DRC-2013-004482 - 0901a06880416988

Uranium Watch
76 South Main Street, # 7 | P.O. Box 344
Moab, Utah 84532
435-259-9450
via electronic mail
October 21, 2013 DRC-2013-004482
Rusty Lundberg
Director
Division of Radiation Control
P.O. Box 144850
Salt Lake City, Utah 84114-4850
[e-mail]
RE: Comments on Energy Fuels Resources Dawn Mining Amendment Request
Dear Mr. Lundberg:
Attached Comments on the Amendment to 1 le.(2) Byproduct License UT1900479,
Energy Fuels Resources (USA) Inc. White Mesa Mill, San Juan County, Utah. These
comments are submitted on behalf of Uranium Watch, Living Rivers, the Glen
Canyon Group of the Sierra Club, and the Information Network for Responsible
Mining.
Thank you for providing this opportunity to comment.
Sincerely,
Sarah Fields
Program Director
Uranium Watch
and
Jennifer Thurston
INFORM
PO BOX 27
Norwood, CO 81423
Nuclear Issues Chair
Glen Canyon Group
Sierra Club
P.O. Box 622
Moab, Utah 84532
John Weisheit
Conservation Director
Living Rivers
P.O. Box 466
Moab, Utah 84532
COMMENTS
Amendment to lle.(2) Byproduct License UT1900479
Energy Fuels Resources (USA) Inc.
White Mesa Mill
San Juan County, Utah
Below are Comments on the proposed Licensing Action by the Director of the
Utah Division of Radiation Control (DRC) to amend the Energy Fuels Resources (USA)
Inc. (EFRI) 1 le.(2) Byproduct License (RML UT1900479). EFRI proposes to amend the
License for the White Mesa Uranium Mill in San Juan County, Utah, to authorize the
receipt, storage, and processing of uranium-bearing materials (Uranium Material) from
the Dawn Mining Company's Midnite Mine Superfund facility in Wellpinit, Washington.
EFRI application documents is dated April 27, 2011, and supplemented by submittals of
December 5, 2012, June 14, 2013, and August 7, 2013 (Amendment Request).
The DRC authorization would also include the disposal and perpetual storage of
the waste from the processing of these materials. These comments are submitted on
behalf of Uranium Watch, Living Rivers, Glen Canyon Group of the Sierra Club, and the
Information for Responsible Mining (INFORM).
GENERAL COMMENTS
1.1. The DRC documents associated with this license amendment should be in a
PDF format that allows for the selecting and copying of any text in the document, in
order to facilitate the inclusion of quotes from these documents in any comments
provided to the DRC. For example, I am unable to select and copy the text from the
DRC's Safety Evaluation Report. The selection tool on my computer selects large
sections of text, rather than the text I want to copy.
1.2. The documents associated with EFRI applications should also be in a PDF
format that all allows for the copying of any text in the document, in order to facilitate the
inclusion of quotes from these documents in any comments provided to the DRC.
1.3. The Amendment Request submitted by the EFRI contains numerous citations
or references to documents that are not readily publicly available. These documents
should all be readily available for public review.
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
2
AMENDMENT REQUEST
2.1. In the April 27, 2011, Amendment Request (page 8), EFRI claims that the
Uranium Material is exempt from the Recourse Conservation and Recovery Act (RCRA).
EFRI claims that "any alternate materials that contain greater than .05% source material
are considered source material under the definition of source material in 10 CFR 40.4 and
hence exempt from the requirements of RCRA under 40 CFR. 261.4(a)(4)."
According to the Nuclear Regulatory Commission's (NRC's) redefinition, the
term "ore" means "ore" or "any other matter from which source material (i.e., uranium
and/or thorium) is extracted in a licensed uranium or thorium mill." 1 Therefore, for an
alternate feed material like the Uranium Material to become "ore" it must be processed in
a licensed uranium or thorium mill." Before the material is processed, e.g., when it is
sitting in drums or on an "ore pad" at the Mill, it does not meet the Interim Guidance's
redefinition of "ore," because it has not been processed at a licensed mill. It only
becomes "ore" retroactively, after it has been processed in a licensed uranium or thorium
mill. There is no claim in the Interim Guidance that alternate feed is "ore" before it is
processed, or waiting to be processed. Based on the redefinition of "ore" there appears to
be no specific point in time and space when the Uranium Material is actually "ore," due
to this retroactive nature of the definition. The absurdity of this is apparent.
The Interim Guidance's redefinition of the term "ore" only applies to the issue of
the whether the waste from the processing of that material can be defined as lle.(2)
byproduct material.2 The NRC Interim Guidance does not state or claim that the
Guidance's definition of "ore" in any manner applies to or in any manner alters the
statutory or regulatory definition of "source material" (42 U.S.C. §2014(z)).3 The NRC is
not legally authorized to amend the Atomic Energy Act (AEA) definitions via a policy
guidance.
Therefore, alternate feed material that contains uranium and/or thorium (in any
amount) contains "source material," and meets the first definition of "source material."
The uranium and/or thorium content, not the alternate feed, is "source material."
Material that contains "source material" above .05% uranium and/or thorium and a listed
or characteristic hazardous waste is called "mixed-waste." There is no statutory or
1 U. S. Nuclear Regulatory Commission, Office of Nuclear Material and Safety and Safeguards,
NRC Regulatory Issue Summary 2000-23, Recent Changes to Uranium Recovery Policy,
Washington, D.C., November 30, 2000.
2 42 U.S.C. §2014 (e)(2): "The term "byproduct material" means—
***
(2) the tailings or wastes produced by the extraction or concentration of uranium or thorium from
any ore processed primarily for its source material content."
3 42 U.S.C. §2014(z): "The term "source material" means (1) uranium, thorium, or any other
material which is determined by the Commission pursuant to the provisions of section 2091 of
this title to be source material; or (2) ores containing one or more of the foregoing materials, in
such concentration as the Commission may by regulation determine from time to time."
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
3
regulatory basis for determining that the Uranium Material ever meets the second
definition of "source material" as an "ore."
2.2. The June 14, 2013, EFRI Response to June 22 and June 23, 2013, DRC
Request for Information (page 2) states: "The storage and processing of the Uranium
Material will not introduce new constituents or new constituent forms (dissolved,
particulate or gaseous) or create significantly new human or environmental exposure risks
that have not already been addressed by previous submittals and approvals by appropriate
authorities (US Nuclear Regulatory Commission ("NRC") or DRC)."
EFRI has not identified the environmental exposure risks that have been
addressed by previous submittals and approvals by the NRC or the DRC.
The 1979 NRC Final Environmental Statement (ES) Related to Operation of
White Mesa Uranium Project only contemplated the environmental effects of the White
Mesa mill receiving and processing uranium or uranium/vanadium "ores" from the
Colorado Plateau region. New circumstances are associated with the White Mesa Mill
receiving, stockpiling, and processing feed materials that are not ores and that are not
from the Colorado Plateau, and disposing of those non-ore materials after processing.
