licensed source material ore concentrates that SFC used for feed. Thus,
the wastes resulting from the SFC concentration processes are radiologically and chemically
similar to wastes generated at a conventional uranium mill, although the volume is considerably
smaller.
All wastes from processing primarily for uranium at a conventional mill are Ile.(2)
byproduct material including both radiological and non-radiological components (which may
include hazardous components in the tailings and mill components such as pipes, vats, etc.) and
30
are exempt from RCRA. II Thus, it is important to recognize that while typical conventional mill
tailings contain large sand fractions from ore crushing, lle.(2) byproduct material includes any
and all wastes from primary uranium recovery operations such as those at ISL uranium recovery
facilities that do not generate any sand tailings.
v. BENEFITS OF DESIGNATING SFC CONCENTRA TION AND
PURIFICATION WASTE MATERIALS AS IIE.(2) BYPRODUCT
MATERIAL
Designating the waste materials from SFC's concentration andpurijication processes as
l1e.(2) byproduct material provides significant benefits to NRC, the State of Oklahoma, SFC,
and the general public.
First, as stated above, 77% by volume of and 92% ofthe radionuclide inventory in the
wastes at the SFC facility result from the concentration and purijication uranium recovery
processes,19 therefore, the long-term oversight and disposal requirements for the dominant
portion of the waste at the SFC site will be controlled by the well-understood and workable
II See Memorandwn from Paul H. Lohaus, Chief, Operations Branch, Div. Of Low Level Waste Management and
Decommissioning, NRC to NRC UR Licensees al I (March 15. 1989):
All tailings and wastes included in this definition [of Ile.(2) byproduct material]. such as process
fluids and nonradioactive ore residues, are thus byproduct material. Waslesfrom the
decommissioning of buildings and equipment whose primary function was to conduct the
extraction or concentration of uranium or thorium from ore processed primarily for its source
material content. are considered to be byproduct material. These byproduct material wastes
generated by uraniwn recovery licensees are not mixed wastes and are not subject to EPA
regulation under RCRA.
(Emphasis added).
19 Designating the wastes as lle.(2) byproduct material will result in Ole re-classification of approximately 77% of
the wastes on-site, which are comprised of all wastes (both radiological and non-radiological) resulting from the
concentration and purification processes, i.e .. the raffinate and sludges. the SX circuit equipment, the wanium and
thoriwn spills in soil, raffinate sludges and liners, and contaminants in the groundwater (except arsenic). Arsenic in
the site groundwater is suspected to originate from arsenic·bearing sludges fonned during the production of fluorine
gas which was used in the conversion process, and therefore, may need to be addressed outside of the Ile.(2)
context
31
criteria contained in 10 C.F.R. Part 40, Appendix A. Site cleanup and disposal of the l1e.(2)
material would no longer be subject to 10 C.F.R. § 20.1401, et seq., cleanup standards which are
new to NRC staff and licensees, and the guidance for which in many respects is not yet final.
Disputes about on-site or off-site disposal will no longer be an issue. For example, site closure
issues, such as whether the entire site should be released for unrestricted use, which has been the
subject ofa dispute between the State of Oklahoma and SFC, would be resolved. When the
wastes are designated as l1e.(2) byproduct material and Appendix A applies, the majority of the
site could be cleaned up to satisfy the soil cleanup standards in Criterion 6 and based on
satisfying such standards could be released for unrestricted use. The waste disposal cell,
however, would be subject to the 1,000 year closure requirement set forth in Criterion 6 (which
assumes over-designed ''passive'' controls and no "active" maintenance), and would have to be
transferred with any other property necessary for disposal of byproduct material (i.e., any
diversion ditches, access roads or land necessary for groundwater corrective action) to a long-
term governmental custodian licensed in perpetuity by NRC. ~o
A second benefit of designating the predominant waste stream as 11 e.(2) byproduct
material is that to the extent necessary, SFC and NRC would be granted more flexibility with
respect to achieving the remediation of radioactive and non-radioactive constituents in
groundwater. Specifically, 10 C.F.R. Part 40, Appendix A. Criterion 50 requires the creation of
a corrective action plan the "objective of [which] is to return hazardous constituent concentration
20 We note that SFC plans to stabilize the raffinate with coal ash. which along with contaminated soils will assure
better long-tenn stability of the impoundment. Typical conventional mill tailings contain huge volumes of water
that must be removed to demonstrate 9()01o compaction so that the long tenn covers will not be jeopardized by future
differential settlement SFC's proposed approach effectively mirrors waste/orm considerations such as those in 10
C.F.R Part 61 or in the Envirocarc lle.(2) byproduct material license.
32
levels in groundwater to the concentration limits set as standards." (Emphasis added). In case a
licensee cannot meet the objectives that were developed pursuant to the Appendix A
requirements, the Appendix A criteria explicitly provide alternatives that can be used to satisfy
the goal .of reasonable assurance of protection of public health, safety and the environment. The
Commission may exclude a particular constituent from the set of objectives on "a site specific
basis ifit finds that the constituent is not capable of posing a substantial present or potential
hazard to human health or the environment.'>21 Id at Criterion 5B(3). Another option is for the
licensee to propose alternate concentration limits (ACL's) that present no substantial hazard
where the constituent levels are such that the limits that might otherwise apply "may not be
practically achievable at a specific site." Id at Criterion 5B(6) (emphasis added).
Yet another option is for the licensee to "propose" alternatives to any requirement in
Appendix A. See 10 C.F.R. Part 40, Appendix A, Introduction; Atomic Energy Act § 84c. Here,
where the wastes are designated lle.(2) byproduct material thereby rendering Appendix A
applicable, SFC would either have to show that site groundwater meets the specific requirements
of Appendix A or propose site specific ACL's or other alternatives that are ALARA, and, after
considering practicable corrective actions, ensure that constituents of concern will not pose a
substantial present or potential hazard to human health or the environment, in accordance with
the provisions of the ABA and Criterion 5B(6). Any ACL's or other alternatives that are
submitted and approved by NRC could have the important effect of determining the size and
shape of that portion of the site property that will be required to be transferred to the long-term
21 This could be done by restricting access to groundwater within the property turned over to the long tenn custodian
such that public health, safety and the envirorunent are protected at the potential points of public exposure outside of
the boundary under control of the long-tenn govcnunenraJ custodian. It could also be done by restricting use of the
groundwater by covenants or easements that run with the title to tile property (e.g .• "Drilling of domestic water wells
Footnote continued on next page
33
governmental custodian. The ability to exclude particular constituents and utilize ACL's or
alternatives will provide SFC, NRC and the State with the significant flexibility to permit the site
to be closed while ensuring adequate protection of public health and safety.
As noted above, a third significant benefit of designating the wastes as 11 e.(2) byproduct
material is the statutorily and regulatory mandated long-term governmental custodian for the site.
As mandated by UMTRCA, title to the wastes and land necessary for the disposal of the lle.(2)
byproduct material must be transferred to the U.S. Department of Energy or to the State at its
option. Moreover, the disposal cell for the Ile.(2) wastes would have to be designed to
permanently isolate the wastes such that active maintenance would be unnecessary and to
provide reasonable assurance of the control of radiation hazards for 1,000 years, to the extent
reasonably achievable, and in any case for at least 200 years.
The fourth benefit is a clearly defined radiation protection standard for radon emissions
(designated the primary public health threat from 1Ie.(2) byproduct material) from the disposal
cell that, when satisfied, EPA has stated unequivocally provides an ample margin of safety for
the protection ofpublic health. See 58 Fed. Reg. 32174 (June 8,1993). Satisfaction of the 20
pCilm2/s radon emission standard is, therefore, by definition safe and should alleviate the
concerns of the State and members of the local public. Modeling of radon emissions from the
SFC cell at 10,000 years (peak radon emission point), indicates that actual emissions will be
more than a factor often (10) lower than the standard.
Finally, the fact that § 83 ofUMTRCA requires that transfer of lle.(2) byproduct
material and any property necessary for byproduct disposal be accomplished at no cost to the
Footnote continued from previous page
is not pennitted. Groundwater may be used for irrigation and/or stock-watering only.").
34
government provides additional benefits. First, Criterion 10 assures that adequate funds will be
available for long-tenn surveillance costs ($250,000 in 1978 dollars or approximately $670,000),
and a negotiated amount of additional funding if any active maintenance is expected. Second,
the fact that nonnally the only long-term funding that actually is remitted to the government is
solely for surveillance should provide additional comfort to the State and the local public
because it indicates that the design requirements for 11 e.(2) disposal cells are ultra-conservative
and, therefore, provide the necessary reasonable assurance that public heath, safety and the
environment will be protected. Thus, SFC would be required to pay the minimum of $250,000
(in 1978 dollars), to the U.S. Treasury or appropriate State agency, prior to license tennination
for long-tenn surveillance costs and perhaps more if any "active" maintenance (i. e., fences,
vegetation control and ground water monitoring) is contemplated due to site specific
circumstances.
VI. THE SEPARATE CONVERSJONIREDUCTJONWASTES COULD, WITH
NRC'S AND DOE'S APPROVAL, BE DISPOSED WITH THE llE.(2)
WASTES UNDER NRC'S NON-lIE.(2) DISPOSAL POLICYAND/OR DOE
SHOULD TAKE THE NON-lIE.(E) WASTES UNDER SECTION 151(B)
OF THE NUCLEAR WASTE POLICY ACT
In addition to providing for long term control and custodianship of the lle.(2) byproduct
material that comprises approximately 77% by volume of and 92% of the radionuclide inventory
in the wastes at the SFC site, as described above, the license amendment could also form the
centerpiece of a broader strategy for achieving long-term stabilization. isolation and control over
the remaining radiological wastes on site. Specifically, if an II e.(2) disposal facility is .
authorized pursuant to the proposed license amendment, with NRC's and DOE's approval, UF6
conversion wastes and DUF4 reduction wastes remaining at the SFC site could be also disposed
orin the lle.(2) facility pursuant to NRC's Non-lle.(2) Disposal Policy, 60 Fed . Reg. 49.296
35
(1995) and/or DOE should accept title to and custody of the conversion/reduction non-lle.(2)
wastes under section ISI(b) of the Nuclear Waste Policy Act (NWPA), 42 U.S.c. § 10101 et
seq., because the criteria for DOE to take title and custody under that act will be satisfied.
A. The Conversion! Reduction Wastes Can Be Disposed Of With The II e. (2)
Wastes Under NRC's Non-l1e.(2) Disposal Policy
Under the current Non-l1e.(2) Disposal Policy,22 NRC may permit non-Ile.(2) waste
containing source material to be disposed in an 11e.(2) disposal facility provided that the
following criteria are satisfied:
• The material is not subject to regulation as hazardous waste under RCRA and
does not contain materials regulated under other federal authorities such as the
Toxic Substances Control Act (TSCA).
• Disposal of the material would not implicate concerns under the Comprehensive
Environmental Response, Compensation, and Liability Act, (CERCLA).
• There would be no significant environmental impact from disposal of the
material.
• Disposal of the material would be accomplished in a manner that satisfies the
criteria in 10 C.F.R. Part 40, Appendix A.
22 SFC notes that NRC's current Non-lle.(2) Policy discussed herein is presently being revisited by the agency in
the context or a new IO C.F.R. Part 41 rulemaking. Specifically, in the Commission's recenlly issued Regulatory
Issue Sununary ("RlS"), it states, among otber tbings, that tlle NRC staff should remove the prohibition against the
disposal of CERCLA, TSCA, and RCRA wastes in llc.(2) byproduct material licensed impoundments. While
SFC's materials do not contain such wastes, it is notable that the Commission is considering extending yet again the
types ofnon-lle.(2) wastes that can be disposed safely in lle.(2) impoundments. See NRC Regulatory Issue
Summary 2000-23 Recent Changes to Uranium Recovery Policy (Nov. 30, 1998), at
(http://www.nrc.gov/NRClGENAcr/GClRU2000/ri00023.html).
36
• The relevant Regional Low Level Waste Compact(s) approve of the disposal.
• DOE commits to take title to the disposal facility after closure.
• 10 C.F.R. Part 61 Waiver.
The conversion/reduction wastes would satisfy all of these criteria.
First, there are no constituents in the non-II e.(2) byproduct material
conversion/reduction wastes that would be placed in the on-site disposal cell that would cause
these wastes to be regulated under RCRA (including specifically listed hazardous wastes), TSCA
or any other federal environmental statutes.23
Second, disposal of the conversion/reduction wastes would not implicate any CERCLA
concerns. The wastes are not now regulated as CERCLA wastes, and even if they were, their
disposal on site would be eligible for the CERCLA on-site remediation exemption. See 42
U.S.C. § 9621(e)(1). Moreover, because the SFC facility is licensed by NRC it is not subject to
listing on the NPL. See 48 Fed. Reg. 40658, 40681 (Sept. 8, 1983).
Third, most of the non-II e.(2) conversion/reduction wastes are physically, chemically,
and radiologically similar to lle.(2) byproduct material in general, and they are similar to, and in
some cases virtually identical to, SFC's concentration and purification wastes. For example, the
buildings, structures, and equipment utilized in the conversion/reduction processes and the soils
contaminated by the conversion/reduction activities, which make-up 65% of the non-II e.(2)
waste volume, are impacted with varying levels of natural or depleted uranium and are thus
23 Under a RCRA Consent Order signed in 1993, SFC completed a RCRA Facility Investigation of the Facility. The
Final RFI Report, approved by EPA Region VI, concludes that there were no RCRA constituents in the non-lle.(2)
wastes at levels that wou1d cause the wastes to become RCRA characteristic hazardous waste, nor were tllere any
Footnote continued on next page
37
Plan, Appendix B) they can be disposed in a manner that satisfies the reclamation and closure
criteria of Part 40, Appendix A.
