DRC-2022-021933 - 0901a068811047f6

at#!! er:NERGYFUELS
October 13, 2022
SENT VIA E-MAIL AND EXPEDITED DELIVERY
Mr. Doug Hansen Director Division of Waste Management and Radiation Control
Utah Department of Environmental Quality
195 North 1950 West
Salt Lake City, UT 84116
Energy Fuels Resources (USA) Inc.
225 Union Blvd. Suite 600
Lakewood, CO, US, 80228
303 974 2140
www.energyfuels.com
Div of Waste Management and Radiation Control
OCT 1 8 2022
Re: Receipt and Processing of Yellowcake from Sequoyah Fuels Corporation ("SFC") at the Energy Fuels Resources (USA) Inc. ("EFRI") White Mesa Mill
Dear Mr. Hansen:
This letter is to advise the Utah Division of Waste Management and Radiation Control ("DWMRC") of
EFRI's plan to receive and process at the White Mesa Mill (the "Mill") a small quantity (approximately 9
dry tons) of natural uranium source material (the "Source Material" or "SFC Source Material") from SFC's former uranium conversion facility in Gore, Oklahoma, for the purification and concentration of yellowcake product. Under the proposed transaction, SFC will transfer the Source Material to the Mill under 10 CFR 40.51, and the Mill will receive it under its existing Radioactive Materials License No. UT 1900479
(the "RML") as a "licensee-to-licensee" transfer of source material.
EFRI would receive the Source Material from the SFC facility in Gore, Oklahoma (the "Gore Facility" or
the "Facility"), which is in the process of reclamation and termination of its US Nuclear Regulatory Commission ("NRC") License SUB-1010.
SFC proposes to ship approximately 39 drums containing approximately 18,000 dry lbs. (9 dry tons) of uranium oxide yellowcake with process impurities (the "Yellowcake" or "SFC Yellowcake") requiring
purification and concentration.
1.Background
The Gore Facility is a former uranium conversion facility that operated from 1970 to 1993. The facility was
constructed and operated by SFC, as a subsidiary of Kerr-McGee Nuclear Corporation. In 1983 Kerr-McGee
Nuclear Corporation split into Quivira Mining Corporation and SFC, which maintained control of the
Facility. SFC was sold to General Atomics Corporation in 1988 which continued to operate the Facility until
1993.
From 1970 to 1993, the Facility chemically converted uranium ore concentrates (yellowcake) to uranium hexafluoride under NRC Source Material License Number SUB-1010.
From 1987 to 1993, the Facility also converted depleted uranium hexafluoride (UF6) into depleted uranium tetrafluoride (UF4), with the recovery of hydrofluoric acid (HF), in a different circuit on site. SFC will not
DRC-2022-021933
Mill
Mill
Letter to Doug Hansen October 13, 2022 Page 5 of 6 processing at a conversion facility fulfills the "extraction or concentration" terms of 1 le.(2) byproduct material."1 The SFC Gore facility no longer has a front end concentration and purification stage, since the processing operations have been dismantled, and therefore must send the SFC yellowcake 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 1 le.(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 several others accomplished only a portion of the milling process at dispersed locations but were all licensed operations at one time."3Concentrating and purifying the SFC 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. 2.5 Disposal The emptied drums from the Yellowcake will be disposed of in the Mill's tailings management system consistent with the Mill's current plans, procedures and SOPs. As determined by NRC in SECY-02-0095, 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 SFC 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 SFC Yellowcake does not come from SFC' s high thorium concentration area/raffinate pond. The Yellowcake was removed from the uranium oxide feed area and contains no greater thorium content than yellowcake from the Mill itself. Receipt and processing of the SFC Yellowcake will not increase the thorium content of the Mill's tailings management system. 2.6 Other Regulatory Considerations Since there are no different or additional constituents in the SFC Yellowcake than in any other materials processed at the Mill, 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 processing of the SFC Yellowcake will result in approximately seven tons of purified yellowcake, and will not cause the Mill to exceed the RML production limit of 4,380 tons of yellowcake per year. This proposed activity is within the existing safety and environmental review envelope for the facility. Re­processing the uranium oxides involves the same re-digestion and purification steps as re-processing of the Mill's own off-spec yellowcake. Therefore, processing does not: 1 Policy Issue (Notation Vote) SECY-02-0095, page 3. 2 Policy Issue (Notation Vote) SECY-02-0095, footnote 2. 3 Policy Issue (Notation Vote) SECY-02-0095, Attachment 5: Uranium Milling Activities at Sequoyah Fuels Corporation, page 2
Letter to Doug Hansen October 13, 2022 Page 6 of 6
•require any additional chemicals beyond those already in use at the Mill•produce any process conditions (pH, temperature) outside the range of those managed elsewherein the Mill or previously at the Mill,•generate increased levels of radionuclides in any part of the process beyond those produced in theprevious process configurations, or•generate any additional or increased quantities of air emissions.