The 1979 ES and Environmental Assessments (EAs) that supplemented the 1979
ES did not address the environmental effects from the processing of feed material
containing source material thorium and the disposal of source material thorium in the
tailings impoundments without the recovery of any source material thorium-232 and
progeny.
Most of the requests for license amendments to authorize the the processing of
alternate feed at the White Mesa Mill were not the subject of an environmental analysis,
pursuant the National Environmental Policy Act (NEPA) and the NRC implementing
regulations at 10 C.F.R. Part 51. Therefore, thousands of tons of materials (including
toxic materials not found in Colorado Plateau ores and asphalt, concrete, and other
rubble) were processed and disposed of at the mill without an EA and Finding of No
Significant Impact (FONSI).
The NRC produced brief Technical Evaluation Reports (TERs), but in no way
were these documents an a assessment of the environmental impacts, including
cumulative impacts, from the receipt, processing, and disposal of alternate feed.
Further, the DRC has not reviewed all of the TERs and Amendment Requests
associated with the License Conditions authorizing the receipt and processing of the
various alternate feeds. The Amendment Requests are part of the White Mesa Mill
License, yet, they have not been made readily available to the public and some of them
are not even readily available to the DRC staff.
SAFETY EVALUATION REPORT
3. General Comments
3.1. The Safety Evaluation Report (SER) for the Amendment Request fails to
identify all of the documents included in the Amendment Request.
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
4
3.2. The DRC has relied on documents related to the licensing and operation of
the White Mesa Mill that are not readily publicly available in its review and evaluation of
the Amendment Request. Some of these records are referenced in the Mill's Radioactive
Materials License (RML) UT 1900479, so they are part of the License.
The Mill's License Conditions (LCs) include a number of LCs for the approval of
the receipt of alternate feed from various sources. These LCs reference the specific
licensee applications, yet none of these applications are posted on the DRC website.
Further, when I requested some of the applications associated with feed material that was
still being received at the White Mesa Mill (from the Cameco and Honeywell facilities), I
was initially told that the DRC was unable to locate those records. The requested records
were actually in storage. I have located some of the requested records when I reviewed
documents at the DRC office on October 8, but I have yet to receive them.
Additionally, during the public hearing of October 9, 2013, at the Department of
Environmental Quality office in Salt Lake City, the DRC staff stated that they reviewed
some, but not all of the records associated with the NRC's's approval and technical
review of previous alternate feed license amendment requests and drew conclusions from
those records. Again, those documents were not identified in the SER, nor are they
readily available on the DRC website.
In sum, the DRC based its review of the Amendment Request, the SER, and
proposed licensing action on documents that the DRC failed to identify and failed to
make readily available to the public.
3.3. The DRC failed to characterize the radioactive content of the tailings, or
wastes, from the processing of the Uranium Material.
4. Previous Alternate Feed Proposals and Alternate Feed Assessment Process
4.1. In the discussion of Previous Alternate Feed Proposals and Alternate Feed
Assessment Process (SER, pages 2 to 3) the SER only references one previous alternate
feed proposal, the one approved by the DRC for the processing of waste from the cleanup
of the Fansteel Metals Resources, Inc.'s facility in Oklahoma. The SER should have
included a description and status of all of the previous alternate feed proposals that are
listed in the License.
4.2. The SER (page 3) states: "The Uranium Material is classified as lie.(2)
byproduct material." This statement is incorrect, and any conclusions derived from that
statement are also incorrect. The SER and the Amendment Request already stated that
the material contains "source material," and, since that material has never been processed
for its source material content in a licensed uranium mill, it is not lie.(2) byproduct
material.
4.3. The discussion of the Alternate Feed Assessment Process is found the
Section regarding the Alternate Fed Assessment Process, pages 6 to 23, below.
5. Radiological Impacts
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
5
5.1. Table 1 (page 8) provides data on the minimum and maximum range of
radionuclide concentrations in the Uranium Material. The data for the maximum amount
of thorium-228 is incorrect. The amount of thorium-228 does not correlate with the ratio
of thorium-228 to thorium-232 for the minimum concentrations. The maximum amount
of thorium-228 should be much higher, so that the ratio of the maximum levels of
thorium-228 to thorium-232 is similar to the ratio of the minimum levels.
5.2. Table 2 (page 9) should include the radium isotopes that are decay products
of thorium-232 and list them separately, before combining radium as "Total Radium."
5.3. According to the Amendment Request, the uranium content of the Uranium
Material is estimated to be 1.4%, and the thorium content is .005 %.4 Therefore, the ratio
of uranium to thorium-232 is approximately 1:280. However, when considering only the
radium content from uranium and total thorium the ratio of radium 224 and 228 (thorium
progeny) to radium 226 (uranium progeny) is 1:1.6. So, the radium from the thorium is
at much greater levels than would be expected from comparing the uranium and
thorium-232 content.
None of the tables in the SER reveal how much greater the radium content from
thorium is, in relationship to the amount of thorium compared to uranium. Nor, is their
any discussion of the implications of this relationship.
Rather, the DRC has minimized the impacts from the thorium content of the
Uranium Material, relying only on the thorium content, rather than the much larger
radium content derived from thorium-232. The statement that the "Concentrations of
Thorium-232 and its decay products are negligible and can be ignored" (page 14) have no
basis in fact when it comes to the radium content.
Thorium 0.005%
Uranium 1.4% 280
Radium 224 & Radium 228 15.0 pCi/g 1:
Radium - 226 24.1 pCi/g 1.6
Total Radium 39.1 pCi/g
4 It is not known if the percent thorium content stated in the Amendment Request is total thorium
(thorium-232 and thorium-228) or just thorium-232. Additionally, the SER estimates that the
thorium-232 content is .00076 % making the ratio of uranium to thorium-232 1; 1,974. Neither
the Amendment nor the SER are always clear whether they are considering total thorium
(thorium-232 plus thorium-228) or why only thorium-232 is being measured and not
thorium-228.
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
6
The SER must acknowledge and consider that fact that the radium content of the
thorium is about 2/3 that from the uranium and, therefore, the radon emissions from the
thorium will be almost as much as from the uranium and cannot be ignored.
5.4. Table 5 (page 11) compares the radionuclide activity concentrations in the
proposed Uranium Material with other feed materials. Most of the previous alternated
feed material identified in the table is from the W.R. Grace Application of April 2000,
over 13 years ago. Since the W.R. Grace material was never shipped to the White Mesa
Mill and it is unlikely that it ever will be shipped to the Mill, the W.R. Grace material and
any other alternative feed that has never been processed at the Mill should not be used as
a comparison with the DMC Uranium Material. Only feed materials actually received
and processed at the Mill should be used for comparison.
5.5. During the October 9, 2013, hearing in Salt Lake City, DRC staff stated that
the 1979 NRC NEPA environmental analysis for the White Mesa Mill5 evaluated the
processing of ores containing thorium-232 and thorium-228. I would assume that those
ores came from the Colorado Plateau. The DRC should state exactly where in the 1979
ES the NRC states the thorium-232 and thorium-228 content of ores that would be
processed at the Mill and where, exactly, the processing of ores containing thorium was
evaluated.