Fifth, because non-II e.(2) byproduct material would otherwise be regulated as low-level
radioactive waste by NRC or Agreement States, typically a licensee must obtain approval for the
disposal of such material by the regional low-level waste compact in whose jurisdiction the
wastes originates as well as approval by the compact in whose jurisdiction the wastes will be
disposed. Here, approval to dispose of conversion/reduction wastes on-site by the relevant low-
level waste compact(s) would not be necessary because the materials are not being sent off-site
much less out of State for disposal.
Sixth, DOE (or the State) where non-Ile.(2) material is to be disposed in a licensed
Ile.(2) facility must be informed of NRC's findings and proposed approval to dispose of non-
lle.(2) byproduct material. A concurrence and commitment from DOE (or the State) to take
title to the tailings impoundment after closure must be received before granting a license
amendment to permit such disposal. As discussed below, DOE should be willing to accept title
to and custody of the site after the NRC approved closure is completed.
Seventh, to formally obtain NRC authorization for the disposal, SFC must amend its
license under 10 C.F.R. Part 40 and must obtain an exemption to the requirements of 10 C.F.R. §
61.6 --license for land disposal of radioactive waste. This should not pose a concern at the SFC
Facility because Oklahoma is not an Agreement State for Part 61 purposes. Moreover, in the
RIS, the Commission directs NRC staff to pursue a generic exemption to this requirement in the
context of the Part 41 rulemaking. RIS at 3. While no generic exemption is yet in effect, the
Commission's intent to waive this requirement is certainly clear from the RIS.
39
Accordingly, the conversion/reduction wastes at the SFC Facility can be disposed of as
non-Ile.(2) byproduct material along with the lle.(2) byproduct material in an on-site tailings
impoundment under NRC's Non-lle.(2) Policy.
B. Section lSl(b) Criteria for DOE To Take Title To and Custody Of
Conversion/Reduction Wastes Will Be Satisfied
DOE should accept title to and custody of the SFC disposal facility following license
termination where the 11e.(2) byproduct material and conversion/reduction nun-lle.(2)
byproduct material wastes are disposed on-site because the section lS1(b) criteria will be
satisfied.
As discussed above, under UMTRCA. DOE is required to take title to and custody of
lle.(2) byproduct material following license termination. Under the NWP A however, DOE has
the discretion to accept title to and custody of AEA wastes other than 11 e(2) byproduct material
Specifically, under section ISl(b) of the NWPA. DOE has the authority to accept title to and
custody of AEA wastes (including non-II e.(2) byproduct material), provided that: (i) NRC
requirements for site closure are satisfied; (ii) the transfer of title and custody to DOE is without
cost to the Federal government; and (iii) Federal ownership and management of the site is
necessary or desirable to protect public health and safety and the environment. 42 US.C §
10171(b).25
2S Priorto the adoption ofthe NWPA, and in conjunction with NRC's original non-lle.(2) policy. DOE indicated to
NRC that it would accept title to sites where Ile.(2) byproduct 11l<1terial and non-lle.(2) material were disposed.
See 57 Fed. Reg. 20,525, 20,528 (1992). Specifically, DOE indicated that it would accept title to siles where non-
lle.(2) byproduct material was disposed if (I) no adverse environmental imp.1ct would result from the disposal. and
(2) there arc no outstanding environmental compliance issues under RCRA or CERCLA. /d. SFC disposal of the
conversion/reduction wastes meets the standards set forth in the original guidance, tile current guidance and if
changed pursuant to the RIS, the new guidance, as wcll as the standards contained in the NWP A.
40
UMTRCA's statutory and regulatory license criteria almost by definition will satisfy the
section 151(b) criteria at the SFC facility, so DOE should accept title to and custody of the
conversion/reduction non-Ile.(2) byproduct material wastes following license termination.
First, NRC requirements for site closure must be satisfied before any 11 e.(2) or for the matter
other type of AEA license is tenninated26 and DOE will not take title to the site until the license
is tenninated. These requirements ensure that DOE will only take title to and responsibility for
a site that meets NRC's site closure requirements. Further, the final SFC site closure plan has not
yet been prepared and if deemed necessary by NRC or DOE, can specifically include
consideration of the disposal of the non-II e.(2) wastes.
Second, SFC will increase the funds transferred to the government under 10 C.F,R. Pan
40, Appendix A, Criteria 10 to ensure that the requirement in section 83 ofUMTRCA - -that
title transfer must occur at no cost to the government - -is satisfied, thereby satisfying the section
151(b) requirement that the transfer of the non-II e.(2) wastes must be at no cost to the
government.
Finally, since (i) the portions of site necessary for disposal of II e, (2) byproduct disposal
represents 77% by volume ofthe wastes at the site, (ii) the non-il e,(2) material is so similar to
the lle.(2) material and will generate less radon emissions, (iii) the potential risk ofpublic
exposure from transportation accidents in the event of off-site disposal will be avoided, (iv) the
site will be subject to the extremely conservative controls for conventional uranium mill tailings
impoundments including the 1000 year design requirement with no active maintenance
conventional uranium pursuant to the Appendix A criteria. and (vi) a licensed governmental
U NRC requirements include its acceptance and approval ofa long-tenn surveillance plan (LTSP)
Footnote continued on next page
41
custodian will be present in perpetuity, the final criteria of section 151 (b) of the NWP A is
satisfied.
Accordingly, factually, legally and policy-wise this represents an appropriate case for
DOE to take title to and custody of non-II e.(2) byproduct material wastes under section 151 (b)
of the NWPA.
YD. CONCLUSION
The Commission should classify SFC's concentration and purificatioll wastes as 11 e.(2)
byproduct material. To the extent that designating the wastes from the concentration and
purification processes as 1Ie.(2) byproduct material is a departure from the manner in which the
wastes have been viewed in the past, it is important to keep in mind that the past characterization
was based on licensee and agency interpretations regarding conversion plantj/facilitiej' versus
conventional uranium mills which "are not 'carved in stone' but rather must be subject to re-
evaluation of their wisdom on a continuing bases." Kansas Gas & Elec. Co., (WolfCreek
Generating Station, Unit 1),49 NRC 441, 460 (1999) (referencing Chevron U.S.A ., Inc. v.
Natural Resources Defense Council. Inc., 467 U.S. 837, 863-64). The agency is free to choose a
new interpretation which may "represent a sharp shift from prior agency views or
pronouncements," see In the Maller of International Uranillm (USA) Corp .. slip op. at 15, so
long as the agency gives "adequate reasons for changing course." Envirocare of Utah v. NRC,
194 F.3d 72, _. This should be particularly true here, since no final decisions have been made
by the licensee or NRC regarding site closure and subsequent license termination. Thus, NRC
Footnote continued from previous page
submitted by DOE (or the State) pursuant to 40 C.F.R. § 40.28 .
42
should consider waste designation on a process/operations basis rather than on a ''facility/plant''
basis. Notably, only an "informal" opinion premised on a ''facility/plant' approach was offered
by NRC in the past. SFC notes that the prime focus ofUMTRCA regarding Ile.(2) wastes is to
address and assure long term control which is precisely the stage SFC has now reached under its
license. The plain meaning of the definition of lle.(2) byproduct material, the legislative history
of the Act, and the policy reasons elaborated above, all support the designation of the front-end
uranium recovery concentration and purification process waste materials as Ile.(2) byproduct
material.
For the foregoing reasons, the NRC should approve an amendment to Source Material
License SUB-101O to authorize the handling and disposal of byproduct material. Such an
amendment will permit SFC to dispose of 77% by volume and 92% of the radionuclide of the
wastes located at the Gore, Oklahoma Facility in a manner that ensures adequate protection of
public health and safety and that is cost-effective. Granting SFC a license amendment to dispose
of 11e.(2) byproduct material paves the way for disposal of the non-lle.(2) ABA wastes at the
site under NRC's Non-Ile.(2) Policy and/or section ISI(b) of the NWPA under circumstances
that factually, legally and policy-wise could hardly represent a better initial case for NRC and
DOE (or the State.).
43
Table 1 -Summary orWute Malenal Volume and Acth1ty Estimates
~ Volume oft' ~ Volume-rr' u-a !!.::.Q B!:lli..Q B!:lli..Q ~ !!ill!!.Q Tot.)g ~ I I
Tot.) ~ 11.~.l Waste 1l.uWaste Tota! ~ a Iola! !1!:l I
SoiIa >40 ~pnUlpn 3,574,000 90% I 3,216,600 44.1 40.3 0 0 0 0 44.8 40.3
Buildinp. EcpJipmm1, Conacte 1,080,455 SO% 2 540,227 16.4 8.2 0 0 0 0 16.4 8.2
Calcium Fluoride Sludge 625,280 0%' 0 4.67 0 .011 0 U 0 6.18 0
CaFl Buin Clay Linen 95,285 0%' 0 0.06 0 0 0 0 0 0.06 ' 0
RAffUJ&le SIIidp 1,000,000 100%' 1,000,000 38.3 38.3 1.00 1.00 145.0 14'.0 184.3 184.3
Scrap Metal 100,000 SO% 2 50,000 0.15 0.08 0 0 0 0 O.IS 0.08
Pond 2 Residual 749,000 100'" 749,000 10.8 10.8 1.60 1.6 48.0 48 60.4 60.4
Solid W.-Burials 51,100 50% 1 25,550 0.68 0.34 0 0 0 0 0.68 0.4
Pond 1 Spoib Pilc 437,400 100%' 437,400 0.11 0.11 .OS .OS 1.0 1.0 US I.1S
InIa1m Soila S10nIft ~II 140,950 50%' 70.475 2.89 1.4' 0 0 0 0 2.89 1.45
Pond 3£ and 4 Oay Uner 219,100 100,...· 219.100 0.07 0.07 0 0 0.1 0.1 0.17 0.17
Cluifier Clay Lilias 332,400 100%' 332,400 0.47 0.47 0.01 0.01 1.2 1.2 1.68 1.68
Drummed Conwninatcd Truhtl' 6,lSO SO". 2 3,125 038 0.19 0 0 0 0 0.38 0.19
Empty Drums (crushed) 2,000 100 ,.' 2,000 0.02 0.02 0 0 0 0 0.02 0.02 -
Sanrt.ry Lagoon Siudac 10,36' 100,...' 10,365 1.14 1.14 .01 0.01 O.S O.S 1.6S \.6S
Sann.ty Lagoon Soil 56,356 100%' 56,356 0.08 0.08 0 0 0 0 0.08 0.08
Chipped PaileIS 3,000 100%' 3,000 0 0 0 0 0 0 0 0
Ernergeftcy Bain Sediment 14,600 2S%' 3,6S0 0.'2 0.1l .12 O.OJ 4.7 1.17 3.34 1.33
Emergency Bum Soil 162,500 25%' 40,62' 1.46 0.37 0 0 0 0 1.46 037
NOI1h DiICh ~im<nl 20,770 25%' '.192 1.41 0.35 0.03 0,0\ 0.1 0.03 1.54 0.39
NOI1h DiICh Soil 87,500 2' %' 21,875 0.48 0.12 0 0 0 0 0.48 0.12
Ioeals 8,761,301 "'a 6,786,940 124.89 104.S2 2.83 2.71 202.1 197 329.81 304.28
./. II.c.2 Maamal 77% 84". 96% 97% 92%
- --
44
Notes for Table 1
Note I -This percentage is based on the fact that majority of the soil contamination is due to handling yellowcake, empty yellowcake drums and
spills from the purification portion of the process. The 1986 rupture of a loaded UF6 product cylinder and routine releases from the facility vents
contributed the balance of the soil contamination.
Note 2 -This percentage is a rough estimate of the volume of demolition wastes from the facilities, structures and equipment utilized in the ore
concentrate handling and purification activities.
Note 3 -This percentage is based on the fact that all the wastes in these categories resulted from the chemical conversion steps in the process.
Note 4 -All materials identified by this note are the result of handling and storing raffinate sludge.
Note S -The interim soil storage cell contains contaminated soils collected following the 1986 accidental release of UF6, soils from excavations in
the solvent extraction yard (purification system) and other materials from the handling and purification of ore concentrates.
Note 7 -Most of the uranium ore concentrate delivered to the site was shipped in palletized 55-gallon drums.
Note 7 -The Sanitary Lagoon was contaminated from spills associated with the purification process.
Note 8 -These two areas received wash-downs from the cleanup following the 1986 accident. In addition, they were used temporarily to store
raffinate sludge.