3.0 Conclusion
The SFC Yellowcake can be received at the Mill as a licensee-to-licensee transfer of source material under
IO CFR 40.51(5) and the Mill License. The 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 l le.(2) byproduct material. As the Yellowcake is not an "ore" it is not an alternate feed material, and hence an amendment to the Mill License is not required.
Further, there are no additional environmental, health, or safety concerns associated with the receipt of the SFC Yellowcake, or the precipitation, drying and packaging of the yellowcake and the disposal of the drums
in the Mill's tailings cells. The SFC Yellowcake has the same chemical composition as several other
materials processed or reprocessed in the Mill. 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 at 303-389-4130.
ENE UEL RESOURCES (USA) INC.
David C. Fryd nlund
Executive Vice President, Chief Legal Officer and Corporate Secretary
cc: Scott Bakken Timo Groves Garrin Palmer Logan Shumway John Uhrie
Kathy Weinel
Jo Ann Tischler (TCS)
(lbs)
11,262 I
Note: Per SFC, dry mass of material be similar to Honeywell YC
MEMORANDUM TO:
FROM:
July 25, 2002
William D. Travers
Executive Director for Operations
Annette L. Vietti-Cook, Secretary
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 front­end 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
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 (L TR) 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 11e.(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 11 e.(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 1 O 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 (L TSP) 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 11 e.(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 1 O 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 11e.(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.
2
Uranium milling
3
2
3
4
4
5
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
11e.(2) byproduct material. Such a classification is different from the staff's 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 LTR (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 (DOI)
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 avoidsome controversy by not reconsidering staff positions on 11 e.(2) byproduct material.
The Commissioners -6-
•This approach maintains staffs previous position on 11 e.(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 overwhat 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 forinstitutional 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 hasbeen able to obtain an independent third party/custodian for institutional controls, andDOE 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 beenunsuccessful because of DOE plans to transfer this responsibility to DOI.
•Continued delays in SFC acquiring an independent third party/custodian expend SFC'slimited 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 11e.(2) byproduct material can only be produced at auranium mill unnecessarily limits flexibility provided by the language in UMTRCA.
•If SFC is unable to obtain an independent third party/custodian, or have DOE assumelong-term care responsibilities, SFC contends would need to decommission the site for
unrestricted use under the L TR, 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 11 e.(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 151(b) of the NWPA. As with Option 1, DOE is not required to
assume control for non-11e.(2) byproduct material that might be disposed of on site, either under
UMTRCA or NWPA 151(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-
11 e.(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-11e.(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 11 e.(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 ofthese 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-11 e(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 SF C's April 30, 2002, response to staff's 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-
•
NRG and DOE have experience in implementing the Part 40, Appendix A,
decommissioning process. NRG 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 requireSFC 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 planunder 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 newlicense 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
( 11 e.(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-11e.(2) wastes in an 11e.(2) cell, which is not guaranteed. The staff does not intendto approve a decommissioning plan which includes an 11 e.(2) cell without the non-
11 e.(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 theL 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 itsapproach 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 NRG approval.