5.6 The 1979 ES did not assess any of the environmental impacts from the
processing of any feed materials other than "ore" at the White Mesa Mill.
6. Transportation and Storage of the Uranium Material
6.1. The discussion of the transportation of the Uranium Material fails to provide
information about how well prepared the local, state, and federal agencies are to respond
to a spill of the Uranium Material. The SER must evaluate the possible impacts from a
spill of the Uranium Material and the ability of the appropriate agencies to respond.
6.2. The SER (page 17) states that EFRI employees will take actions within 30-
minutes to stop the generation of visible dust. First of all, if the material has degraded to
dust particles, a lot of dust could be dispersed within a 30-minute period. Additionally,
winds also blow at night when it would be difficult to observe the dispersal of dust.
Additional measures must be taken to assure that the Uranium Material would not be
dispersed from the ore storage pads under any wind or lighting conditions. Additionally,
if any materials are dispersed, whether on-site or off-site, the material must be promptly
cleaned up.
5 Final Environmental Statement (ES) Related to Operation of White Mesa Uranium Project,
1979
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
7
ALTERNATE FEED ASSESSMENT PROCESS
7. Determination of whether the feed material is an ore.
7.1. The SER (page 2) states: "For the tailings and wastes from the proposed
processing to qualify as lie.(2) byproduct material, the feed material must qualify as
'ore.'"
The DRC errs in stating that the feed material must "qualify" as "ore." Based on
the statute, the feed material must be "ore." Also, it must be "ore," as contemplated by
the AEA (42 U.S.C. §2014 (e)(2)) and the regulations promulgated by the NRC (10
CFR. § 40.4) and the Environmental Policy Act (EPA) (40 C.F.R. Part 192) responsive
to the 1978 Uranium Mill Tailing Radiation Control Act (UMTRA) (Public Law 95-604,
92 Stat. 3033 et seq.), which amended the AEA of 1954 (Public Law 83-703, 68 Stat.
919 et.seq.). The AEA of 1954 was an amendment of the AEA of 1946 (Public Law
79-385,60 Stat. 755 et seq.)
7.2. The material must be "ore," because the AEA defines 1 le.(2) byproduct
material as "the tailings or wastes produced by the extraction or concentration of uranium
or thorium from any ore processed primarily for its source material content." According
to the White Mesa License Condition 10.1 A: "The licensee may not dispose of any
material on site that is not "byproduct material," as that term is defined in 42 U.S.C.
Section 2014(e)(2) (Atomic Energy Act of 1953, Section 11(e)(2)). Therefore, the wastes
from the processing of materials other than "ore" do not meet the statutory definition of
lie.(2) byproduct material and should not be disposed of at the White Mesa Mill.
7.3 The SER also states that in order to determine whether the feed material is
"ore" the DRC can rely on a definition of "ore" that has been establish by the NRC. The
SER references SECY 95-211, SECY 99-012, and regulatory issue summary 2000-236.
The DRC also relied on the NRC "Interim Guidance on the Use of Uranium Mill Feed
Material Other Than Natural Ores" (Interim Guidance), dated November 30, 2000. The
DRC did not make those documents available on the DRC website. The DRC should
have made any documents relied on for the review of the subject license amendment
available, and included the links in the SER and the DRC website Public Notice of the
proposed licensing action.
7.4 . The NRC documents relied on by the DRC are from a policy guidance. A
policy guidance is neither statute or regulation. The policy guidance has no legal force
and effect. Nor, can a federal policy guidance be used to substantively amend a federal
statute or regulation. Additionally, the State of Utah is not authorized to amend a federal
statute or regulation.
6 U. S. Nuclear Regulatory Commission, Office of Nuclear Material and Safety and Safeguards,
NRC Regulatory Issue Summary 2000-23, Recent Changes to Uranium Recovery Policy,
Washington, D.C., November 30, 2000. "Interim Guidance on the Use of Uranium Mill Feed
Material Other Than Natural Ores" (Interim Guidance), November 30, 2000.
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
8
7.5. The SER quotes the from the NRC Interim Guidance's new definition of the
term ore: "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." Emphasis added. In other words,
the DRC is adopting a substantive change to a federal and statutory definition in order to
facilitate the processing of radioactive waste in the guise of "ore." The State of Utah has
no legal authority to make such change to federal statute and NRC and EPA regulation.
8. Definition of "ore."
8.1. The applicability of various environmental regulations to a great degree
depends upon definitions. Congress, in their legislative function, often specifically
defines words or phrases related to the application of a statute to a particular material or
circumstances —when there is a need for explanation. However, when using words or
terms with a common and accepted meaning, such as groundwater, mill, tailings, or "ore,"
no explanation or definition is necessary.
The word "ore" like the word "water," is a word of common and extensive usage
with a clear meaning. It is not a new regulatory term, such as "source material" or "lie.
(2) byproduct material," which have been established under the AEA. "Ore" is not
simply a material definition, such as "waste" or "tailings." The term "ore" has an widely
accepted plain meaning. Further, there has been a well understood and unchanged
meaning of the word "ore" throughout the history of the Atomic Energy Act. That is why
"ore" was not defined in the AEA or NRC or EPA regulation.
The word, or term, "ore," as defined in several sources:
• Ore—a naturally occurring solid material from which metal or other
valuable minerals may be extracted. [Illustrated Oxford Dictionary,
DK Pub. 1998.]
• Ore—A native mineral containing a precious or useful metal in such
quantity and in such chemical combination as to make its extraction
profitable. Also applied to minerals mined for their content of non-
metals. [The Compact Oxford English Dictionary, Second Edition,
Oxford University Press, 2000, p. 1224:915-916.]
• Ore—a. A natural mineral compound of the elements of which one at
least is a metal. Applied more loosely to all metaliferous rock, though
it contains the metal in a free state, and occasionally to the compounds
of nonmetallic substances, as sulfur ore. . . . Fay b. A mineral of
sufficient value as to quality and quantity that may be mined for profit.
Fay. [A Dictionary of Mining, Mineral, and Related Terms, compiled
and edited by Paul W. Thrush and Staff of the Bureau of Mines, U.S.
Dept. of Interior, 1968.]
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
9
The Oxford English Dictionary points out that the current usage of the word "ore" goes
back several hundred years. A Dictionary of Mining, Mineral, and Related Terms lists
over 65 compound words using the word "ore," such as ore bin, ore body, ore deposit, ore
district, ore geology, ore grader, ore mineral, ore reserve, ore zone. All of these terms
incorporate the word "ore" as it relates to the mining of a native mineral. The term "ore,"
without explanation, has for many years been used in thousands, if not millions, of
instances in thousands of mining, milling, geological, mineralogical, radiochemical,
engineering, environmental, and regulatory publications.
9. Regulatory history of the use of the term "ore."
9.1. Feed materials other that natural "ore" are not "ore," nor can they be
redefined as "ore" under existing State of Utah regulations or NRC statutes or
regulations. There is no evidence that Congress in passing the AEA, as amended by
UMTRCA, contemplated the use of the word "ore" to mean anything other than a natural
material that is mined for its mineral content.