"0" values generally mean radionucIide content is at or slightly above natural background
45
II
TABLE 2
CONSTITUENT CONCENTRATIONS IN SFC SOILS AND SLUDGES VERSUS MILL TAlUNGS
SFC SFC Average Inactive "Typical"
Constituent Raffinate Sludge" Soils· U Mill Tailingsb Soilb
Uranium (pCilg) 2.500 -19,200 <0.67 -1,548 38 -380 0.75
Avg -8990
Th-230 (pCi/G) 2,930 -48,200 0.1 -6.4 340 -1,000 0.38
AV!l-23030
Ra-226 (pCi/g) <14 -190 0.1 -1.2 340 -1,000 1.6
Av~-118
Arsenic (uq/cll 17.3 -1 350 <10 -27.9 0.8 -254 6
Barium ~(g) 13.9 -2.750 26.5-262 18 -3,860 SOD
Cadmium~g) <0.7 <0.7 -5.6 0.07 -8.7 0.06
Chromium (uq/q) 15.2 -259 5.2 -32.7 1-2030 100
CODDer~g} 14.8 -794 2.6 -71.4 3 -1160 20
Iron (ug/gl 1,060 -58 000 6680 -45400 90 -213,000 38,000
Lead~/g) <10 -515 <10 -129 2.5 -3,060 10
Mercury (~/g) 0.02 -0,34 <0.01 -0.05 0.001 -109 0.03
Selenium (~/g) <10 -87.2 <10 0.2 -391 0.2
Silver (uq/g) <0.6 -65.5 <0.6 0.03 -3.8 0.1
Vanadium t~/g) <0.6 -3,950 10.2 -43.6 80 - 3 990 100
Zinc~/g' <0.5 -579 <0.5 -150 17 -359 50
Results obtained during SFC Site Characterization and RCRA Facility Investigation activities, and reported in the subsequent results
reports.
I
I
I
Data provided for the average inactive mill tailings column represent the range in average concentrations measured at each of 19
tailings piles. Thorium-230 activity concentration is assumed to be the same as radium-226 activity concentration. Data from Table 3-2
and EPA-520/4-82-G13-1, "Final Environmental Impact Statement for Remedial Action Standards for Inactive Uranium Processing Sites
(40CFR192r, Volume I, (Final Report), Office of Radiation Programs, Washington D.C., October, 1982.
46
ORE
CRUSHING
AND
GRINDING
ACID
LEACHING
FIGURE 1 -PROCESS FLOW DIAGRAM
TYPICAL ACID-LEACH URANIUM MILL
COUNTERCURRENT
.--~~ DECANTATION
(CCD)
SOLVENT
EXTRACTION
AND
STRIPPING
,
PRECIPITATION
AND
FILTRATION
47
TAILINGS,
SLIMES,
LIQUID
WASTES TO
PONDS
~--+l ... DRYING
ORE
CONCENTRATE
PACKAGING AND
SHIPPING
FIGURE 2 -PROCESS FLOW DIAGRAM
SFC URANIUM ORE CONCENTRATE PURIFICATION
ORE
CONCENTRATE
ACID
LEACHING -
AND CONCENTRATION
SOLVENT
EXTRACTION
AND
STRIPPING
CONCENTRA TION
48
LIQUID
WASTES
(RAFFINA TE)
TO PONDS
THERMAL
DENITRA TION
" URANIUM
PRODUCT TO
CONVERSION
PROCESS
URANIUM MILLING ACTIVITIES
AT SEQUOYAH FUELS CORPORATION
1. INTRODUCTION
Sequoyah Fuels Corporation (SFC) describes previous operations at its Gore, Oklahoma, uranium
conversion facility as: (1) the recovery of uranium by concentration and purification processes;
and (2) the conversion of concentrated and purified uranium ore into uranium hexafluoride (UF6),
or the reduction of depleted uranium tetrafluoride (UF4) to UFo. SFC contends that these
operations occurred in separate areas within the processing buildings or, in some cases, within
separate buildings, and created separate and distinct waste streams.
The staff has previously considered the issue of classifying the waste from the front-end
processes of SFC's facility as 11 e.(2) byproduct material. In a July 1993 memorandum to the
Commission, the Executive Director for Operations (EDO), supported by the Office of General
Counsel (OGC), concluded that the waste was not 11 e.(2) byproduct material. This conclusion
was based on the historical view that UF6 conversion plants had not been considered as uranium
mills and were not contemplated as such by the Uranium Mill Tailings Radiation Control Act
(UMTRCA) of 1978. Consequently, these wastes were considered source material, along with the
wastes generated later in the conversion process, because of their concentration and where they
were processed.
OGC has reconsidered this position, since the regulatory definitions of uranium milling and 11 e.(2)
byproduct material are process-related definitions and not restricted to a particular location of
activity nor the physical characteristics of a material. Although the tailings and wastes from the
front-end of SFC's facility can continue to be classified as source material (physical characteristic
of the material), OGC believes that this material can also be classified as 11 e.(2) byproduct
material if the processes that took place at the front-end of SFC's facility can be considered a
continuation of uranium milling. As a result, the front-end wastes from SFC could fall under the
legislative and regulatory definitions of two different licensed materials. This would allow the use
of the decision-making framework in Attachment 6. As detailed below, OGC's view of wastes at
SFC is supported by the staff's understanding of what constitutes uranium milling.
2. WHAT CONSTITUTES URANIUM MILLING
Title 10, Code of Federal Regulations (10 CFR) 40.4 provides the following definitions of uranium
milling and byproduct material:
Uranium milling means any activity that results in the production of byproduct material, as
defined in 10 CFR 40.4.
Byproduct material means the tailings or wastes produced by the extraction or
concentration of uranium or thorium from any ore primarily for its source material content,
including discrete surface wastes resulting from uranium solution extraction processes.
Underground ore bodies depleted by such solution extraction operations do not constitute
"byproduct material," within this definition.
Attachment 5
With the exception of "byproduct material," as defined in section 11e. of the [Atomic Energy]
Act, all other terms defined in section 11 of the Act shall have the same meaning when used
in the regulations in this part.
A fundamental, plain-language, working definition of uranium milling can be constructed from the
somewhat circular references contained in the above regulatory definitions:
Uranium milling is an activity or series of processes that extracts or concentrates uranium
or thorium from any ore primarily for its source material content, and the resulting tailings or
wastes are 11 e.(2) byproduct materiaL 1
The regulatory and working definitions of uranium milling and byproduct material are definitions
based on a process rather than the location of an activity or the characteristics of a material. The
regulations do not address when milling is completed. Once the fuel cycle is beyond natural
uranium oxide, and conversion processes is initiated, the milling process is clearly completed.
Source material is clearly defined by its characteristics in 10 CFR 40.4 as:
"Source material means: (1) Uranium or thorium, or any combination thereof, in any
physical or chemical form or (2) ores which contain by weight one-twentieth of one percent
(0.05%) or more of: (i) Uranium, (ii) thorium or (iii) any combination thereof. Source material
does not include special nuclear materiaL"
Ore is not defined in the uranium milling regulations nor its enabling legislation. The common-use
definitions of ore, as defined in Webster's Ninth New Collegiate Dictionary, are: (1) a mineral
containing valuable constituent (as metal) for which it is mined and worked; (2) a source from
which valuable matter is extracted. For the purposes of alternate feed at licensed conventional
uranium mills, the staff developed the following working definition of ore (NRC, 2000):
"Ore is a natural or native material that may be mined and treated for the extraction of any
of its constituents or any other matter for which source material is extracted in a licensed
uranium or thorium milL"
This working definition is consistent with the common-use definition and was constructed with a
limitation on where the activity occurred (Le ., a uranium mill), to allow the use of non-typical feed
stocks in conventional uranium mills. It eliminates the creation, by definition, of large quantities of
mixed waste (commingled Atomic Energy Act (AEA) and non-AEA waste materials) in uranium mill
tailings impoundments by classifying all the material as 11e.(2) byproduct material. Side-stream
process circuits at mineral processing facilities, which are licensed because they extract uranium
1 As stated in NRC's December 13, 2000, Director's Decision, although pre-UMTRCA mill tailings may be
chemically, physically, and radiologically similar to 11 e.(2) byproduct material, it is not material over which NRC has
jurisdiction.
2
source material; to disposing tailings are conducted in a continuum at one location. In the context
of regulatory oversight, the licensed processes that comprise milling occur at one location, a mill.
Non-conventional processing, also identified in NUREG-0706, comprise other technologies, such
as in-situ extraction of natural ore bodies, leaching uranium-rich tailings piles or low-grade ores
(often called heap leaching), and uranium extraction from mine water and wet-process phosphoric
acid. Non-conventional processing usually encompasses one or several of the processing stages
(depending upon the application) that are performed at a conventional milling facility. The
distinction among non-conventional milling activities is that these activities often occur at locations
other than a uranium mill.
As an example, the extraction circuit, precipitation circuit, drying and packaging at an in-situ
extraction operation are conducted in a centralized processing plant; whereas the leaching "circuit"
is performed underground, often at a location different than where the other process circuits occur.
The depleted ore body is not considered 11 e.(2) byproduct material; however, discrete wastes
generated at the surface are managed as 11 e.(2) byproduct material and disposed of at a licensed
uranium mill tailings facility. Often times, the leaching occurs at distant wellfields. The extraction
circuits, using an ion-exchange resin technology, are located at small decentralized satellite
facilities near the distant wellfields. The partially processed source material is then transported by
truck to the central processing plant for final concentration, purification, and packaging. In this
example, the source material extraction occurs at one location and the concentration / purification
occur at another.
As another example, when heap leaching was performed in the past, the low-grade ore was
leached above-ground with acid on a constructed leaching pad at a remote location. The diluted
source material solution was trucked to a uranium mill or partially concentrated at the remote
location and then shipped. The depleted ore heap was then managed as 11 e.(2) byproduct
material in a manner similar to conventional uranium mill tailings. For these activities, the extraction
occurred at a different location than the remainder of the processing.
The dispersed milling operations typified by non-conventional uranium processing resemble the
milling operations in the early days of the uranium industry during the 1950s and 1960s. Many of
the early mills licensed by the Atomic Energy Commission (now the UMTRCA Title I mills) were
often existing metal extraction mills refitted to process uranium ore or were constructed to perform
only one or a few of the milling processes at one location. For example, the mill in Lowman, Idaho,
processed dredge material from other locations by mechanical separation and sent produced solid
material to other mills for chemical extraction, concentration, and purification. Other mills, such as
the one in Green River, Utah, were built as ore-upgrading mills, which performed ore grinding and
separation. The up-graded ore concentrate was shipped by rail to another mill located in Rifle,
Colorado, where it was processed into uranium oxide (DOE, 2002). Each of these mills and
several others accomplished only a portion of the milling process at dispersed locations, but were
all licensed operations at one time.
Regardless of the characteristics, wastes from uranium milling are classified as 11 e.(2) byproduct
material. The characteristics of the wastes from non-conventional milling can vary according to the
composition and characteristics of the incoming feed material. Heap leach wastes resemble the
4
coarser fractions of conventional uranium mill tailings, and may be devoid of the finer fractions,
because the aggressive ore grinding has not occurred. In-situ extraction wastes resemble the finer
fractions of conventional uranium mill tailings, since the leaching occurs underground and the ore
grinding does not occur at all. Similarly, the characteristics from each process step within a
conventional uranium mill will vary among themselves.
Wastes generated during the later concentration and purification stages at a conventional mill (e.g.,
the solvent extraction processes) will have little or no radium composition in the waste stream,
since the radium-bearing fractions are typically removed in the early stages. The distinctiveness of
these later-stage wastes is lost when they are ultimately blended with other waste streams in the
tailings impoundment. If, for some reason, these wastes had been segregated and handled
differently at a conventional uranium mill, they would still have been managed as 11e.(2) byproduct
material, even though their characteristics would be dissimilar to other wastes from earlier process
stages.3
3. SFC INITIAL PROCESSING AS URANIUM MILLING
A reasonable argument can be made, from a technical perspective, that the initial processing
conducted at the SFC facility in Gore, Oklahoma, is merely the completion of the milling process
started at other locations. Uranium milling entails many processing steps, which, as previously
discussed, are not required to occur at a single location, but often do. The later stages at a
conventional mill involve concentrating and purifying the source material, using solvent extraction,
precipitation, and drying processing circuits. These same processes were performed at the front-
end of the SFC facility for the same reason they are conducted in the later stages of the milling
process at a conventional mill.
The source material that is processed at a conventional uranium mill and was processed at the
front-end of the SFC facility are the same chemical form, natural uranium oxide. The later stages
at the SFC facility converted the natural uranium oxide (typically U30 8) into UF6 for subsequent
processing into special nuclear material at an enrichment facility. The conversion to a new
chemical form, which occurred midway through the processing at SFC, represents a clear
demarcation between uranium milling and uranium conversion. The other licensed commercial
conversion facility, in Metropolis, Illinois, currently does not include the source material purification
stage before conversion to UF6.4 The processes at that facility are entirely geared toward
converting U30 a to UF6. Conventional uranium mills are able to concentrate and purify the U30 S to
such a degree that the Metropolis conversion facility can process it without the risk of impurities
compromising the conversion processes. Other mills, whether antiquated or because of
differences in the incoming ore composition, had not achieved that level of purification. The SFC
3 The classification and management of wastes as 11 e.(2) byproduct material are uniquely limited to uranium
milling. Other fuel-cycle processes that concentrate or purify uranium, such as during conversion, enrichment, or fuel
manufacturing, would not meet the legislative constraints of milling and the resulting wastes would not meet the
classification of 11e.(2) byproduct material.
4 Although uranium milling was not performed at Honeywell in the recent past, the staff is determining whether
uranium milling was ever performed at the facility. If so, some wastes could be potentially classified as 11e.(2)
byproduct material. Honeywell has not indicated that it would pursue this classification with NRC.
5
facility accepted the UPs from those facilities and further processed it to remove those impurities
and it produced an acceptable grade of U30 S for conversion.