Alternatively, SFC could propose that non-11 e.(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
staff's position on the classification of this waste as 11 e.(2) byproduct material. The staff
position limits the flexibility offered in this case to the milling process (i.e., 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 11e.(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 11 e.(2) byproduct material.
Attachments: 1.Background information
2.Staff memo to Commission on SFC Plan, 1993
IRA by CPaperiello Acting For/
William D. Travers
Executive Director for Operations
3.SFC June 2000 slide proposal to categorize waste as 11 e.(2)
4.SFC January 2001 Proposal to classify waste as 11e.(2)
5.Uranium Milling Activities at Sequoyah Fuels Corporation6.Decision-Making Framework
7.DOE letter re taking over site8.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
NUCLEAR REGULATORY COMMISSION
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Dr. Austin's remarks may suggest that, as a consequence of placing the site on the SD�P list, a decision had been ruede to use the Action Plan criteria, although he noted in response to a comment by the Chairman that if analysis supports something less stringent than Action Plan criteria, the staff would give it serious consideration.
,o assure that there is no misunderstanding, we would like to clarify that, although the Sequoyah Fuels site has been put on the SDMP list, no decision had yet been taken by the staff as tothP. criteria aqainst which the Sequoyah decommissioning effort would be evaluated. Such decision awaits a full site characterization and detailed decommissioning plan, including the nature and extent of the radioactive waste materials, the phy�ical characteristics of the site, and the technical design of any onsite disposal cell.
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BACKGROUND
■SFC OPERA TES A NUCLEAR FUEL­
CYCLE FACILITY IN GORE,
OKLAHOMA (''THE FACILITY''),
PURSUANT TO NRC SOURCE
MATERIAL LICENSE SUB-1010.
■NRC HAS NOT YET APPROVED FINAL
SITE CLOSURE REQUIREMENTS FOR
THE FACILITY, NOR COMPLETED THE
PLANNED EIS EVALUATING SITE
CLOSURE OPTIONS.2
BACKGROUND (cont'd)
■AS PART OF THE FINAL SITE
CLOSURE, SFC MUST DISPOSE OF A
LARGE VOLUME OF WASTES (ABOUT
80% OF ON-SITE WASTES) THAT
WERE GENERA TED FROM FRONT­
END URANIUM RECOVERYPROCESSES
INVOL YING THE CONCENTRATION
AND PURIFICATION OF LICENSED
SOURCE MATERIAL ORE
CONCENTRATES.3
BACKGROUND (cont'd)
■THESE URANIUM RECOVERY
PROCESSES ( e.g., THE ACID-LEACH
PROCESS) ARE SIMILAR TO THOSE
PROCESSES CONDUCTED AT A
''CONVENTIONAL'' URANIUM MILL.!J
4
BACKGROUND (cont'd)
■THEW ASTE MATERIALS CREATED
FROM THE URANIUM RECOVERY
CONCENTRATION AND PURIFICATION
PROCESSES ARE 1 le.(2) BYPRODUCT
MATERIAL
-The Concentration and Purification ProcessesTook Place at the Front-End of the Facility'sOperations Separately From, And Prior To, TheConversion Of Concentrated And Purified OreInto UF6, Or The Reduction Of Depleted UF 4 ToUF6• --------------------------- --
'
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 UF4 •
-These different operations resulted in the
creation of separate and distinct wastes which
were segregated according to source.
J-----------------6
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 1 le.(2).
7
J.____ _
' --,
BACKGROUND (cont'd)
-Conversion: debris from building and structures and
equipment used for the conversion and reduction
processes.