9.2. The regulatory history of UMTRCA, found in the two Congressional reports,
provide information with respect "uranium mill tailings" and "ore." The Congressional
Reports clearly state what was contemplated by Congress (i.e., the intent of Congress)
when Congress established a program for the control of "uranium mill tailings" from the
processing of "uranium ore" at inactive (Title I of UMTRCA) and active (Title II of
UMTRCA) uranium and thorium processing facilities. House Report (Interior and
Insular Affairs Committee) No. 95-1480 (I), August 11, 1978, and House Report
(Interstate and Foreign Commerce Committee) No. 95-1480 (II), September 30, 1978.
Under "Background and Need," HR No. 95-1480 (I) states:
Uranium mill tailings are the sandy waste produced by the uranium
ore milling process. Because only 1 to 5 pounds of useable uranium is
extracted from each 2,000 pounds of ore, tremendous quantities of waste
are produced as a result of milling operations. These tailings contain
many naturally-occurring hazardous substances, both radioactive and
nonradioactive. ... As a result of being for all practical purposes, a
perpetual hazard, uranium mill tailings present the major threat of the
nuclear fuel cycle.
In its early years, the uranium milling industry was under the
dominant control of the Federal Government. At that time, uranium was
being produced under Federal Contracts for the Government's Manhattan
Engineering District and Atomic Energy Commission program. . . .
The Atomic Energy Commission and its successor, the Nuclear
Regulatory Commission, have retained authority for licensing uranium
mills under the Atomic Energy Act since 1954. [HR No. 95-1480 (1) at
11.]
The second House Report, under "Need for a Remedial Action Program" states:
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
10
Uranium mills are a part of the nuclear fuel cycle. They extract uranium
from ore for eventual use in nuclear weapons and power-plants, leaving
radioactive sand-like waste—commonly called uranium mill tailings —in
generally unattended piles. [HR No. 95-1480 (2) at 25.]
9.3. Atomic Energy Commission and the AEA of 1946. As indicated above, the
domestic uranium mining and milling industry was established at the behest of the
Manhattan Engineer District and the Atomic Energy Commission ("AEC"). The AEC
regulated uranium mines and uranium processing facilities, established ore buying
stations, and bought ore. Under the AEA of 1946 there was no commercial uranium
mining and milling industry. The mining and milling of uranium was done under contract
to the AEC. After the AEA of 1954 there was both a government and commercial
uranium mining and milling industry. AEC purchased uranium ore under the Domestic
Uranium Program. Regulations related to that uranium procurement program were set
forth in 10 C.F.R. Part 60. Part 60 was deleted from 10 C.F.R. on March 3, 1975, after
the establishment of the NRC.
The AEC published a number of circulars related to their Domestic Uranium
Program. The Domestic Uranium Program—Circular No. 3—Guaranteed Three Year
Minimum Price—Uranium-Bearing Carnotite-Type or Roscoelite-Type Ores of the
Colorado Plateau Area" (April 9, 1948), an amendment to 10 C.F.R. Part 60, states:
§ 60.3 Guaranteed three years minimum price for uranium-
bearing carnotite-type or roscoelite-type ores of the Colorado Plateau—
(a) Guarantee. To stimulate domestic production of uranium-bearing ores
of the Colorado Plateau area, commonly known as carnotite-type or
roscoelite-type ores, and in the interest of the common defense and
security the United States Atomic Energy Commission hereby establishes
the guaranteed minimum prices specified in Schedule 1 of this section, for
the delivery of such ores to the Commission, at Monticello, Utah, and
Durango, Colorado, in accordance with the terms of this section during the
three calendar years following its effective date.
Note: In §§ 60.1 and 60.2 (Domestic Uranium Program, Circulars
No. 1 and 2), the Commission has established guaranteed prices for other
domestic uranium-bearing ores, and mechanical concentrates, and refined
uranium products.
Note: The term "domestic" in this section, referring to uranium,
uranium-bearing ores and mechanical concentrates, means such uranium,
ores, and concentrates produced from deposits within the United States, its
territories, possessions and the Canal Zone.
10 C.F.R. Part 60—Domestic Uranium Program at § 60.5(c) states"
Definitions. As used in this section and in § 60.5(a), the term
"buyer' refers to the U.S. Atomic Energy Commission, or its authorized
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
11
purchasing agent. The term "ore" does not include mill tailings or
other mill products.. . . [Emphasis added.] [Circular 5,14 Fed. Reg.
731 (February 18, 1949).]
The AEC was the primary mover in the domestic uranium mining and milling
program. Under the AEA of 1946 and 1954, the AEC regulated uranium mining and
milling and had an established a uranium ore-buying program. From the 1940's to 1975,
the regulations in 10 C.F.R. Part 60 clearly indicted that "ore" does not include mill
tailings or other mill products.
10. Statutory definition of source material.
10.1. The AEA of 1946, under "Control of Materials," Sec. 5 (b), "Source
Materials," (1), "Definition," provides the definition of "source material." Section 5(b)(1)
states:
Definition. — As used in this Act, the term "source material"
means uranium, thorium, or any other material which is determined by the
Commission, with the approval of the President, to be peculiarly essential
to the production of fissionable materials; but includes ores only if they
contain one or more of the foregoing materials in such concentration as the
Commission may by regulation determine from time to time.
The AEA of 1954, Chapter 2, Section 11, "Definitions," sets forth the current
statutory definition of "source material" at Section 11 (s):
The term "source material" means (1) uranium, thorium, or any
other material which is determined by the Commission pursuant to the
provisions of section 61 to be source material; or (2) ores containing one
or more of the foregoing materials, in such concentrations as the
Commission may by regulation determine from time to time.
[42 U.S.C. Sec. 2014(z).]
Responsive to this statutory definition, in 1961 the AEC established the following
regulatory definition at 10 C.F.R. § 40.4:
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. [26 Fed. Reg. 284 (Jan. 14, 1961).]
Therefore, the AEC made a determination, in accordance with the mandate of the
AEA of 1954, that ores containing 0.05% thorium and/or uranium would meet the
statutory definition of source material. At the same time that they made that
determination, the AEC had a regulation that clearly stated that "ore" does not include
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
12
mill tailings or other mill products. Surely, the AEC, as the administrator of a uranium
ore procurement program and the developer of the uranium mining and milling industry
knew what they were talking about when they used the term "ore."
10.2. Additionally, the AEC set forth certain exemptions to the regulations in 10
C.F.R. Part 40. The proposed rule that was later finalized in January 1961 states, in
pertinent part:
The following proposed amendment to Part 40 constitutes an over-
all revision of 10 CFR Part 40, "Control of Source Material."
With certain specified exceptions, the proposed amendment
requires a license for the receipt of title to, and the receipt, possession, use,
transfer, import, or export of source material. .. .