Whether the incoming source material to SFC meets the definition of "ore" is not relevant to the
argument of waste classification. Declaring an incoming feed for individual milling-process stages
as "ore," throughout the continuum of milling, is an artificial and unnecessary distinction. When
milling is done at one site, the feed for each stage is not considered when making 11 e.(2)
byproduct material determinations for the classification of wastes for each stage. Similarly,
uranium milling has, and does, occur at different locations under regulatory oversight without the
construct of individual processing feeds meeting the definition of "ore." Thus, there is no need to
consider the feed at SFC as ore, because the front-end process at SFC was simply the last step in
the milling activity, which occurred away from a uranium mill, before the material was suitable for
conversion to UF6.
SFC, with the front-end purification process, had been licensed as a conversion facility under 10
CFR Part 40 at the time UMTRCA was enacted. In retrospect, a pure licensing separation
between the front-end purification processes and the remaining conversion processes could have
been made at that time. However, such a distinction would have probably been viewed as
unnecessarily burdensome for the time, given that protection of public safety, the environment, and
the common defense were maintained under the existing license.
4. REFERENCES
DOE (U.S. Department of Energy). 2002. "Draft Site Observational Work Plan for the Green River,
Utah, UMTRA Project Site." UMTRA Ground Water Project document GJO-2002-290-
TAR, February 2002.
NRC (U.S. Nuclear Regulatory Commission). 1980. NUREG-0706, "Final Generic Environmental
Impact Statement on Uranium Milling," Project M-25. Office of Nuclear Material Safety and
Safeguards.
NRC (U.S. Nuclear Regulatory Commission). 2000. Regulatory Issue Summary 2000-23, "Recent
Changes to Uranium Recovery Policy." Accession Number ML003773008 November
30,2000.
6
DECISION-MAKING FRAMEWORK
1. BACKGROUND
Since the passage of the Uranium Mill Tailings Radiation Control Act (UMTRCA) of 1978,
decommissioning and waste disposal programs have significantly changed. States and Compacts
had at one time planned on developing a dozen new low-level radioactive waste disposal sites,
but have been unable to develop any new regional disposal capacity under the Low-Level Waste
Policy Act of 1980. As a result, future disposal options are uncertain. Costs for conventional low-
level radioactive waste (LLW) disposal have increased by more than a factor of 10 as disposal
options have become more limited. At the same time, there are now large programs for
remediating contaminated sites, including the Nuclear Regulatory Commission's (NRC) Site
Decommissioning Management Program (SDMP).1 These programs have of millions of cubic
meters of radioactive waste that required isolation and/or disposal. For comparison, much of the
wastes from these sites, that are contaminated by uranium and thorium, would be classified as
very low-level waste if the wastes were under the purview of the European Community.
With the small number low-level radioactive waste (LLW) disposal facilities and the high costs of
disposal, generators have pursued other options. Several Resource Conservation and Recovery
Act (RCRA) hazardous waste facilities are authorized by their State regulatory agencies to accept
very low-activity nuclear fuel cycle waste for disposal and are an option for certain types of low-
activity waste at NRC-licensed sites. NRC has granted approval for disposal at several of these
sites for "unimportant quantities" of source material. The U.S. Army Corps of Engineers (COE), in
implementing the Formerly Utilized Sites Remedial Action Program, has also explored new and
less costly options for disposal of low-activity waste, and continues to use RCRA Subtitle C
facilities. In addition, COE has sent materials to uranium mills as an "alternate feed material" for
natural ores. The materials from a contaminated site, which normally would be considered waste,
are processed in the uranium mill, the residual uranium extracted, and the tailings disposed of in
the existing tailings impoundment. In some cases, waste from contaminated sites have also been
directly disposed of in mill tailings impoundments. With the decline in the uranium mining and
milling business over the last two decades, companies with uranium mills, and the National Mining
Association representing these companies, have pursued this business and have asked NRC to
reconsider its policies that govern direct disposal and alternate feed material and allow for the
expanded use of tailings impoundments for disposal of other types of materials.
NRC has been aware of these changes in the external environment and the need for revising its
regulatory program. The rulemaking on transfer of "unimportant quantities" of source material will
address transfers for disposal of these materials and clarify NRC's expectations for such
disposals. NRC's Jurisdictional Working Group,2 consisting of representatives from Federal
agencies with responsibilities for low-activity materials and the Organization of Agreement States
1 In a staff requirements memorandum dated August 22, 1989, the Commission directed the staff to develop a
comprehensive strategy for NRC activities to deal with contaminated sites, to achieve closure on decommissioning
issues in a timely manner.
2 The Jurisdictional Working Group was formed in response to the Commission's SRM on SECY -99-259, dated
March 9, 2000.
Attachment 6
and Conference of Radiological Control Program Directors, is examining methods for more
rationally addressing risk management of low-end materials, particularly technologically enhanced
naturally occurring radioactive materials (TENORM) and low-activity source materials. In
November 2000, at the direction of the Commission, the staff issued NRC Regulatory Issue
Summary 2000-23, "Recent Changes to Uranium Recovery Policy," that provides more flexibility in
allowing non-11e.(2) byproduct material to be disposed of in uranium mill tailings impoundments.
All these changes are informed by the increased use of risk insights. Waste disposal regulations
are often based on the pedigree of the waste (uranium mill; spent fuel; and non-fuel cycle
activities, such as oil drilling, that produce TENORM, etc.) rather than the hazard that wastes
pose. Consideration of risks and alternative means for managing risk have opened up other
options, such as RCRA hazardous waste facilities for low-activity source material.
In 1997, NRC issued its License Termination Rule (LTR) in 10 CFR Part 20, Subpart E. The rule
allows for restricted release of sites under certain conditions. The rule defines conditions for
leaving greater amounts of residual radioactivity on site than for unrestricted release. In practice,
however, no NRC licensee has yet been able to find an independent third party/custodian who
would enforce the institutional control provisions of the rule. In effect, the only options available to
many licensees with sites contaminated with uranium or thorium is to clean up to unrestricted
release levels or to keep their site under a specific license. The U.S. Department of Energy
(DOE) has thus far not been willing to exercise its authority, under section 151 (b) of the Nuclear
Waste Policy Act (NWPA) of 1982, to become the long-term custodian for sites desiring restricted
release. DOE does not have similar discretion if the residual radioactivity is 11 e.(2) byproduct
material.
The staff believes that further improvements in risk-informing decisions are possible for managing
and disposing of large volumes of wastes. These improvements also have the potential to
increase competition for waste disposal, decrease the burden on licensees, and better harmonize
the regulation and management of radioactive materials in the U.S. In this section, the staff
discusses considerations for guiding present and future decision-making on the disposition of
wastes from the decommissioning of sites contaminated with large volumes of uranium and/or
thorium, when those materials can be viewed as meeting more than one regulatory definition of
licensed material, especially 11 e.(2) byproduct material. NRC in the past may have narrowly
defined the classification of materials and unnecessarily constrained the remediation and disposal
options. NRC developed its Strategic Plan (NUREG-1614) in late 2000 and began to use it in the
Agency's planning and budgeting process, including evaluation of policy options, using the four
performance goals from the Strategic Plan. Thus, previous staff positions are not necessarily
based on the more recent and broader consideration of the four Strategic Plan performance goals.
Maintain safety, protection of the environment, and the common defense and security;
Increase public confidence;
Make NRC activities and decisions more effective, efficient, and realistic; and
Reduce unnecessary regulatory burden on stakeholders.
Above all, this framework assures that available risk information and other important factors are
factored into the proper disposition of waste materials, within the constraints of the legislative and
regulatory requirements for the licensed material.
2
In this Attachment, the staff discusses specific considerations that go into achieving the above four
performance goals for these types of sites. The objective of this framework is to identify effective
and efficient solutions, as long as they achieve adequate protection of the public health and safety
and meet the laws and regulations that apply to remediation.
This framework applies to sites having large volumes of materials contaminated with relatively low
concentrations of uranium and/or thorium. These materials need to be either removed from the
sites for processing or disposal and/or stabilized onsite so that they do not present a significant
hazard to the public or the environment. The volumes of materials at these sites are large and
may be several hundred thousand cubic meters or more. Thus, substantial funds may be needed
to dispose of this material offsite, since disposal costs can range from $165 -700 per cubic meter
($5-20 per cubic foot) for these types of waste. Differences between different disposal options
can be substantial, given the large volumes involved. In addition, licensees may request restricted
release scenarios for sites because of the cost burden for offsite disposal or processing.
The staff intends to use this framework for decision-making, as described below, and will discuss
these criteria in papers sent to the Commission on specific sites.
2. FRAMEWORK FOR DECISION-MAKING
Decision-making for sites contaminated with large volumes of low-activity waste is complex and
involves a number of different factors--interpretations of law, assessment of risks to demonstrate
compliance with applicable laws and regulations, large costs, and significant interest from affected
parties. These stakeholders include licensees who are responsible for remediating a site;
members of the public who are affected by wastes left on site or disposed of at another site; and
disposal facility operators who are competing for business, among others. These decisions often
involve policy matters and consideration of all the factors, together. The following criteria are
intended to help identify all the important issues that need to be considered in the decisions to
classify long-lived, low-activity waste that is present at many SDMP sites. At the end of each
criterion, its specific applicability to the SFC request to classify much of its waste as 11 e.(2)
byproduct material is discussed.
1. Consistent with law and regulations -Classification of wastes is one of the primary factors
affecting the remediation of contaminated sites. Whether a waste is LLW, TENORM,
11e.(2) byproduct material, or pre-UMTRCA mill tailings determines the set of regulations
that apply for cleanup and disposal, and may have a significant impact on the costs of
remediation, even though these wastes are often similar in their radiological hazards.
Classification of wastes as 11 e.(2) byproduct material or some other waste category must
be consistent with existing law and regulations.3 Legislative and regulatory language is
often developed to broadly address issues, but at the same time, allows some flexibility in
implementation and interpretation. When a material clearly falls completely within the
constraints of a particular legislative or regulatory definition, absent any compelling
reasons, the staff does not intend to expend any effort to remove or modify that
3 Licensees, of course, may request, and NRC may grant, exemptions to regulations under certain conditions.
However this section, does not address exemptions.
3
determination. However, when a statute or regulation allows broad interpretations, thus
allowing a material to meet more than one definition of radioactive material or waste, for
example, the staff will consider the consequences of each classification. As an example,
uranium mill tailings licensed after 1978 that contain greater than 0.05% source material
could be considered to be either 11 e.(2) byproduct material or licensable source material
(and therefore LLW). In such a case, other available information will be examined in light
of the factors identified here, to decide the best disposition of the material.
SFC Considerations: SFC's proposal to classify some front-end material from the
conversion facility as 11 e.(2) byproduct material is an example of the kind of approach that
can be taken to classify waste (and therefore define a decommissioning approach) in a
manner that is safe, meets applicable laws, and enables consideration of other important
factors in remediation. Attachment 5 discusses in detail the staffs justification for
classification of front-end SFC wastes as 11 e.(2) byproduct material. OGC has concluded
that such a position is consistent with laws and regulations, for the reasons described in
the analysis.
2. Maintain safety, protection of the environment. and the common defense and security -
This factor, like the first, must be met when deciding the proper disposition of a material.
This factor embraces NRC's regulatory mission over the civilian uses of radioactive
materials such that the proposed disposition must assure protection of public health and
safety, the environment, and the common defense. Ultimately, the classification and
disposition of a material must assure that this factor is adequately achieved.
There are opportunities for more risk-informed management of low-activity materials
containing uranium and/or thorium. Presently, for example, the classification of a material
as 11 e.(2) byproduct material or licensable source material often allows for only one
disposal method for each, even though the physical, chemical, and radiological
characteristics, and the resulting risk, may be similar. In some cases, 11e.(2) byproduct
material, source material, TENORM, and other types of LLW could be safely disposed of
in either mill tailings impoundments, LLW disposal facilities, or RCRA Subtitle C, or even
Subtitle D, facilities (for very low concentrations). These facilities use different methods
for managing risk that have been developed consistent with the laws and regulations for
each program. Although the legal definitions may preclude disposal in alternative facilities,
risk considerations may not. Thus, at the request of a licensee, where flexibility is
appropriate and legally allowed for classifying materials, the staff will use that flexibility to
determine whether other types of disposal facilities may be protective.
SFC Considerations: Wastes consisting of yellowcake and materials contaminated with
yellowcake have, since the passage of UMTRCA, been considered to be 11e.(2)
byproduct material at uranium mills and are disposed of in tailings impoundments at mills
[by definition, all wastes generated at a uranium mill are 11 e.(2) byproduct material].
Thus, the disposal of front-end wastes from SFC in a tailings impoundment would be
consistent with current practice, although the amounts and percentages of yellowcake vs.
other, more conventional mill tailings, would differ.
4
There are also some differences in the radiological constituents between SFC wastes that
are proposed to be 11 e.(2) byproduct material, and the average tailings in an
impoundment. These tailings usually contain small amounts of uranium on average (38-
380 pCi/g) and larger amounts of radium (340-1000 pCi/g of Ra-226) and thorium-230
(340-1000 pCi/g). The SFC proposed 11e.(2) byproduct material on average contains
approximately 300 pCi/g of uranium, 10 pCilg of Ra-226, and 580 pCilgram of Th-230.