'l,__ ______ _
8
BACKGROUND (cont'd)
■ISSUE OF WHETHER WASTES AT
CONVERSION FACILITY CAN BE 1 lE.(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 Facilitybe remediated as an 1 le.(2)
byproduct material disposal site, with the application of
10 C.F .R. Part 40, Appendix A site closure criteria.9 J __
j
BACKGROUND( cont'd)
- NRC OGC responded to SFC suggestion with
"informal views" that "hexafluoride conversion
plants had never been considered as uranium mills,
and were not contemplated as such in [UMTRCA]."
See Memorandum from J. Taylor, NRC to NRC
Commissioners (July 6, 1993) (emphasis added)
-SFC agrees that conversion processes processes are
not the same thing as milling processes.10
BACKGROUND (cont'd)
-1980 GEIS 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
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 .
conversion.
-Addressing SFC's uranium recovery wastes
-l separately is not inconsistent with, just different
from, past treatment.
12
,l
=--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
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 11 e.(2) byproduct material.
14
..::..:..:::; -�
1
BACKGROUND (cont'd) ■SFC's URANIUM RECOVERYWASTESARE IN ESSENTIALLY THE SAMEPOSTURE AS URANIUM MILLTAILINGS AT LICENSED URANIUMMILLS PRIOR TO PASSAGE OFUMTRCA IN 1978, EXCEPT THAT NOWTHERE IS A MATURE, EFFECTIVESITE CLOSURE PROGRAM IN PLACE.15
!
.:.::J
BASES FOR CLASSIFICATION OF
FRONT-END WASTES AS 11e.(2)
■SFC's URANIUM RECOVERYWASTES
MEET THE DEFINITION OF 1 le.(2)
BYPRODUCT MATERIAL
- - 1 le.(2) byproduct material is defined as:"The tailings or wastes produced by theextraction or concentration of uranium orthorium fro��r�rocessed primarily forits source material content."42 U.S.C. 2014e.(2) (emphasis added).
16
-l
::..::i
-,
BASES FOR CLASSIFICATION OF
FRONT-END WASTES AS 11e.(2)
-The definition of 1 le.(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
oveE�.��1 wa§��s J:esulting from the extraction orjconCertt'rCltion}Jf source materials in the course of
' the nuclear fuel cycle.").
( fc �6 UC,,/f7"�LJ v.s. (.)1'1 re..y, uh I�/ �o /4.,,.,�'r( i; S.SVC
17
_j
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 1 le.(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
I ' '
i l
�
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 al.
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
_J
BASES FOR CLASSIFICATION OF
FRONT-END WASTES AS 11e.(2)(cont'd)
-GEIS supports conclusion that wastes generated
from concentration processes are 1 le.(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
-----------------------------
----l i -I 7
i i
BASES FOR CLASSIFICATION OF
FRONT-END WASTES AS 11e.(2)(cont'd)
- Further, GEIS supports conclusion that
concentration processes are milling:"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)
- GEIS 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: [/Jon exchange ... [solvent extractio,V. .. eluex process ... improved eluex process ... "22
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 GEIS at 2.2.3, 12.5 (heap leaching is
milling and produces 1 le.(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 1 le.(2) wastes).
-Thus, SFC's SX uranium recovery processes at SFC
can be considered a milling process.23
' i
BASES FOR CLASSIFICATION OF
FRONT-END WASTES AS 11e.(2)(cont'd)
■Milling is defined as:
Uranium Milling means any activity that results in the production of by-product material as defined in this part. 10 C.F.R. § 40.4.
24
!_______ _
�BASES FOR CLASSIFICATION OF
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 1 le.(2) byproduct material imply 25
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 1 le.(2) byproduct material." "Legislative history confirms the validity of a broad interpretation of the term "any ore."57 Fed. Reg. 20, 532. 26
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 1 le.(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
1 le.(2).27
1 l
j
BASES FOR CLASSIFICATION OF
FRONT-END WASTES AS 11e.(2)(cont'd)
- NRC has explicitly identified one type of
''refined and processed ore." See 57 Fed. Reg.