Under the proposed amendment, the definition of the term "source
material": is revised to bring it into closer conformance with that
contained in the Atomic Energy Act of 1954. "Source Material" is defined
as (1) uranium or thorium, or any combination thereof, in any physical or
chemical form, but does not include special nuclear material, or (2) ores
which contain by weight one-twentieth of one percent (0.05 percent) or
more of (a) uranium, (b) thorium or (c) any combination thereof. The
amendment would exempt from the licensing requirements chemical
mixtures, compounds, solutions or alloys containing less than 0.05 percent
source material by weight. As a result of this exemption, the change in the
definition of source material is not expected to have any effect on the
licensing program. ...
Section 62 of the Act prohibits the conduct of certain activities
relating to source material "after removal from its place of deposit in
nature" unless such activities are authorized by license issued by the
Atomic Energy Commission. The Act does not, however, require a license
for the mining of source material, and the proposed regulations, as in the
case of the current regulations, do not require a license for the conduct of
mining activities. Under the present regulation, miners are required to
have a license to transfer the source material after it is mined. Under the
proposed regulation below, the possession and transfer of unrefined and
unprocessed ores containing source material would be exempted. [47 Fed.
Reg. 8619 (September 7, I960).]
Therefore, the AEC established, via a rulemaking, exemptions for source material
as defined in Sec. 2014(z)(l) related to mixtures, compounds, solutions, or alloys
containing uranium and/or thorium:
(a) Any person is exempt from the regulations in this part and from
the requirements for a license set forth in section 62 of the Act to the
extent that such person receives, possesses, uses, transfers or delivers
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
13
source material in any chemical mixture, compound, solution, or alloy in
which the source material is by weight less than one-twentieth of 1 percent
(0.05 percent) of the mixture, compound, solution or alloy. The exemption
contained in this paragraph does not include byproduct material as defined
in this part. [10 C.F.R. § 40.13(a), 26 Fed. Reg. 284 (Jan. 14, 1961).]
The AEC also established, via a rulemaking, exemptions for source material as
defined in Sec. 2014(z)(2) related to "ore":
(b) Any person is exempt from the regulations in this part and from
the requirements for a license set forth in section 62 of the act to the
extent that such person receives, possesses, uses, or transfers
unrefined and unprocessed ore containing source material; provided,
that, except as authorized in a specific license, such person shall not
refine or process such ore. [10 C.F.R. 40.13(b), 26 Fed. Reg. 284 (Jan. 14, 1961).]
The definition of "source material" and the exemptions that are related to those
definitions stand today, over fifty years later. These regulatory definitions and
exemptions did not change when the NRC was established in 1975 and took on the
regulatory responsibility for "source material." These regulatory definitions and
exemptions did not change when the AEA was amended by UMTRCA in 1978. These
regulations and definitions did not change when the NRC developed their policy
guidances related to the processing of wastes from various mineral processing operations
(including the commingled soils and wastes from other sources) at licensed uranium
recovery operations.
11. Definition of 1 le.(2) byproduct material.
11.1. UMTRCA, among other things, amended the AEA of 1954 by adding a new
definition, the definition of lie.(2) byproduct material:
Sec. 201. Section lie. of the Atomic Energy Act of 1954, is
amended to read as follows:
"e. The term 'byproduct material' means (1) any radioactive
material (except special nuclear material) yielded in or made radioactive
by exposure to the radiation incident to the process of producing or
utilizing special nuclear material, and (2) 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. Sec. 2014
(e).]
There is no evidence in the regulatory history of UMTRCA that Congress, in
defining "lie.(2) byproduct material" intended to also amend the statutory definition of
"source material." There is no evidence in the regulatory history of UMTRCA that the
term "any ore" does not mean "any type of uranium ore" (e.g., ore containing less than
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
14
0.05% uranium and/or thorium and the numerous types of natural uranium-bearing
minerals that were mined at uranium mines and purchased by the AEC under their
domestic uranium ore procurement program or under the commercial "uranium milling"
program). There is no evidence in the regulatory history of UMTRCA that Congress
intended the term "any ore" to mean anything that the NRC, DRC, or EFRI wants it to
mean (e.g., the wastes from mineral processing operations, including wastes mixed with
soils and commingled with the wastes from other sources, even if those wastes are
processed for their source material content at a uranium or thorium mill).
12. Regulatory Background
12.1. Although both the EPA and the NRC established a regulatory program for
uranium milling and the processing of ores, neither the EPA nor the NRC contemplated
the processing of materials that were not "ore." Neither the EPA nor the NRC considered
wastes from other mineral processing operations (including contaminated soils and
wastes from other sources) in their concept of "ore," and they did not address in any
manner the processing of such wastes when promulgating their regulatory regimes for
active uranium processing facilities. Further, during the various rulemaking proceedings,
the public was never informed that wastes from other mineral processing operations
(including commingled contaminated soils and wastes from other sources), no matter
how they were defined, would be processed at licensed uranium or thorium mills.
Therefore the public was given no reasonable opportunity to comment on such processing
activities at uranium mills.
12.2. Responsive to UMTRCA, the NRC incorporated the UMTRCA definition
of lie.(2) byproduct material (with clarification) into their regulations at
10 C.F.R. § 40.4:
"Byproduct Material" means the tailings or wastes produced by the
extraction or concentration of uranium or thorium from any ore processed
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. [44 Fed. Reg. 50012-50014
(August 24, 1979).]
The NRC also explained the need for the new definition:
Section 40.4 of 10 CFR Part 40 is amended to include a new
definition of "byproduct material." This amendment, which included
uranium and thorium mill tailings as byproduct material licensable by the
Commission, is required by the recently enacted Uranium Mill Tailings
Radiation Control Act. [44 Fed. Reg. 50012-50014 (August 24, 1979).]
The NRC promulgated further regulations amending Part 40, in 1980, 45 Fed. Reg.
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
15
65521-65538 (October 3, 1980). In the summary, the NRC states:
The U.S. Nuclear Regulatory Commission is amending its regulations to
specify licensing requirements for uranium and thorium milling activities,
including tailings and wastes generated from these activities. The
amendments to parts 40 and 150 take into account the conclusions reached
in a final generic environmental impact statement on uranium milling and
the requirements mandated in the Uranium Mill Tailings Radiation Control
Act of 1978, as amended, public comments received on a draft generic
environmental impact statement on uranium milling, and public comments
received on proposed rules published in the Federal Register. [Footnotes
omitted.]
There is no statement in any of the NRC regulations in 10 C.F.R. Part 40 or in any
of rulemaking proceedings promulgating those regulations that wastes from other mineral
processing operations (including wastes from other sources) was "ore," under any
circumstances, or that, under any circumstances, such wastes would be processed at
licensed uranium or thorium mills and the tailings or wastes would be disposed of as lie.
(2) byproduct material in the mill tailings impoundments. The regulations promulgated
by the NRC did not contemplate this kind of activity. The NEPA document in support of
the promulgation of the NRC regulatory program for uranium mills did not contemplate
this kind of activity. Also, in the rulemaking proceedings and NEPA proceeding, the
public did not have an opportunity to contemplate and comment on this kind of activity.