The raffinate sludge at SFC contains an average of 8990 pCi/g of uranium, and 23,030
pCi/g of Th-230,4 but when mixed with the lower concentration soils and other 11e.(2)
byproduct material at SFC, produces a tailings impoundment with average concentrations
of uranium and thorium in the range of conventional mill tailings. The radium content is
considerably less at SFC than conventional mill tailings, and thus the radon hazard is less.
It should be noted that the above values for conventional mill tailings are average
concentrations, and the concentrations of waste vary with the stage of the milling process.
Uranium mills also dispose of yellowcake as 11 e.(2) byproduct material, and its
concentrations of uranium and thorium are similar to those of yellowcake and other higher
activity wastes at SFC.
From a risk management standpoint, whether yellowcake or front-end wastes are disposed
in a tailings impoundment, which mainly relies on the RCRA design provisions for
hazardous waste facilities, or under the restricted release provisions of the L TR, is not
significant. Both are protective of public health and safety. The 10 CFR Part 40, Appendix
A, provisions, which are based on RCRA, rely on engineered barriers and long-term
controls to ensure isolation of the waste. The L TR provisions rely on reducing the residual
radioactivity at the site to levels that would not result in radiation exposures over 25
mrem/yr and as low as is reasonably achievable with restrictions in place, and 100
mrem/yr or 500 mrem/yr, if restrictions fail. Although these regulations are different, both
can be protective for the SFC wastes. The back-end wastes from the SFC conversion
processes, which will likely be proposed for disposal in the tailings impoundment, are also
expected to be safely isolated, given the requirements of 10 CFR Part 40, Appendix A.
3. Make NRC activities and decisions more effective, efficient. and realistic -There are
several considerations affecting this factor that may arise for a site undergoing cleanup.
They include the following:
Staff use of established procedures and practices (such as 10 CFR Part 40,
Appendix A) for onsite stabilization, in lieu of developing new or unique ones.
Staff use of the restricted release provisions of the L TR in 10 CFR Part 20,
Subpart E, which are relatively new and haven't yet resulted in a completed
termination and require experience in the establishment of procedures and
practices.
4 January 5, 2001, letter from John Ellis, Sequoyah Fuels Corporation, to Larry Camper, NRC, Table 2.
Average concentrations of total 11e.(2) byproduct material at SFC derived from values in tables.
5
SFC Considerations: The staff believes that a prompt, well-documented, and reasoned
decision on the licensee's proposal to classify some wastes as 11 e.(2) byproduct material
will lead to the most effective and efficient use of resources by all parties. Assuming that
the classification issue is resolved , finding a third party/long-term custodian for the site
under the L TR is expected to be problematic. DOE is proposing to transfer its stewardship
responsibilities to another Federal agency, and is therefore unwilling to proceed with a
memorandum of understanding that would define the conditions under which it would
assume responsibility for NRC sites under Section 151 (b) of the NWPA. Determining
whether DOE's successor for stewardship would be willing to take the SFC site is unclear
and will take staff time to resolve. SFC has been unable, to date, to find an organization
willing to accept the independent third party/custodian responsibilities needed to have a
restricted release under the L TR . Thus, Option 1 may not be viable, and it would not be
efficient for NRC staff to continue its review of the current SFC L TR decommissioning plan
and develop a final Environmental Impact Statement (EIS) given this uncertainty. This is
consistent with the staffs existing phased approach to reviewing future restricted use
proposals which necessitates resolution of the institutional control issue before other
technical reviews and the EIS are started. Staff and licensee resources will thus be used
more efficiently.
Decommissioning under 10 CFR Part 40, Appendix A, in Option 2 would provide more
certainty for success and is expected to be more efficient. Staff requested DOE's opinion
on SFC's proposal. DOE responded, in a May 2001 letter (Attachment 8), stating that it
does not have any formal position on the issue, leaving classification of the material up to
NRC. DOE acknowledged its statutory responsibilities under section 83 of the Atomic
Energy Act (AEA), as amended by UMTRCA, and requested prior notice, for budget
purposes, if NRC decides that the materials from the front-end process are to be defined
as 11e.(2) byproduct material. DOE did not address whether it would accept non-11e.(2)
byproduct material in the disposal cell. Before the staff could approve a licensing action
for 11 e.(2) byproduct material, SFC would need to resolve its approach for the non-11e.(2)
byproduct material.
4. Reduce unnecessary regulatory burden on stakeholders -The licensee is primarily
responsible for determining the safety of an operation and the disposition of its licensed
material. This is considered and integrated into the prevailing laws and regulations, and is
a necessary burden that the licensee must bear. NRC assures the licensee's actions are,
at a minimum, adequate to address safety. As the regulator, NRC might impose additional
burdens on the licensee, either intended or unintended, which mayor may not enhance
the adequacy of safety. The staff should be aware of those burdens when evaluating
proposed alternatives and interpreting legal and regulatory requirements. The staff
should take those burdens into account and discriminate between those that are
necessary and those which are not. The staff, for example, is generally aware of a range
of disposal costs for different types of facilities and is able to approximate the cost of
disposal in consideration of potential economic burdens.
Because licensees are best equipped to determine what the burdens may be, their specific
proposals to NRC for disposal or decommissioning will consider this factor. The staff will
also consider what the burdens might be and, more importantly, not rule out approaches
6
that are safe and meet applicable laws and regulations. This is particularly important for
sites such as those where the cost differences between different regulatory approaches
can be so significant.
For any new interpretations or changes from previous staff positions, the staff will also
consider what potential "unintended consequences" might result, so that potential impacts
on previous decisions or future decisions are anticipated and factored into the decision-
making process.
SFC Considerations: SFC thus far has been unable to identify an independent third
party/custodian willing to accept the responsibilities needed to have a restricted release
under the L TR. If SFC were unable to implement its proposed option for classifying front-
end material as 11 e.(2) byproduct material, then, as a practical matter, offsite disposal of
all of the wastes would be required, and would cost substantially more than an onsite
remedy.5 This assumes that SFC would continue to be unable to identify an independent
third party/custodian for the site, to use restricted release provisions of the L TR. The
completion of an Memorandum of Understanding with DOE, that would have allowed for
the transfer of sites to DOE as the long-term custodian under section 151 (b) of the
(NWPA), is highly uncertain. DOE is exploring transferring its stewardship responsibilities
to another agency, and the staff believes that it will be difficult for SFC to obtain a
commitment from DOE or its successor, if the responsibilities are transferred. In any
event, a DOE transfer to another agency could take more time and thus delay SFC
decommissioning, and use more of the limited SFC funds for decommissioning.
Classification of the front-end wastes as 11 e.(2) byproduct material might also provide
other alternatives for SFC to remediate the site, in addition to installing a 10 CFR Part 40,
Appendix A, disposal cell, such as direct disposal of the material in an existing tailings
impoundment. SFC is in the best position to determine how to minimize unnecessary
regulatory burdens.
With respect to "unintended consequences" from an NRC decision to classify front-end
wastes at SFC as 11 e.(2) byproduct material, the staff believes that the flexibility offered in
this case in interpreting UMTRCA is limited to the milling process (i.e., activities involved
with the extraction or concentration of uranium) and cannot foresee any adverse
consequences in this limited decision. The only other commercial conversion facility in the
U.S., the Honeywell plant at Metropolis, IL, currently does not perform milling operations.6
The three other sites in the SDMP that are considering restricted release are clearly
different from SFC and could not be considered for an 11e.(2) byproduct material
classification of their wastes. Once the fuel cycle is beyond natural uranium oxide, and the
conversion processes is initiated, the milling process is clearly completed.
5 SFC has not provided a cost estimate for an 11e.(2) cell. The staff estimates, based on the cost for a cell
meeting the 10 CFR Part 40, Appendix A, requirements, that SFC would save several tens of millions of dollars with an
onsite remedy.
6 Although uranium milling was not performed at Honeywell in the recent past, the staff is determining whether
uranium milling was ever performed at this facility. If so, some wastes could be potentially be classified as 11e.(2)
byproduct material. Honeywell has not indicated that it would pursue this classification with NRC.
7
5. Increase public confidence -Each site has specific public confidence issues that need to
be considered. Holistically, the staff expects that the public's confidence in NRC's
regulatory activities will increase if all the other previous factors are adequately addressed
and communicated to all stakeholders. However, site-specific public issues and concerns
may overtake the importance of some of the other factors in the decision-making.
SFC Considerations: The staff will gain a thorough understanding of the public's views on
these alternatives when it prepares the EIS and publishes it for public comment. In the
meantime, the staff is aware of several of the views of stakeholders. The State of
Oklahoma is opposed to becoming the third party for enforcing institutional controls for a
license terminated under the restricted release provisions of the L TR. The staff believes
that the State is more open to a site that would be under the control of DOE as the
permanent landowner under UMTRCA, than continued delays in remediating the site. In
its recent undated letter (sent on April 11, 2002), the Cherokee Indian Nation stated that
while it prefers offsite disposal, if onsite disposal is necessary, it prefers that DOE be the
long-term custodian. The Cherokee Indian Nation also indicated that if onsite disposal is
necessary, it would be interested in being a contractor to DOE to carry out long-term care
and monitoring activities, but is not prepared to be the third party under the L TR. A few
members of the local public appear to be opposed to any onsite disposal remedy.
In theory, any decision which might facilitate decommissioning and minimize delays would
increase the likelihood of SFC's successful remediation of the site and termination of its
license. Thus, public confidence could be increased by Option 2 that offers the prospect
for a long-term custodian and a path to completion.
8
.. p -•
Department of Energy Comments on the
Sequoyah Fuels Corporation January 5, 2001 Proposal to Designate Certain
Material at the Gore, Oklahoma Site as Atomic Energy Act
Section lle.(2) Byproduct Material
The Sequoyah Fuels Corporation (SFC) January 5, 2001 proposal asserts that the
Nuclear Regulatory Commission (NRC) should designate approximately 77% (by
volume) of the process wastes and contaminated soils at its Gore, Oklahoma site
as Atomic Energy Act (AEA) section l1e.(2) byproduct material. The SFC
requests that NRC amend the SFC license to allow for the possession and on-site
disposal of 11 e.(2) byproduct material. If the SFC license is amended, SFC
would seek to dispose of the remaining 23% (by volume) ofnon-l1e.(2) waste in
the on-site l1e.(2) disposal cell. SFC proposes that the disposal and long-term
management ofthe non-l I.e. (2) material could occur pursuant to the NRC policy
on non-lle.(2) disposal in Ile.(2) disposal cells (60 Fed Reg. 49,296 (1995»
and/or pursuant to an exercise of the Department of Energy's discretionary
authority under the Nuclear Waste Policy Act (NWPA) section 151(b).
As a general matter, consistent with its responsibilities under section 83 of the
Atomic Energy Act of 1954, as amended by the Uranium Mill tailings Radiation
Control Act of 1978 (UMTRCA), the Department of Energy (DOE) is prepared to
take title to the land and 11 e.(2) byproduct material at NRC-licensed disposal
cells, at the time the II e.(2) license is terminated, if the State in which the
disposal site is located does not exercise its option to do so. The licensee would
need to transfer the land and byproduct material without cost to the United States,
and DOE's sole responsibilities, under a license issued by the NRC, would be to
monitor and maintain the site and take any emergency measures necessary to
protect public health and safety.
DOE has recently released the baseline estimate for the cost, scope and schedule
of its anticipated long-term stewardship responsibilities (A Report to Congress on
Long-term Stewardship). This analysis is based on projections that include
estimates of our future potential responsibilities under UMTRCA. These budget
and management planning projections identify 28 sites that may be transferred to
DOE for long-term stewardship under section 83 of the ABA, but do not take into
account the possibility of a transfer of the SFC site. Consequently, DOE would
need sufficient notice of a potential site transfer, so that it could take appropriate
actions to ensure that any necessary funds for long-term stewardship are available
to DOE at the time of transfer.
,. I A .-••
SFC proposes that, if its license is amended, the remaining non-II e.(2) material at
the site could be addressed by two different options: disposal in the on-site lle.(2)
disposal cell or disposal in a separate cell. If the NRC allows the disposal of the
non-II e.(2) material in the II e.(2) licensed disposal cell, DOE would expect that
the licensee would need to comply with the conditions set forth in the NRC staff s
1995 policy on the disposal ofnon-Ile(2) byproduct material in Ile.(2) disposal
cells before transfer of the cell to DOE.
If NRC allows the disposal ofthe non-Ile.(2) material in a separate cell, DOE's
decision whether to exercise its discretionary authority to accept the transfer of
the separate cell would depend in part upon compliance with the applicable
requirements for site transfer, the availability of resources for long-term
surveillance and maintenance, and the resolution of any outstanding liability and
dual regulation issues before transfer. We anticipate that, pursuant to our March
2001 agreement in principle, both NRC and DOE will continue to seek to develop
a memorandum of understanding that would define the criteria and process that
each agency would use to make determinations regarding the potential transfer of
non-Ile.(2), low-level waste sites to DOE.
2
MEMORANDUM TO: Martin J. Virgilio, Director
Office of Nuclear Material Safety
and Safeguards
FROM: Daniel M. Gillen, Chairman lRAJ
Differing Professional View Panel
March 8, 2002
SUBJECT: PANEL REPORT: REVIEW OF THE DIFFERING PROFESSIONAL VIEW
ON A COMMISSION PAPER ON "APPLICABILITY OF SECTION 11e.(2)
OF THE ATOMIC ENERGY ACT TO MATERIAL AT THE SEQUOYAH
FUELS CORPORATION URANIUM CONVERSION FACILITY"
(DPV-NMSS-2001 -01 )
In response to your November 29, 2001, memorandum on this subject, I hereby forward to
you the attached report of our ad hoc panel convened to review a Differing Professional View
(DPV). The DPV addressed the recommendations presented in a Commission Paper on the
applicability of Section 11 e.(2) of the Atomic Energy Act, as amended, to a portion of the waste at
the Sequoyah Fuels Corporation Uranium Conversion Facility.