20,532, col. 1.
(�f s-Fc)
3.SFC's Front-End Processes Were Primarily
for the Recovery of Uranium.
-1:The sole purpose, not just the primary, purpose of the
concentration of the licensed source material ore
concentrates was to recover uranium.
28
---------------------------------
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.
29
BASES FOR CLASSIFICATION OF
FRONT-END WASTES AS 11e.(2)(cont'd)
■NRC ROUTINELY LICENSES PORTIONS OFFACILITIES DIFFERENTLY.-Fuel-cycle Facilities, Including SFC's, RoutinelyHave Multiple Licenses or License Conditions forDifferent Types of AEA Materials to WhichDifferent Regulatory Standards Apply (e.g., Cabot,
HM/). ;fc � t:<r.-.t<-� 1-J.<�? -NRC Licenses Portions of Non-fuel CycleFacilities.30
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 GEIS 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 I 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, 200 I
Certified Mail -Return Receipt Requested Receipt No. 7099 3220 0002 3295 7055
Larry W. Camper, Branch Chief Decommissioning Branch Division of Waste Management Nuclear Material Safety and Safeguards U.S. Nuclear Regulatory Commission 1 I 545 Rockville Pike Rockville, Maryland 20852-2738
Re: Request for Review of Sequoyah Fuels Corporation's Waste Designation
Dear Mr. Camper:
RE: 0101-N
Sequoyah Fuels Corporation (SFC) hereby requests that the Nuclear Regulatory Commission (NRC) review whether various wastes that resulted from the front-end processes at its facility located in Gore, Oklahoma, should be designated as byproduct material as defined in section I le.(2) of the Atomic Energy Act of 1954, as amended, 42 U.S.C. §§ 2011 et seq. As indicated in the enclosed memorandum and in SFC's June 21, 2000, presentation to various NRC personnel, SFC believes that the wastes resulting from the front-end processes meet the definition of I le.(2) byproduct material and should be designated as such. The memorandum also addresses SFC's plans to deal with the waste materials located at the facility that are not properly classified as I le.(2) byproduct material.
Following your review of the memorandum and the resolution of any questions or concerns that may result therefrom (and assuming that NRC finds that SFC's approach has merit), SFC willsubmit a formal request to amend Source Material License SUB-1010 to authorize the handling, storage, and disposal of 1 le.(2) byproduct material at the facility.
HIGHWAY 10 & 1-40 PO BOX 610, GORE, OKLAHOMA 74435 19181 489-5511 FAX: 1918! 489-2291
January 5, 2001
Page2
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 of a 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 J. Holonich Daniel M. Gillen
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-1010 to authorize the handling and disposal of byproduct material, as
defined in section l le.(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, Oklahoma 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 lJF4tO UF6• While in the past SFC's license has not contained a provision permitting
the possession and disposal of 1 le.(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 of final
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 essentially 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., active/Title 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 of SFC's
1 le.(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 Il regulatory program
developed subsequent to the passage ofUMTRCA is now (some twenty plus years later), a
mature, effective site closure program. 1 The justification for a license amendment is compel I ing 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 D&D rules are currently
applicable to D&D activities at the SFC site (absent approval of an SFC license amendment) 1 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 l le.(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 o/Sequoyah Fuels Corporation, (Gore, Oklahoma), NRC 0kt. 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 l le.(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 l le.(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 the
Introduction to 10 C.F.R. Part 40, Appendix A, provides the licensee and NRC staff with
signiticantflexibiliO, 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
3 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 of.first impression in that proceeding.
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 ofSFC'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 approach to the majority of wastes at the site.
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 and that at a
would unquestionably generate l le.(2) byproduct material.