12.3. The NRC Final Generic Environmental Impact Statement on Uranium
Milling (GEIS) NUREG-0706, September 1980, includes a clear statement regarding the
scope of the GEIS and its understanding of what uranium milling entails:
As stated in the NRC Federal Register Notice (42 FR 13874) on
the proposed scope and outline for this study, conventional uranium
milling operations in both Agreement and Non-Agreement States, are
evaluated up to the year 2000. Conventional uranium milling as used
herein refers to the milling of ore mined primarily for the recovery of
uranium. It involves the processes of crushing, grinding, and leaching of
the ore, followed by chemical separation and concentration of uranium.
Nonconventional recovery processes include in situ extraction or ore
bodies, leaching of uranium-rich tailings piles, and extraction of uranium
from mine water and wet-process phosphoric acid. These processes are
described to a limited extent, for completeness. [GEIS, Volume I, at 3.]
12.4. Section 3.3 of the GEIS is entitled "Prospects for Unconventional Methods
of Uranium Production." GEIS at 3-8. In the discussion of unconventional methods of
uranium production, there is no discussion of the processing of the types of materials that
have been processed at the White Mesa Mill as "alternate feed materials" as one of the
types of "unconventional methods of uranium production."
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
16
12.5. The GEIS is very clear about what it considers "ore" to be and gives no
indication whatsoever that materials other than ore, such as the tailings or waste from
mineral processing operations (including commingled contaminated soils and waste
materials from other sources) are considered to be "ore."
12.6. The GEIS includes a discussion of "Past Production Methods." That
discussion makes reference to "ore," "ore exploration," "pitchblende ore," "crude ore
milling processes," "lower-grade ores," "uranium-bearing gold ores," "high-grade ores,"
"ore-buying stations," and "ore reserves." GEIS, Volume I, Chapter 2, at 2-1 to 2-2.
There is a lengthy discussion of "Uranium Mining and Milling Operations" that provides
a description of the commonly and less-commonly "used methods of mining uranium
ores." GEIS, Volume II, at B-1 to B-2. Appendix 1.
12.7. In Chapter 6, "Environmental Impacts," there is a discussion of "Exposure
to Uranium Ore Dust," which states, in part:
Uranium ore dust in crushing and grinding areas of mills contains
natural uranium (U-238, U-235, thorium-230, radium-226, lead-210, and
polonium-210) as the important radionuclides. [GEIS, Volume I, at 6-41.]
There is also a table giving the "Average Occupational Internal Dose due to
Inhalation of Ore Dust." GEIS at 6-41, Table 6.16. Further, the GEIS discusses
"Shipment of Ore to the Mill" (GEIS at 7-11), "Sprinkling or Wetting of Ore
Stockpile" (GEIS at 8-2), "Ore Storage" and "Ore Crushing and Grinding" (GEIS at 8-6),
"Ore Pad and Grinding" (GEIS, Vol. 3, at G-2), "Ore Warehouse (GEIS, Vol. 3, at K-3)
and "Alternatives to Control Dust from Ore Handling, Crushing, and Grinding Operations
(GEIS, Vol. Ill, at K-3 to K-3). In the NRC responses to comments there are discussions
of "Average Ore Grade, Uranium Recovery" (GEIS, Vol. II, at A-12 to A-13). None of
these references to "ore" contemplated wastes from mineral processing operations. The
GEIS gives no indication whatsoever that such wastes are "ore," even if they were
processed at a uranium or thorium recovery facility for their "source material content."
Clearly, the GEIS did not consider that the wastes from the processing of such wastes
would meet the definition of 1 le.(2) byproduct material.
12.8. In sum, the GEIS, which was developed for the rulemakings associated
with the regulation of lle.(2) byproduct material, did not evaluate, and the public did not
have an opportunity to comment upon, any of the possible health, safety, and
environmental impacts of the processing of other mineral processing wastes at uranium or
thorium processing facilities. They did not evaluate transportation issues related to the
transportation of such wastes, nor were reasonable alternatives to the transportation,
receipt, processing, and disposal of such wastes at uranium or thorium mills ever
evaluated.
13. EPA standards.
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
17
13.1. UMTRCA directed the EPA to establish standards for uranium mill tailings
and directed the NRC to implement those standards. That statute, as codified in 42
U.S.C. 2022, states in pertinent part:
Sec. 2022. Health and environmental standards for uranium mill
tailings
(b) Promulgation and revision of rules for protection from hazards at
processing or disposal site.
(1) As soon as practicable, but not later than October 31, 1982, the
Administrator shall, by rule, propose, and within 11 months thereafter
promulgate in final form, standards of general application for the
protection of the public health, safety, and the environment from
radiological and nonradiological hazards associated with the processing
and with the possession, transfer, and disposal of byproduct material, as
defined in section 2014(e)(2) of this title, at sites at which ores are
processed primarily for their source material content or which are used
for the disposal of such byproduct material. If the Administrator fails to
promulgate standards in final form under this subsection by October 1,
1983, the authority of the Administrator to promulgate such standards
shall terminate, and the Commission may take actions under this chapter
without regard to any provision of this chapter requiring such actions to
comply with, or be taken in accordance with, standards promulgated by
the Administrator. In any such case, the Commission shall promulgate, and
from time to time revise, any such standards of general application, which
the Commission deems necessary to carry out its responsibilities in the
conduct of its licensing activities under this chapter. [Emphasis added.]
Requirements established by the Commission under this chapter
with respect to byproduct material as defined in section 2014(e)(2) of this
title shall conform to such standards. Any requirements adopted by the
Commission respecting such byproduct material before promulgation by
the Commission of such standards shall be amended as the Commission
deems necessary to conform to such standards in the same manner as
provided in subsection (f)(3) of this section. Nothing in this subsection
shall be construed to prohibit or suspend the implementation or
enforcement by the Commission of any requirement of the Commission
respecting byproduct material as defined in section 2014(e)(2) of this title
pending promulgation by the Commission of any such standard of general
application. In establishing such standards, the Administrator shall
consider the risk to the public health, safety, and the environment, the
environmental and economic costs of applying such standards, and such
other factors as the Administrator determines to be appropriate.
* * *
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
18
(d) Federal and State implementation and enforcement of the standards
promulgated pursuant to subsection (b) of this section shall be the
responsibility of the Commission in the conduct of its licensing activities
under this chapter. States exercising authority pursuant to section 2021(b)
(2) of this title shall implement and enforce such standards in accordance
with subsection (o) of such section. [42 U.S.C. 2022(b) and (d).]
Congress directed the EPA only to establish standards for "sites at which ores are
processed primarily for their source material."
13.2. The EPA, as mandated by UMTRCA, finalized the "Environmental
Standards for Uranium and Thorium Mill Tailings at Licensed Commercial Processing
Sites" in 1983. 48 Fed. Reg. 45925-45947, October 7, 1983. In the "Summary of
Background Information" the EPA provides a discussion of "The Uranium Industry" (i.e.,
the industry and the type of sites that the regulations apply to):
The major deposits of high-grade uranium ores in the United States
are located in the Colorado Plateau, the Wyoming Basins, and the Gulf
Coast Plain of Texas. Most ore is mined by either underground or open-
pit methods. At the mill the ore is first crushed, blended, and ground to
proper size for the leaching process which extracts uranium. . .. After
uranium is leached from the ore it is concentrated .... The depleted ore,
in the form of tailings, is pumped to a tailings pile as a slurry mixed with
water.