Attachment: Ad Hoc Panel Report on DPV
cc: D. Sollenberger
A. Campbell
R. O'Connell
REPORT OF AN AD HOC PANEL
CONVENED TO REVIEW THE DIFFERING PROFESSIONAL VIEW ON
A COMMISSION PAPER ON "APPLICABILITY OF SECTION 11e.(2) OF
THE ATOMIC ENERGY ACT TO MATERIAL AT
THE SEQUOYAH FUELS CORPORATION
URANIUM CONVERSION FACILITY"
--------~~/-----------Daniel M. Gillen, Chairman
___________ --"5/ ______ _
Andrew C. Campbell, Member
________ ,/51 _________ __
Dennis M. Sollenberger, Member
Date: March 8, 2002
2
Purposes
The purposes of this Ad Hoc Panel were as follows: 1) to review the Differing Professional View
(DPV) on recommendations presented in the Draft Commission Paper on the "Applicability of Section
11 e.(2) ofthe Atomic Energy Act (AEA) to Material at the Sequoyah Fuels Corporation (SFC) Uranium
Conversion Facility," 2) to review the Draft Commission Paper with respect to the issues raised in the
DPV, and 3) to report to the Director, NMSS on the merits of the positions taken in the DPV with
regard to the recommendations of the Commission Paper.
Background
The SFC uranium conversion facility is one of the sites included in the Site Decommissioning
Management Plan. In 1993, SFC submitted its "Preliminary Plan for Completion of Decommissioning,"
in which it stated that certain activities at the site included the concentration of uranium from yellow
cake. SFC argued that the resulting wastes meet the definition of 11 e.(2) byproduct material, and the
site could be remediated under the Uranium Mill Tailings Radiation Control Act of 1978, as amended
(UMTRCA).
In a memorandum to the Commission (July 6, 1993), the NRC Executive Director of Operations, stated
that the Office of the General Counsel had provided an informal view that "the uranium contaminated
decommissioning wastes at Sequoyah Fuels do not fit the definition of 11 e.(2) byproduct material and
thus fall outside the coverage of the Act."
In March 1999, SFC submitted a decommissioning plan to remediate the site and terminate the license
in accordance with the 1997 License Termination Rule (L TR), in 10 CFR 20.1403, for license
termination under restricted conditions.
In January 2001 , SFC formally requested that the staff evaluate whether a portion of the SFC waste
could be considered as 11e.(2) byproduct material. The Division of Waste Management Commission
Paper prepared in response to that request discusses two options for responding to the request: (1)
continue with the historical view that would disagree with the SFC arguments, and continue
decommissioning the site under the L TR; or (2) agree with the SFC arguments and classify some SFC
waste as Section 11 e.(2) byproduct material. The staff concludes that both options are legally viable,
and ultimately, after discussing the advantages and disadvantages, recommends that the SFC waste
from the front-end of its Gore, Oklahoma operation be considered 11 e.(2) byproduct material.
Mr. Fliegel and Mr. Lusher reviewed the Draft Commission Paper and prepared a DPV. They believe
that in reaching its recommendation, the Draft Commission Paper does not adequately discuss the
complex issues involved. They considerthatthe significance of this decision is whether NRC adheres
to and appropriately follows legislation and regulations governing the remediation of mill tailings sites
and the disposition of 11 e.(2) byproduct material. They do not believe there is a significant safety
issue involved. They believe that the staff recommendation in the Draft Commission Paper arbitrarily
reinterprets the fundamental definition of 11e.(2) byproduct material and will create more problems
for the NRC in future site decommissioning activities under both the L TR and UMTRCA.
Discussion
3
Areas of Agreement in the DPV and Draft Commission Paper
Prior to discussing the areas of differing views, it is important to summarize some key areas of
agreement on this issue. The Draft Commission Paper and the DPV both consider the two options
for disposal of the Sequoyah wastes to be technically feasible and provide equivalent health and
safety protection. In addition, the Draft Commission Paper and the DPV both acknowledge that if the
wastes are 11e.(2) material, the Department of Energy (DOE) would be required to take custody of
the disposal area for long term care under the general license in 10 CFR 40.28.
The Draft Commission Paper and the DPV both acknowledge that approximately 20 to 25% of the
wastes are not from the solvent extraction (SX) process and would have to be addressed separately,
including getting prior DOE approval for the material to be disposed of in any SFC 11e.(2) disposal
cell. However, the Commission Paper should state specifically that the termination of the Sequoyah
license ultimately is based on DOE agreeing to take title to source material wastes and provide
perpetual care either as a LLW disposal cell under Section 151 b of the AEA or as an 11 e.(2) disposal
cell with LLW disposed of in it under UMTRCA.
The panel agrees with the points discussed above, but suggests that the information provided in the
Draft Commission Paper needs to be made clearer on the circumstances of DOE acceptance related
to each option.
Areas of Differing Views in the DPV and Draft Commission Paper
The fundamental area of disagreement between the Draft Commission Paper and the DPV is whether
the material at the SFC facility can be classified as 11 e.(2) byproduct material. The DPV addresses
three questions about this issue: 1) does the material fit the definition of 11 e. (2) byproduct material?
2) does the material fall within the intent of Congress when it enacted UMTRCA? and 3) are the
radiological characteristics of the material similar to typical 11 e.(2) byproduct material? This report
considers these questions relevant to the issue, and discusses each of them in the context of what
is discussed in the Draft Commission Paper and the merits of information provided by the DPV.
1. Definition of 11 e.(2) Byproduct Material
A key area of concern in the DPV by Fliegel and Lusher is the definition of byproduct material in
section 11e.(2) of the AEA as amended. They contend that the waste SFC is proposing to be treated
as 11 e.(2) byproduct material does not fall within previously accepted definitions (see Figure 1).
Therefore, they disagree with the staff preferred option in the draft Commission Paper to accept the
SFC proposal. They note that the 1993 EDO memorandum stated that, ''The uranium contaminated
decommissioning wastes at Sequoyah Fuels do not fit the definition of 11 e.(2) byproduct material and
thus fall outside the coverage of the Act."
The 11 e.(2) byproduct material definition in the statute is as follows: " ... the tailings orwaste produced
by the extraction or concentration of uranium or thorium from any ore processed primarily for its
source material content." Fliegel and Lusher agree that the material is "waste," but contend that in
order for it to be considered 11e.(2) byproduct material two issues need to be considered: 1) whether
the material was produced by the "extraction or concentration of uranium" and 2) whether the yellow
cake material that was processed at Sequoyah was an "ore." The panel agrees that these are the key
considerations in assessing this material against the 11 e.(2) definition.
4
Extraction/concentration: The licensee argues (and the staff agrees by its recommended option)
that the process of further refinement of the yellow cake is "concentration" of the uranium. They
further argue that because this chemical process is similar to what is done at a uranium mill, the SFC
waste meets this part of the definition. The DPV makes the following counter points:
The material that was processed was an impure grade of yellow cake that was being purified
in preparation for the process of converting it to UF6. It was not an ore or alternate feed
material being processed in a milling operation.
Extraction and concentration at a mill from ore or other source material is different from
converting yellow cake to a chemical form suitable for the conversion to UF6. The former was
done as an integral part of the mining and milling process prior to shipment to SFC, whereas
the latter was done as an integral part of the UF6 conversion process at SFC.
If the purification of yellow cake is considered part of the milling process for the purposes of
defining 11 e.(2) byproduct material, then any waste from any process involving the purification
and conversion of products containing uranium or thorium also could qualify. This would
expand the definition to include other U/Th processing or conversion facilities.
In 1970, many of the milling facilities only dried the yellow cake with low temperature dryers, resulting
in a product that would require additional processing to meet the chemistry requirements for the
conversion process selected by Sequoyah. As the Panel understands it, the conversion process
requires a specific chemical form of uranium that is not the product of
the milling facilities. Therefore, although concentration occurs, the goal at the front end of this
conversion facility is primarily achieving the specific chemical form needed to match the particular
requirements of the UF6 conversion process.
Ore: In the Draft Commission Paper, the staff indicates that yellow cake could be classified as an
"ore" in the context of the uranium processing that took place at the front-end of the Gore facility.
Although the staff notes in the discussion of options that this interpretation is at odds with previous
practice and regulatory guidance, it is arguing that, because neither "ore" nor "milling process" are
specifically defined in the legislation and regulations, the SFC proposal is not legally precluded. The
DPV makes the following points:
Historically, the NRC has defined "ore" as material (natural ores or alternate feed materials)
from which natural uranium and/or thorium is initially extracted or concentrated at a uranium
or thorium mining and/or milling operation. This definition has not been applied to the further
refinement of yellow cake at conversion facilities separate from a mill.
"Ore" is not defined in the AEA or NRC regulations. Staff proposed in 1992 to define "ore"
as a " ... natural or native material that may be mined and treated for the extraction of any
of its constituents or any other matter from which source material is extracted in a licensed
uranium or thorium mill." Subsequently, the Commission has used this definition to permit
alternate feed materials to be processed at "licensed uranium or thorium mills."
The yellow cake processed at SFC would not fit these definitions. If it became acceptable to
define it as "ore" or alternate feed material, then any process utilizing a purification step for
material containing uranium or thorium could be defined as such.
5
The Draft Commission Paper proposes that the front end of the Sequoyah facility can be considered
as a continuation of the milling started at a facility licensed as a mill (see Figure 1). Under this view,
the "ore" would be the original ore brought to the mill that supplied the yellow cake to the Sequoyah
facility. The DPV argues, that if this were the case, any process at any nuclear fuel cycle facility that
results in an increase in the concentration of uranium (or thorium) would have its wastes qualify as
11 e.(2) byproduct material, as the uranium or thorium would have started out as ore at some uranium
or thorium mill.
The Panel considers that the Draft Commission Paper has not fully addressed the historical
background associated with the NRC definition of "ore" for classifying wastes as 11 e.(2) byproduct
material.
2. Intent of UMTRCA
In further responding to the Draft Commission Paper recommendation that the Sequoyah wastes be
considered 11e.(2) material, the DPV discusses UMTRCA and its intended purpose with regard to
byproduct material regulation. The DPV points out that prior to the enactment of UMTRCA, uranium
mill tailings were not regulated under the AEA, because the tailings usually contained less than 0.05
percent uranium and thorium and thus were exempt, under 10 CFR 40.13(a), as unimportant
quantities of source material. Uranium mill tailings did contain sufficient quantities of radium, left from
the processing of the uranium ore, to present a potential radiological hazard. UMTRCA was enacted
to close a regulatory gap by creating the legislative framework to control the radiological hazard of
previously unregulated radioactive material, which it defined in adding Section 11e.(2) to the AEA.
The DPV authors note that, in contrast to uranium mill tailings, the wastes at the Sequoyah facility
were always under NRC regulatory authority as source material. Thus, UMTRCA does not provide
additional protection to the public with respect to the Sequoyah facility wastes nor to source material
wastes at other NRC regulated facilities. The DPV concludes that there is no evidence that Congress
sought to include such material, that was already under NRC regulatory jurisdiction, in the definition
in AEA Section 11 e.(2).
In 1993, the view of OGC was that, " ... hexafluoride conversion plants were never considered as
uranium mills and were not contemplated as such in the Uranium Mill Tailings Radiation Control Act
of 1978" (UMTRCA).
The Draft Commission Paper does not present a position on the intent of UMTRCA. The panel
believes that the intent of UMTRCA is an additional factor that should be included in the Paper for the
Commission's full consideration of this issue.
3. Radiological Characteristics of Sequoyah Wastes
The Draft Commission Paper does not address the waste characteristics at the Sequoyah facility.
The DPV raises this as an issue, and discusses the radiological characteristics of the wastes and how
they differ from the typical 11 e.(2) wastes at current Title I sites and the generic analysis in the Final
Generic Impact Statement on Uranium Milling, September 1980, NUREG-0706 (GElS). The DPV
uses the data in Sequoyah's submittal of January 5, 2001.
The issues raised in the DPV were as follows:
6
• The DPV concludes that the radiological characteristics of the Sequoyah wastes are
significantly different from current Title I wastes and the radiological impacts considered in the
GElS.
The radiological content of the Sequoyah wastes (in particular the sludge which was
discussed in the DPV) equate to 1.7% source material content for uranium only. This is
higher grade material than was processed to generate the original yellow cake that was sent
to Sequoyah.
The DPV points out that the mix of radionuclides in the Sequoyah wastes are significantly
different than those analyzed in the GElS or by EPA in issuing its uranium milling standards,
and that this difference would need to be addressed in any design of a decommissioning plan
for this site. Design issues could include groundwater protection, limiting water infiltration,
and the ingrowth of radium from the high thorium concentration of the wastes during the 1000
year design life of the facility. Radon emanation, which was the focus of UMTRCA, does not
appear to be the major radiological risk to be managed from these wastes.