Final site closure and license termination be accomplished most appropriately for at
least the and 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 l le.(2) byproduct material. Accordingly, an amendment to
SUB-1010 to permit SFC to handle and dispose of 1 le.(2} byproduct material generated by its
front-end uranium (as opposed to its uranium processes at the Facility is
appropriate.
Indeed, although not at a NRC has recently confinned 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 facility are l le.(2) byproduct material suitable for disposal in a licensed l le.(2) facility. Letter from John J. Sunneier, NRC, to William Paul Goranson, Quivira Mining Company (Nov. 10, 1999).
4
IL 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
di.fferen� operations in different areas of the Facility, pursuant to NRC Source Material License
SUB-1010, including (1) the recovery of uranium by concentration and purification processes,
(2) the conversion of concentrated and purified uranium ore into UF6 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 UF•
using depleted UF6 as feed material (hereinafter, DUF• Facility).
5
In addition to the facilities for and and
the SFC site also includes: (1) a storage for the licensed source material concentrates
received from uranium mills; (2) a licensed source material concentrate
sampling facility; (3) a bulk storage area for chemicals such ammonia {NH3),
tributylphosphate-hexane solvent, and hydrofluoric (HF), nitric (HNO3), and sulfuric (H2SO4)
acids; (4) a facility for electrolytic production of fluorine from HF; (S) treatment systems and
storage ponds for both radiological and non-radiological liquid effluent streams; and (6) a facility
for the recovery and beneficial use of ammonium nitrate solution (which results from the solvent
extraction system) fertilizer on SFC-owned land.
The Facility occupies approximately 85 acres of the 600 acre site. The 8S-acre Facility is
presented in more detail in Figure 3-1 of SUB-IO IO. The total area under roof is 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 processing operations, fluorine generation operations, a utility area
and a maintenance area. About 200 feet west of the MPB is the Miscellaneous Digestion
Building (MDB), where yellowcake slurry 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.
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 reseivoir for an
emergency water supply. These areas are shown on Figure 3-1 of SUB-IO l 0.
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 and purification 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-1010 provides a description of the different facility
processes.
m.MATERIAL 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 ore concentration
7
and 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 and processes at various times
during the operating life of the facility. SFC estimates that two (2) to five (5) million cubic feet
of son, 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 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 l le.(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 concentrates and, therefore, will be l le.(2) byproduct material.
Raffinate sludge was produced as a result of neutralizing the acidic raffinate stream from
the SX concentration and process with anhydrous ammonia. It is analogous to the
slimes generated at a uranium mill and will be 1 le.(2) byproduct material. Similarly, the pond 2
residue, the pond 1 spoils pile, the clay liners from ponds 3E and 4, and the clarifier clay liners
each contain varying amounts of raffinate sludge and will be I le.(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 and purification process areas and will be 11 e.(2) byproduct material.
Crushed drums and chipped pallets originated from licensed source material ore
concentrates shipments to the facility and will be l le.(2) byproduct material. s 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 1 le.(2) byproduct material.
Thus, 77% by volume of and 92% of the radionuclide inventory in the wastes will be
l le.{2} byproduct material.
In contrast to the wastes discussed above, wastes resulting from the conversion and
reduction processes will not be l le.(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 l le.(2) byproduct material and were pennitted to be disposed of at the Quivira-Ambrosia Lake l le.(2) disposal facility. See Letter from John J. 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
of the waste volume and radionuclide contents of the major waste types at the site and SFC's
estimate of the distribution between 1 le.(2) byproduct material and non-byproduct material
wastes are contained in Table 1.