Since the uranium content of ore averages only about 0.15 percent,
essentially all the bulk or ore mined and processed is contained in the
tailings. [48 Fed. Reg. 45925,45927, October 7,1983.]
13.3. Clearly, when the EPA developed its standards for uranium and thorium
mills, they stated, with specificity and particularity, what uranium ore was, what uranium
milling consisted of, and what uranium mill tailings consisted of. EPA clearly stated that
the standards applied to the processing of uranium and thorium ores at uranium and
thorium mills. There is no reasonable evidence that would indicate that the standards
promulgated by the EPA applied to the processing of wastes from other mineral
processing operations at uranium and thorium mills.
13.4. Additionally, the EPA incorporated the 42 U.S.C. 2014(z) definition of lie.
(2) byproduct material, as clarified by the NRC in 10 C.F.R. 40.4, into their standards at
40 C.F.R. Subpart D, § 192.31(b). Since that time the EPA has not amended their
definition of lle.(2) byproduct material in a rulemaking proceeding, nor have they
amended their definition via policy guidance. The EPA has not, in any manner, widened
the use of the words "any ore" to include mineral processing wastes or other materials
called "alternate feed."
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
19
13.5. The EPA did not sanction the NRC's policy guidance with respect new
definitions of "ore" and lie,(2) byproduct material, nor has the EPA adopted the NRC
Interim Guidance. Therefore, the EPA standards in 40 C.F.R. Part 192 do not in any
manner apply to the processing of alternate feed or the wastes from the processing of
alternate feed. The State of Utah has no legal authority to enforce EPA standards in the
receipt, storage, processing, and disposal of alternate feed materials. There is no legal
basis for applying those standards to the processing of feed materials other than "natural
ore." (Note that, by definition "ore" is a natural or native material.")
13.6. Clearly, the EPA, as directed by Congress, has not in any manner
contemplated the processing of wastes from other mineral extraction operations at
uranium or thorium mills when establishing the "Environmental Standards for Uranium
and Thorium Mill Tailings at Licensed Commercial Processing Sites."
13.7. When compiling that list of potential hazardous constituents that could be
found in uranium mill tailings and incorporating that list into 40 C.F.R. Part 192, the EPA
did not in any manner contemplate the processing of wastes (such as the Midnite Mine
material) from other mineral extraction operations at the mills for which they were
establishing standards. The EPA did not address in any manner effluents that might result
from the processing of alternate feed materials.
13.8. In the various rulemaking proceedings that have taken place in the
establishment of the EPA standards, the public was given no opportunity to consider or
comment on the possibility that the EPA standards would also apply to the processing of
wastes from other mineral processing operations (including commingled soils and waste
materials from other sources) at uranium and thorium mills.
It is true that the EPA and the NRC, in establishing their regulatory program,
contemplated the processing of ores at uranium and thorium mills. However, as shown
above, processing of wastes from other mineral processing operations (alternate feed) at
uranium and thorium mills is beyond the scope of the regulatory program established by
the NRC and the EPA in response to UMTRCA.
13.9 Furthermore, 10 C.F.R. Part 40, Appendix A, Criterion 8, states in part:
Uranium and thorium byproduct materials must be managed so as to
conform to the applicable provisions of Title 40 of the Code of
Federal Regulations, Part 440, "Ore Mining and Dressing Point Source
Category: Effluent Limitations Guidelines and New Source
Performance Standards, Subpart C, Uranium, Radium, and Vanadium Ores
Subcategory," as codified on January 1, 1983.
There is no indication that this NRC regulation and the regulation in 40 C.F.R.
Part 440 (and the enabling statute) have in any manner been amended or altered by
subsequent NRC Interim Guidance. Therefore, any shift in the usage of the word "ore"
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
20
would conflict with these statutory and regulatory authority with respect this regulation.
14. Regulatory History of NRC's Alternate Feed Guidance
14.1. In the late 1980's the NRC was faced with a few requests to process
material other than ore at licensed uranium mills. At that time and today, there are two
statutes or regulations (implementing those statues) that are pertinent. First is the
statutory definition of "source material" established in 1954 by the AEA, found at 42
U.S.C. Sec. 2014(z), and in the NRC regulatory definition of "source
material" (established in 1961 pursuant Sec. 2014(z)), found at 10 C.F.R. 40.4:
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.
The second is the definition of "byproduct material" in Section 11(e)(2) of the
Atomic Energy Act of 1954, as amended, (42 U.S. C Sec. 2014(e)(2)) and the regulatory
definition of "byproduct material" found in 10 C.F.R. 40.4:
Byproduct Material means the tailings or wastes produced by the
extraction or concentration of uranium or thorium from any ore processed
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.
The NRC had several options, one of which would have been to go to Congress
and request that Congress change the definition of lle.(2) byproduct material to read "the
tailings or wastes produced by the extraction or concentration of any ere material
processed primarily for its source material content." NRC Staff made a determination
that they would not go to Congress to seek an amendment to the AEA of 1954.
Instead, what the NRC did was to manipulate the use of the word "ore" as it is
used in the definition of 1 le.(2) byproduct material. NRC proposed for notice and
comment that a policy guidance be established for the purpose of interpreting the term
"ore," as it is used in the definition of lle.(2) byproduct material. 57 Fed. Reg. 20525
(May 13, 1992). Further, the NRC did not institute a rulemaking proceeding to amend 10
C.F.R. Part 40.
Based on the new use of the term "ore" as put forth in the proposed guidance, not
only would the definition of lie.(2) byproduct material apply to "any ore processed
primarily for its source material content" in a licensed uranium or thorium mill, but the
definition of lie.(2) byproduct material would also apply to any material (particularly
wastes from various mineral extraction operations and various commingled wastes and
materials) processed primarily for its source material content in a licensed uranium or
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
21
thorium mill. In other words, NRC altered the accepted meaning of the word "ore" as
that word ore was used in a statutory definition.