Although the definition of 11 e.(2) does not consider waste characteristics, the panel believes that the
DPV issues on the waste differences and possible disposal design differences are important
considerations. The Final Commission Paper should acknowledge the waste differences and discuss
the impact on disposal design so that the Commission can fully consider the impacts of any decision
it makes.
Consequences of the Policy Decision
The DPV raises the issue that reclassifying the Sequoyah wastes as 11 e.(2) may have unanticipated
consequences, both with respect to the Sequoyah facility and to other facilities subject to NRC
regulation. It further points out 1) that there might be other facilities that could, under the
recommended revised interpretation, reclassify some wastes as 11e.(2) byproduct material, and 2)
that the proposed reclassification might have the effect of bringing some wastes that have not been
regulated by NRC, such as from side stream recovery operations at phosphate facilities, under NRC
authority. These possibilities are not discussed in the Draft Commission Paper.
The Panel agrees with the DPV that the proposed Sequoyah proposal and staff recommendation
could leave open the possibility for other facilities in the fuel cycle to make similar arguments for
11e.(2) waste. This issue needs to be considered more fully in the Final Commission Paper.
Other Points of the DPV
The DPV also considers the question of whether the Commission Paper recommendation provides
an easier path to remediating the Sequoyah site, and discusses the two options of the Draft
Commission Paper in light of the performance goals identified in the NRC Strategic Plan. Although
the Panel comments on the path to remediation in its recommendations, it does not consider these
discussions as primary determining factors in answering the question of where to draw the line in
defining 11 e.(2) byproduct material, and as such has not addressed these discussions specifically.
7
Recommendations
The Panel has evaluated the DPV, the Draft Commission paper and attachments, and a variety of
related background documents to determine if the issues raised in the DPV warrant further
consideration and inclusion in the Final Commission Paper. The recommendations of the panel are
intended to improve the quality of the information provided to the Commission so that it has a
sufficient basis to make a decision on the staff position for responding to the SFC proposal.
As discussed above, the DPV presented by Fliegel and Lusher raises several important
considerations that were not included in the Draft Commission Paper discussion. These
considerations relate to the definition of 11 e.(2) byproduct material, the intent of UMTRCA, the
radiological characteristics of the waste, and the consequences of implementing the recommended
option of the Draft Commission Paper. The DPV primary concern is that the staff recommended
acceptance of the SFC proposal ignores the clear differences in the operations and functions of and
will blur long-held regulatory distinctions between mining and milling operations and other uranium
or thorium processing facilities, such as UF6 conversion facilities (see Figure 1). The DPV argues
that staff acceptance of the re-definition of 11 e.(2) byproduct material in the SFC proposal will lead
to a situation where any facility working with uranium and/or thorium could fall under the regulatory
framework specifically developed for mining and milling operations.
It does not appear that the Draft Commission Paper has made a complete case for recommending
Option 2, i.e., acceptance of the SFC proposal. In particular, the paper is lacking in the following
areas:
The Draft Commission Paper does not discuss the bases for the general change in OGC's
interpretation of the definition of 11 e.(2), or the particular change in OGC's position on the
applicability of UMTRCA to the SFC waste.
Although the Commission Paper acknowledges the need for DOE approval, it should state
specifically thatthe termination of the Sequoyah license ultimately is based on DOE agreeing
to take title to source material wastes and provide perpetual care either as a LLW disposal
cell under Section 151 b of the AEA or as an 11 e.(2) disposal cell with LLW disposed of in it
under UMTRCA.
In discussing extraction/concentration, the Draft Commission Paper does not recognize that
although concentration occurs, the goal at the front end of this conversion facility is primarily
aimed at achieving the specific chemical form needed to match the particular requirements
of the UF6 conversion process.
The Draft Commission Paper has not fully addressed the historical background associated
with the NRC definition of "ore" for classifying wastes as 11 e.(2) byproduct material.
The Draft Commission Paper does not present a position on the intent of UMTRCA, and the
panel believes that the intent of UMTRCA is an additional factor that should be included in
the Paper for the Commission's full consideration of this issue.
The Draft Commission Paper does not address the waste characteristics at the Sequoyah
facility, nor any significance of its differences from typical uranium milling wastes.
8
The Draft Commission Paper does not address the possible unintended consequences of
its recommendation with regard to other facilities in the fuel cycle making similar arguments
for 11e.(2) waste.
It appears that the impetus for the staff recommendation to define SFC wastes as 11 e.(2) byproduct
material primarily is based on concerns about providing for long-term institutional control of the site.
In its proposal, SFC makes a number of arguments dealing with the staff experience with
decommissioning under Appendix A of 10 CFR part 40 in contrast to limited experience with
decommissioning under the License Termination Rule (L TR) in Subpart E of 10CFR Part 20.
Further, the Draft Commission Paper recommends that the Sequoyah facility waste be classified as
11e.(2) byproduct material, because it would result in a well tested and defined process for
decommissioning the site. The panel believes that it may be more appropriate for the staff to seek
ways to ensure the L TR decommissioning process works effectively, particularly with respect to
provisions for long-term institutional care, rather than addressing ways to fit the SFC site into the mill
tailings program. Acceptance of the SFC proposal may result in the NRC having to deal with long-
term control issues at other decommissioning sites by exception and on a case-by-case basis, rather
than through establishment of a robust L TR process.
The Commission will need a clear presentation of all the issues discussed above to make a well-
informed policy decision. The Panel recommends that the Draft Commission Paper be revised to
address the areas itemized above. With this additional information included in the Commission
Paper, the Panel's opinion (given the information available to it and the regulatory framework as it
exists) is that the case for Option 2 as it stands is not a strong one, and that the staff may wish to
consider other options.
9
Enriched U02 t Fabrication
~tIJD
Enrichment Light Water
Power Reactors
n
Reprocessing Federal
Waste
Repository
Figure 1. Graphical representation of uranium fuel cycle taken from NRC's website. The DPV argues
that the definition of 11 e(2) byproduct material in the AEA is applied to wastes from mining and
milling operations, and that the regulatory framework has been developed to deal specifically with
those wastes and was not intended to be applied to UF6 conversion facilities.
10
November 9, 2001
MEMORANDUM TO: Melvyn Leach, Chief
FROM:
SUBJECT;
Fuel Cycle Licensing Branch
Division of Fuel Cycle Safety & Safeguards, NMSS
Myron Fliegel IRAJ
Senior Project Manager
Fuel Cycle licensing Branch
Division of Fuel Cycle Safety & Safeguards, NMSS
John Lusher IRAJ
Health Physicist
Fuel Cycle Licensing Branch
Division of Fuel Cycle Safety & Safeguards, NMSS
DIFFERING PROFESSIONAL VIEW ON COMMISSION PAPER TITLED:
APPLICABILITY OF SECTION 11e.(2) OF THE ATOMIC ENERGY ACT
TO MATERIAL AT THE SEQUOYAH FUELS CORPORATION URANIUM
CONVERSION FACILITY"
Please find attached our Differing Professional View (DPV) on the subject Commission Paper. We
request that the DPV be attached to the Commission Paper.
Attachment: DPV
November 9, 2001
DIFFERING PROFESSIONAL VIEW ON COMMISSION PAPER TITLED:
"APPLICABILITY OF SECTION 11 e.(2) OF THE ATOMIC ENERGY
ACT TO MATERIAL AT THE SEQUOYAH FUELS CORPORATION
URANIUM CONVERSION FACILITY"
Myron Fliegel
Senior Project Manager
Fuel Cycle Licensing Branch, FCSS, NMSS
John Lusher
Health Physicist
Fuel Cycle Licensing Branch, FCSS, NMSS
We have reviewed the Commission Paper that this Differing Professional View is attached to and
disagree with its recommendation. Furthermore, we believe that the Commission Paper does not
adequately discuss the complex issues involved in reaching its recommendation. We recognize
that the safety significance of the decision on whether to treat the Sequoyah facility wastes as
byproduct material as defined in sec. 11 e.(2) of Atomic Energy Act of 1954, as amended (AEA) or
as source material waste, are minimal. The significance of the decision relates more to whether
we adhere to legislation and regulations and follow them appropriately, even if that sometimes
creates problems in the short term. We believe that arbitrarily reinterpreting fundamental
definitions will, in the long term, create more problems.
Can the material reasonably be considered to be 11 e.(2) byproduct material?
The first issue that must be addressed is whether the material at the Sequoyah Fuels Corporation
(SFC) facility can reasonably be considered to be 11 e.(2) byproduct material. We will address
three aspects of this issue: 1) how well does the material fit the definition of 11 e.(2) byproduct
material, 2) how does it comport with the intent of Congress when it enacted the Uranium Mill
Tailings Radiation Control Act of 1978, as amended (UMTRCA), and 3) how do the radiological
characteristics of the material compare with typical 11 e.(2) byproduct material.
Definition of 11 e.(2) byproduct material
The definition of byproduct material in section 11 e.(2) of the AEA is "the tailings or waste
produced by the extraction or concentration of uranium or thorium from any ore processed
primarily for its source material content." There is no argument that the material in question at
Seguoyah is waste. However, two questions that need to be considered are whether the waste
was produced by the "extraction or concentration" of uranium and whether the material that was
processed at Sequoyah was an "ore."
The material that was processed at Sequoyah was an impure form of yellow cake, with the
product of the processing being a purer form of yellow cake. The licensee argues that the
process is "concentration" of the yellow cake (and thus of the uranium), is similar to what is done
at a uranium mill, and thus meets that aspect of the definition in AEA sec 11 e.(2). We would argue
that one can differentiate between "concentration" and "purification." The concentration of yellow
cake at a uranium mill is an integral component of a continuous process that starts with uranium
ore and ends with uranium product. That product, the yellow cake, is the source material that the
ore was processed for. The purpose of a uranium mill is to extract and concentrate uranium found
in ore and produce a useful uranium product. On the other hand, one can contemplate examples
in which material containing a significant percentage of uranium is purified or converted into
another material (e.g., another chemical form) with a higher percentage of uranium. Are wastes
from such a process to be considered 11 e.(2) byproduct material because the uranium has been
slightly "concentrated?" The licensee's argument, that the purification of yellow cake at Sequoyah
is the "concentration" contemplated in the definition of 11 e.(2) byproduct material, is not obvious
and, if accepted, could be used at other fuel cycle facilities that concentrate uranium.
The licensee also argues that the impure yellow cake processed at the Sequoyah facility can be
considered to be "ore" in the context of the definition in AEA section 11 e.(2), but that argument
does not withstand scrutiny. While neither the AEA nor NRC regulations define the term "ore,"
and it thus could be broadly construed, its meaning is not unlimited in scope and should be
properly constrained. "Ore," in the context of the AEA, has been used to refer to material which is
the source of the uranium and/or thorium that is, or can be, used to produce special nuclear
material. The historical view has been that its meaning should be confined to material from which
natural uranium and/or thorium is initially extracted or concentrated, at a uranium or thorium mill
during the milling process. Under this view, "ore" would not include uranium or "yellow cake" that
has already been extracted from the "ore" even if it was further refined (i.e., concentrated and
purified). It follows under this view that the term "ore" should be limited to natural ores and other
materials, such as alternate feed material, that are traditionally used in the milling process to
obtain uranium and thorium for eventual production of special nuclear material.
Furthermore, in a Federal Register notice on May 13, 1992 (57 FR 20525) staff proposed a
definition of the term "ore" to be applied in the definition in AEA section 11 e.(2). The definition
proposed was: "ore is a natural or native matter that may be mined and treated for the extraction
of any of its constituents or any other matter from which source material is extracted in a licensed
uranium or thorium milL" Although the definition has not been codified in NRC regulations,1 it has
been reviewed and approved by the Commission on several occasions since then and has
remained unchanged. The intent of the definition was to allow tailings and wastes from
processing of alternate feed material at a licensed mill to meet the 11 e.(2) byproduct material
definition so that it could be disposed of in the mill's tailings pile. However, the Commission
purposely put constraints in the definition, primarily by limiting it to alternate feed material
processed in a "licensed uranium or thorium mill," to limit its use. The yellow cake processed at
the Sequoyah facility would not meet the ore definition, as the facility is not a licensed uranium
mill.
The Commission Paper also proposes a different way to resolve the "ore" problem. It proposes to
consider the Sequoyah facility to be a continuation of the milling started at a facility licensed as a
1 The Commission directed the staff to put the definition in NRC regulations. On several
occasions the staff initiated efforts to do that, but for various reasons, never completed the effort.
-3-
mill. Under this view, the ore would be the original ore brought to the mill that supplied the yellow
cake to the Sequoyah facility. The difficulty with this view is similar to that identified above in the
discussion on concentration. That is, any process at any nuclear fuel cycle facility that results in
an increase in the concentration of uranium (or thorium) would have its wastes qualify as 11e.(2)
byproduct material, as the uranium would have started out as ore at some uranium mill.
In sum, a plain reading of the definition in sec. 11 e.(2) of the AEA would lead one to conclude that
the wastes at the Sequoyah facility do not meet that definition. Recognizing that the agency has
some latitude in interpreting the AEA and its regulations, it may be helpful to consider the intent of
Congress in creating the definition in sec.11 e.(2) of the AEA.
Intent of UMTRCA
The AEA was amended by UMTRCA to include a second definition of byproduct material [sec.
11e.(2)]. The reason for this addition of radioactive material brought under NRC regulatory
authority is discussed Sec. 2.(a), which states "The Congress finds that uranium mill tailings at
active and inactive mill operations may pose a potential and significant radiation health hazard to
the public, and that the protection of the public health ... require ... the stabilization, disposal" and
control...of such tailings in order to prevent or minimize radon diffusion into the environment..."