IV.THE FACTUAL, LEGAL, AND POLICY BASES LEADING TO THEDETERMINATION THAT CERTAIN URANIUM RECOVERY WASTESAT THE FACILITY ARE UE.(2) BYPRODUCT MATERIAL
A.Introduction
The issue of whether 1 le.(2) byproduct material is generated at conversion facilities was
addressed on a general or macro basis in the past, but only in terms of entire facilities (i.e., mills
vs. conversion facilities/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 l le.(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 also Memorandum
from James Taylor, EDO, NRC, to NRC Commissioners (July 6, 1993). The NRC Office of
General Counsel responded to SFC's suggestion with "informal views' that "hexafluoride
conversion plants had never been considered as uranium mi/ls, and were not contemplated as
such in [UMTRCA]." Id. (emphasis added). Accordingly, OGC asserted that "[t]he uranium
contaminated decommissioning wastes at [SFC] do not fit the definition of 11 e.(2) byproduct
material and thus fall outside the coverage of the Act." Id.
This issue was also addressed by NRC in the 1980 GEIS. Specifically, the GEIS states:
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. (79)
concentration
concentration
conversion plants
facility versus facility plant versus plant
conversionfaci/ilieslplants mills.
concentration
purification generated conversion
reduction conversion plant. concentration purification
conversion plant
inconsistent different
amended by UMTRCA. The White Paper detailed the legislative history of section l le.(2) and
discussed the scope ofNRC'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 l le.(2) byproduct material issue, whether
uranium production wastes satisfying the definition of l le.(2) byproduct material produced for
the Manhattan Engineering District (MED) or Atomic Energy Commission (AEC) prior to 1978,
the date UMTRCA was enacted, are properly considered l le.(2) byproduct material).
Building on treatment of one issue in the White Paper, in 1998, International Uranium
(USA) Corporation (IUC) filed a Petition requesting that the Commission reexamine its policy
on processing other than conventional, natural for its uranium
content in a licensed mill such that the wastes generated are properly considered l le.(2)
byproduct material. That petition was followed shortly by litigation which involved that core
issue. 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 l le.(2) byproduct material and its necessarily close relationship
with the Commission's definition of the term 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 l le.(2)
byproduct material at licensed uranium recovery sites. Memorandum from Annette Vietti­
Cook, Secretary, NRC to William D. Travers, EDO, NRC (Aug. I I, 2000). This decision has
implications for Oklahoma's interest in the final site closure determination for the SFC facility.
These Commission actions are examples of a 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 DSI 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 1),
49 NRC 441,460 (1999) (referencing Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 461 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
l le.(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 1 le.(2) byproduct material. Because these uranium recovery processes
13
take place prior to, and distinctly separate from, processes at SFC's facility, logically,
factually and legally, they can, and should, be considered uranium (by further
and wastes that result from processing licensed source material
concentrates for their source material content. That is, the and
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 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 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
and 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. NRC NUREG-1350, 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 l le.(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% of the total
radionuclide 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 tenn control sta�dards (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 11 e.(2) byproduct material in ground water. In addition, as a practical matter, the
grant of a license amendment win lead to timely final site closure without the need for wholesale
·revisions to SFC's proposed license termination plan which relies significantly on l 0 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 fromConcentration and Purification Processes Are 1 le.(2) Byproduct Material
In evaluating whether materials qualify as 1 le.(2) byproduct material, the appropriate
starting point is the definition of"byproduct material" as set forth in Section 1 le.(2) of the AEA.
15
That definition provides that the following types of materials constitute 11 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
1 le.{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 l le.(2)
byproduct material.
1.SFC's Uranium Recovery Wastes Were Produced By The Extraction orConcentration of Uranium. Consistent With The Definition of l le.(2)
Byproduct Material
As indicated, the first element of the definition of I le.(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 l le.(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 turn to the "ordinary understanding" or "dictionary definition" of a term. See
Babbitt v. Sweet Home Chapter of Communities for a Great Oregon et al., 515 U.S. 687,696
(I 995). 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 l le.(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 l le.(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 l le.(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 l le.(2) byproduct
material. NRC's Final Generic Environmental Impact Statement on Uranium Milling (GEIS)
assumes that wastes generated from the concentration of uranium are properly considered
l le.(2) byproduct material and must be disposed of in accordance with 10 C.F.R. Part 40,
Appendix A The Introduction to the GEIS states:
Conventional uranium miJling 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 GEIS on Uranium Milling, NUREG-0706, Vol.