14.2. On May 14, 1992, NRC Staff, sent a letter to the Environmental Protection
Agency, enclosing a copy of the May 13 proposed rules and requested EPA comment on
two proposed guidance documents and their associated staff analyses. Letter from Robert
M. Bernero, Director, Office of Nuclear Material Safety and Safeguards, NRC, to Sylvia
K. Lowrance, Director, Office of Solid Waste, EPA, May 14, 1992. The EPA did not
submit comments on the proposed policy guidances. The only documentation of EPA's
response to that request for comment is quoted below and is found in the Commission
Paper that forwarded the finalized guidances to the Commission for their approval:
There was an issue that delayed finalization of the guidance
documents. In an October 1992, mixed waste meeting between the NRC,
the EPA, and DOE staff, EPA identified potential inconsistencies in NRC's
interpretation of the definition of source material in conjunction with the
exclusion of source material from the definition of solid waste in the
Resource Conservation and Recovery Act (RCRA). In making its point,
EPA cited the May 13, 1992, Federal Register notice on the disposal of
non-lie.(2) byproduct material. The staff had delayed finalization of the
uranium recovery policy guidance documents, pending resolution of the
source material definition issue. However, the staff has now decided that
these two policy guidance documents can be finalized, independent of the
source material issue, because the guidance is not dependent on the
interpretation of the definition of source material. ["Final 'Revised
Guidance on Disposal of Non-Atomic Energy Act of 1954, Section lle.(2)
Byproduct Material in Tailings Impoundments' and Final 'Position and
Guidance on the Use of Uranium Mill Feed Materials Other Than Natural
Ores,'" SECY-95-221, August 15, 1995. ]
The Revised Position and Guidance and the Final Position and Guidance gave no
indication that the NRC was amending, interpreting, or in any manner adjusting the
accepted meaning of the term "ore" as that word is used in the statutory and regulatory
definition of "source material." Nor was there any discussion in the various guidances
related to the processing of material other than natural ore (i.e. material that is not ore at
all) of how the exemptions set forth in 10 C.F.R. §40.13(a) and (b) would be impacted by
guidance's new definition of "ore"
There is no indication that the "source material definition issue" has ever been
appropriately addressed or resolved. It is an issue that has lain in some pretty murky
regulatory waters for quite some time.
14.3. Again, It is plain from the AEA of 1946, the legislative history of the AEA
of 1954 and UMTRCA, the regulatory history of the AEC, EPA, and NRC rules
promulgated responsive to those laws, that the Interim Guidance's new use of the term
"ore" goes far beyond the accepted meaning of that term and the clear intent of Congress.
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
22
Therefore, the DRC, which is authorized to administer and enforce the NRC and EPA
regulations applicable to uranium mills cannot make use of a definition of "ore" to claim
that the wastes produced from the processing of that material meets the statutory
definition of " 1 le.(2) byproduct material. That new definition was not derived from
statute or regulation, was not the subject of a federal rulemaking, was not the subject of
NEPA associated with the applicable EPA or NRC rulemakings.
The NRC and DRC are not authorized to shift these accepted definitions at will as
an expression of their "regulatory flexibility." This is especially so when such shifts
result in direct conflicts with NRC's own enabling statutes and regulations, as is the case
with the use of the newly defined term "ore." Additionally, NRC and DRC are not
authorized to shift definitions at will when such shifts directly conflict with the statutory
authority of another federal agency, in this case, the EPA.
15. Interim Guidance
15.1. The DRC staff reviewed the Amendment Request using "Interim Guidance
on the Use of Uranium Mill Feed Material Other Than Natural Ores."
Prior to the use of the Interim Guidance, the NRC Staff relied upon the 1995
"Final Position and Guidance on the Use of Uranium Mill Feed Materials Other Than
Natural Ores."
The Interim Guidance amended the 1995 Final Guidance in several important
respects. For example, it removed previous prohibitions regarding the receipt and
processing of materials subject to regulation under the Toxic Substance Control Act
(TSCA) and the Resource Conservation and Recovery Act (RCRA). Yet the public has
never had an opportunity to comment on the Interim Guidance.
The proposed "Position and Guidance on the Use of Uranium Mill Feed Materials
Other Than Natural Ores" was published in the Federal Register for public comment on
May 13, 1992. A notice of the Final Position and Guidance was published in the Federal
Register on September 22, 1995.
The NRC never published the Interim Guidance in the Federal Register as a
proposed policy guidance for public comment, nor did the NRC publish a notice in the
Federal Register announcing Interim Guidance as a final policy guidance.
15.2. The law is well settled that a federal agency such as the NRC cannot rely
upon policy statements and guidance to accomplish rulemaking under the Administrative
Procedure Act.
15.3. Since neither the Interim Guidance nor the accompanying definition of
"ore" has been finalized as an NRC regulation, the DRC's use of the Interim Guidance is
without regulatory foundation.
The DRC is not authorized to make use of any policy guidance, no matter where it
comes from, to make substantive changes to federal regulations that the DRC administers
and enforces.
16. EPA Radionuclide NESHAPS
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
23
16.1. The EPA has established standards applicable to the emission of radon from
licensed uranium and thorium mills at 40 C.F.R. Part 61 Subpart W, National Emission
Standards for Radon Emissions From Operating Mill Tailings. The provisions Subpart
W "apply to owners or operators of facilities licensed to manage uranium byproduct
materials during and following the processing of uranium ores, commonly referred to as
uranium mills and their associated tailings." 40 C.F.R. § 61.250. Subpart W also
incorporates the AEA definition of byproduct material: "Uranium byproduct material or
tailings means the waste produced by the extraction or concentration of uranium from
any ore processed primarily for its source material content."
As discussed above, the EPA has never adopted the Interim Guidance new
definition of the term ore, as a policy or a regulation. Therefore, there is no legal basis
for the EPA or the Utah Division of Air Quality (which administers and enforces Subpart
W) to regulate the radon emissions from wastes from the processing of feed materials
other than natural "ore."
CONCLUSION
17. The DRC must deny the Amendment Request for the following reasons:
17.1 The processing of feed material other than natural ore at licensed uranium
mills was not contemplated by the Atomic Energy Act, NRC and EPA regulations
implementing the UMTRCA, the generic EIS's associated with the promulgation of the
NRC and EPA regulations applicable to uranium mills, the White Mesa ES, and other
federal regulations associated with uranium mills (40 C.F.R Subpart W and Subpart T).
17.2. The DRC does not have the authority to enforce EPA standards to mill
tailings that result from the processing of feed material other than natural ore, because,
under EPA regulations, those wastes are not lle.(2) byproduct material.
17.3. The Utah Division of Air Quality does not have the authority to enforce 40
C.F.R. Part 61 Subpart W with respect radon form to mill tailings that result from the
processing of feed material other than natural ore, because, under EPA Part 61
regulations, those wastes are not lle.(2) byproduct material.
17.4. There is no statutory or regulatory basis for the DRC relying on a policy
that substantively alters the statutory and regulatory intent of the federal laws and
regulations that the DRC currently administers and enforces.
17.5. The processing of alternate feed material is a regulatory program that was
established outside the statutory authority of the Atomic Energy Act and EPA and NRC
regulation. The DRC does not have the statutory and regulatory authority to administer
and enforce such a program.
Division of Radiation Control
Comments on White Mesa Mill Amendment Request
October 21, 2013
24
17.6. The DRC based its review of the Amendment Request, the SER, and
proposed licensing action on documents that the DRC failed to identify and failed to
make readily available to the public.
17.7. The wastes from the processing of the Uranium Mill would not meet the
statutory and regulatory definition of lie.(2) byproduct material at contemplated by the
AEA and NRC and EPA implementing regulations and the NEPA and other background
documents in support of those rulemakings. The White Mesa Mill License does not
authorize the disposal of materials that are not lie.(2) byproduct material. Therefore the
disposal of wastes from the processing of the Uranium Material would be a violation of
the License Condition 10.1 A.
17.8. And for other reasons outlined above.
Sarah M. Fields
October 21, 2013