Prior to the enactment of UMTRCA, uranium mill tailings were not regulated under the AEA
because the tailings usually contained less than 0.05 percent uranium and thorium and thus were
exempt, under 10 CFR 40.13(a), as unimportant quantities of source material. Uranium mill
tailings did contain sufficient quantities of radium, left from the processing of the uranium ore, to
present a potential radiological hazard, including that of radon release, if they were not properly
stabilized and controlled. UMTRCA was enacted to close a regulatory gap by creating the
legislative framework to control the radiological hazard of previously unregulated radioactive
material.
In contrast to uranium mill tailings, the wastes at the Sequoyah facility were always under NRC
regulatory authority as source material. UMTRCA did not provide additional protection to the
public with respect to the Sequoyah facility wastes nor to source material wastes at other NRC
regulated facilities . There is no evidence that Congress sought to include such material, that was
already under NRC regulatory jurisdiction, in the definition in AEA sec. 11 e.(2).
Radiological characteristics of Seguoyah waste
It is interesting to consider the radiological characteristics of the Sequoyah facility wastes and
compare them to typical uranium mill tailings. In its January 2001 request, SFC included a table
(Table 2, p. 46) listing concentrations of various constituents in the Sequoyah waste and in mill
tailings at inactive (i.e., UMTRCA Title I) mill sites and in soils. The table below contains
radiological information for the wastes at the Sequoyah facility and for Title I tailings, extracted
from the SFC table, and similar information for a "model mill" described in NRC's Final Generic
Environmental Impact Statement on Uranium Milling, NUREG-0706, 1980.
-4-
R d' I . I a 10 oglca cons I uen concen ra Ions In n t t" . SFC was es an ml alln d U '11 t T s
Constituent Sequoyah Title I NRC "model
(pCi/g) Raffinate Siudgea mill tailingsb mill" tailingsc
Uranium 2500 -19,200 38 -380 39
avg -8990
Th-230 2930 -48,200 340 -1000 280
avg -23,030
Ra-226 <14 -190 340 -1000 280
avg -118
a SFC January 5, 2001 submittal; p.46.
b FEIS for Remedial Action Standards for Inactive Uranium Processing Sites (40CFR192), EPA, 1982.
c Final Generic EIS on Uranium Milling, NUREG-0706, 1980.
It is evident from the table that the Sequoyah facility wastes are very different, radiologically, from
uranium mill tailings. Uranium and thorium concentrations are two orders of magnitude higher for
the Sequoyah wastes, and present an increased radiological risk, while radium concentrations are
less than half that typical of uranium mill tailings. For the Sequoyah facility wastes, the primary
radiological concern would be the uranium and thorium content, rather than radon diffusion into
the environment, as stated in sec. 2.(a) of UMTRCA.
In summary, the wastes at the Sequoyah facility 1) do not appear to meet a plain reading of the
definition found in sec. 11 e.(2) of the AEA, 2) do not appear to be the type of material Congress
intended to include in the definition, and 3) are not similar to typical uranium mill tailings in
radiological characteristics. At best, the basis for considering the material to be 11 e.(2) byproduct
material is weak. In our opinion the basis is flawed and will not withstand scrutiny by an impartial
judge. However, even if we assume that there is sufficient basis to consider the material to be
11 e.(2) byproduct material, there are several other issues to consider
Does this provide an easier path to remediating the site?
The Commission Paper recommends that the Sequoyah facility waste be classified as 11 e.(2)
byproduct material because it would "result in a well tested and defined process for
decommissioning the site ... " However, we see potential pitfalls in this approach that could result
in further delays in decommissioning the site, including the possibility of the 11 e.(2) classification
being overturned.
As discussed above, the basis for classifying the Sequoyah facility wastes as 11 e.(2) byproduct
material is, at best, weak. If the Commission makes the decision that the wastes are 11 e.(2)
byproduct material, the issue is closed within NRC and to stakeholders -unless it is challenged in
Federal Appeals Court. However, if it is challenged in Federal Appeals Court, the weak basis for
classifying the Seqouyah facility wastes as 11e.(2) byproduct material will be examined in detail by
an impartial judiciary. The issues and arguments raised in the first section of this paper, along
with perhaps other issues identified by the parties, will be argued, reviewed, and debated. This
process can take a considerable amount of time. If, at the end of the process, it is decided that
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the Sequoyah facility wastes are not 11 e.(2) byproduct material, the decommissioning process will
have to start over again.
Additionally, as the Commission Paper points out, even accepting the licensee's argument
concerning the classification of the wastes at the Sequoyah facility, a significant amount of waste
would still not be classified as 11e.(2) byproduct material. In its January 5,2001 submittal, SFC
states that almost a quarter of the waste (23 percent, which amounts to almost 2 million cubic feet)
could not be classified as 11 e.(2) byproduct material. This material would have to be disposed of,
either with the 11e.(2) byproduct material as non-11e.(2) byproduct material, or in a separate cell.
For the material to be disposed of as non-11e.(2) byproduct material, the recently updated "Interim
Guidance on Disposal of Non-Atomic Energy Act of 1954, Section 11 e.(2) Byproduct Material in
Tailings Impoundments" would be followed. The Commission Paper states that approval from the
State of Oklahoma, the Central Compact, and the Department of Energy (DOE) would be needed,
in addition to NRC approval. It is not clear that such approvals would be readily obtained.
Additionally, the argument in the Commission Paper that the recommended approach would
"result in a well tested and defined process for decommissioning the site ... " is predicated on the
assumption that SFC receives the approvals for the non-11e.(2) component of the waste.
However, the non-11e.(2) process is not well tested or defined; indeed the industry has
complained on several occasions about the difficulty of process. Thus, even if NRC agrees to
classifying some of the Sequoyah facility wastes as 11 e.(2) byproduct material, decommissioning
the site may be frustrated by the inability to get the necessary approvals for the non-11 e.(2)
component of the waste.
The other option identified in the Commission Paper for the non-11 e.(2) component of the waste,
is to dispose of it in a separate cell at the site, under the License Termination Rule (L TR).
However, this would bring us back to the problem that classifying some of the waste as 11 e.(2)
byproduct material was designed to resolve; i.e., obtaining an institutional control custodian.
In summary, even if some of the waste material at the Sequoyah facility could be reasonably
considered to be 11 e.(2) byproduct material, it is problematic whether reclassifying it as such
would result in a more expedient path to site decommissioning.
Unanticipated consequences of "novel" interpretation of 11e.(2)
In addition to the concerns identified above, another potential problem is that reclassifying the
Sequoyah wastes as 11 e.(2) may have unanticipated consequences, both with respect to the
Sequoyah facility and to other facilities subject to NRC regulation. An example of unanticipated
consequences resulting from reinterpretations of what is, and what is not, 11 e.(2) byproduct
material may be instructive.
Recently, the staff revised its interpretation of 11 e.(2) byproduct material. It concluded that
material that met the definition in sec. 11 e.(2) of the AEA (i.e., material that was tailings or waste
produced by the extraction or concentration of uranium or thorium from any ore processed
primarily for its source material content) was not 11 e.(2) byproduct material if it was not under
NRC (or Agreement State) license at the time of, or after, the enactment of UMTRCA. The intent
of the revised interpretation was to preclude NRC from having to regulate the U.S. Army Corps of
Engineers (ACE) as it worked at remediating sites under the Formerly Utilized Sites Remedial
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Action Program (FUSRAP). Much of the radioactive material at FUSRAP sites met the definition in
AEA sec. 11e.(2). Before being transferred to ACE, remediation activities at FUSRAP sites had
previously been performed by DOE, which is not a "person" subject to NRC regulation under the
AEA and thus neither the material nor the DOE activities were licensed by NRC at most of the
FUSRAP sites. The reinterpretation of 11e.(2) byproduct material solved the immediate problem
of regulating ACE activities at FUSRAP sites. However, it was not recognized, until late in the
process, that material from FUSRAP sites had been sent by DOE to an NRC licensed site for
disposal as 11e.(2) byproduct material. Under the revised interpretation, that site now has a
mixture of 11e.(2) byproduct material and similar radioactive material not regulated under the AEA,
along with material that may be regulated under the Resource Conservation and Recovery Act, in
its 11e.(2) byproduct material cell. The long-term ramifications of that situation have not yet been
resolved.
The change in interpretation of AEA sec. 11 e.(2) recommended in the Commission Paper is a
significant departure from past practice by the agency. As such, it may affect other licensees or
facilities in ways not currently anticipated. For example, are there other facilities that could, under
the recommended revised interpretation, reclassify some wastes as 11e.(2) byproduct material?
Could the proposed reclassification have the effect of bringing some wastes that have not been
regulated by NRC, such as from side stream recovery operations at phosphate facilities, under
NRC authority? Any time we reinterpret legislation and regulations and reverse years of agency
practice, we run the risk of unanticipated consequences.
The problem is with decommissioning process
The underlying reason for the proposal to reclassify some Sequoyah facility wastes as 11 e.(2)
byproduct material is that the decommissioning process applicable to the facility has
implementation problems. It appears to us that the solution should be to remedy those problems,
rather than try to force the Sequoyah facility wastes into the mill tailings program.
As we understand it, the major problem confronting SFC under the decommissioning regulations in
10 CFR 20.1403 is the need to identify a long-term custodian. DOE apparently is reluctant to
accept the role as custodian for the site, even though it could do so under current legislation.
Perhaps a reinterpretation of the requirements in §20.1403 rather than the definition in AEA sec.
11 e.(2) may be possible. Perhaps a request from the highest levels in NRC to DOE would help.
Perhaps a request to Congress, to enact legislation requiring DOE to take such sites, is needed.
The solution to problems related to implementing the requirements in §20.1403 should begin
there, rather than in reinterpreting the definition in AEA sec. 11e.(2), with aU the potential problems
that could create.
Performance goals
We have also analyzed the two options presented in the Commission Paper (continue
decommissioning the site under the requirements in the L TR, and reclassify some of the wastes
as 11 e.(2) byproduct material) with respect to the performance goals identified in the NRC
Strategic Plan.
Maintain safety, protection of the environment, ·and the common defense and security
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Decommissioning the Sequoyah site under the requirements in either 10 CFR 20.1403 (option 1)
or 10 CFR Part 40, Appendix A (option 2) would meet this goal. A major argument to reclassify
some of the wastes as 11 e.(2) byproduct material is that it would be more likely to lead to actual
site decommissioning than it would be if the current process were continued. However, as shown
above, that argument is highly problematical. We conclude that neither option is more likely to
lead to achievement of this goal.
Increase public confidence
To reach this goal, the NRC must be viewed as an independent, open, efficient, clear and reliable
regulator. It can be argued that reclassifying the Sequoyah wastes as 11 e.(2) byproduct material,
primarily because the licensee sees that as a more expedient path to decommissioning, will not
increase public confidence. As discussed in the Commission Paper, in 1993 SFC made an
argument that some of the wastes could be considered to be 11 e.(2) byproduct material. In a
July 6, 1993 Memorandum to the Commission, the Executive Director of Operations wrote "The
uranium contaminated decommissioning wastes at Sequoyah Fuels do not fit the definition of
11e.(2) byproduct materiaL .. " The Commission Paper does not present a strong argument to
revise that conclusion, other than the perception that it may be more expedient. In 1997, NRC
promulgated the L TR to address decommissioning at sites like Sequoyah. However, because of
problems with the L TR, SFC is once again asking NRC to reclassify some of the wastes as
11e.(2) byproduct material. Agreeing to the reclassification will not make NRC look independent,
efficient, or reliable. We conclude that option 1 will enhance achievement of this goal, while
option 2 will be detrimental to this goal.
Make the NRC activities and decisions more effective. efficient. and realistic
The Strategic Plan states "In working toward this performance goal, the NRC will apply its
Principles of Good Regulation , which include efficiency, clarity, and reliability." The primary
justification for option 2 is that the current regulatory framework for decommissioning the
Sequoyah facility, §20.1403, is proving difficult to implement. It appears to us that improving the
regulatory framework of §20.1403 would be the appropriate way of achieving this goal.
Reclassifying material because of implementation problems with the regulatory framework under
which it has always been regulated, does not appear to us to be a sign of reliable regulation. We
conclude that option 2 will be detrimental to this goal.
Reduce unnecessarv regulatorv burden on stakeholders
Decommissioning the Sequoyah site under the requirements in either 10 CFR 20.1403 or 10 CFR
Part 40, Appendix A imposes a regulatory burden on SFC. The argument for option 2 could be
construed as an argument that doing so would reduce the regulatory burden on SFC. However,
as shown above, that argument is highly problematical. Furthermore, another stakeholder, the
State of Oklahoma, has initiated a hearing on SFC's proposed decommissioning plan. The
Commission Paper states that if option 2 is approved, the current decommissioning plan would
require significant changes. If Oklahoma (or another stakeholder) identifies concerns with the
revised decommissioning plan, it would have to initiate another hearing to address those
concerns. The regulatory burden on stakeholders other than SFC could therefore be increased
under option 2. We conclude that option 2 could be detrimental to this goal.
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Conclusion
For all the reasons identified and discussed above, we conclude that the wastes at the Sequoyah
facility should not be reclassified as 11e.(2) byproduct material, i.e., that option 1 should be
chosen.
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