1, 1-1 (Sept. 1980) (emphasis added). In discussing the evolution of modem conventional
milling techniques, the GEIS 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 ....
GEIS at 3-11. The GEIS 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 GEIS 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: {/Jon exchange. . . solvent
extraction ... e/11ex process ... improved e/uex process ...
GEIS 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 l le.(2) byproduct material.
2.SFC's Uranium Recovery Wastes Were Produced From Processing "Ore"As That Term is Used in AEA Section 1 le.(2)
The second element in the definition of 1 le.(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(b)(2), 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 1 le.(2) of the AEA. In particular, I le.(2) byproduct material was defined
to include wastes from processing a,ry ore primarily for its source material content. By
developing such a broad definition of l le.(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 nuclear fuel-cycle facilities. Thus, as NRC has noted,' the
D. C. Circuit has recognized that "a broad reading of the definition [ of 11 e. (2) byproduct material
is] in line with Congressional expectations." Specifically, in Kerr McGee v. U.S. Nuclear
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 materials in the course of the nuclear fuel cycle.
Ke" McGee vs. U.S. 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 l le.(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 nuclear fuel cycle facility would be
covered under UMTRCA's regulatory program. Thus, Congress defined l le.{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 ore" rather than "unrefined and unprocessed ore" is used in the definition of 11 e.(2) byproduct material imply [sic] that a broader range offeed materials could be processed in a mill, with the wastes still being considered as l le.(2) byproduct material.
57 Reg. at 20,532.
6 57 Fed. Reg. 20525, 20532, col. 2 (May 13, 1993).
20
NRC further noted that:
"any " The definition of 11 e.(2) byproduct material as originally presented in UMTRCA was:
The tailings or wastes produced by the extraction or of uranium or thorium from any source material.
However, there was a concern that tailings resulting from the
processing of containing less than 0.05 percent uranium (the
minimum concentration that would still meet the definition of
source material) would fall outside the definition. To
preclude that possibility, it was suggested that the words "any ore
processed primarily for its source material content" be substituted
for .. any source material."
Id (emphasis added).
Indeed, because l le.(2) byproduct material is defined as being derived from processing
the concepts of and l le.(2) byproduct material are inextricably interrelated under
UMfRCA. As a result, NRC has defined the term broadly, as follows:
is a natural or native matter that may be mined and treated for
the extraction of any of its constituents or from
which source material is extracted in a licensed uranium or thorium
mill.
60 Fed. Reg. 49,296 (Sept. 22, 1995) (emphasis added).
The definition of or 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
Although this definition is framed in tenns of material that is processed at a "licensed uranium or thorium mill," as the legislative history indicates, the definition of l le.(2) byproduct material was in part designed to apply to, and distinguish between, wastes from nuclear Juel 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, 1995), which was specifically intended to address the processing of altemate 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.•
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 IUC's uranium mill
license, an alternate feed (i.e., ore that qualifies as any other matter) can be a waste from a non­
fuel cycle facility 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. IS, 1997)), that contained an average of0.05 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 (April 2, 1997)).1° Further, as the Commission's IUC decision referenced
1 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 GEIS Vol. II at A-88.
9 Indeed, NRC has explicitly identified one type of"rejined 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 of flow 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 of uranium on resins or
the eluate. Several mills (Western Nuclear Inc .• 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 of these alternate feed materials, considering
them to he refined and processed ore.
51 Fed. Reg. 20532. col. 1. (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.''
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 1 le.(2) byproduct material, even if the licensed source
material ore concentrates in the form of yellowcake normally 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 tum 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.
11 Even l le.(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 l le.(2) byproduct material. Congress explicitly contemplated the reprocessing of uranium mill tailingsand NRC has recognized as much. See Uranium Mill Facilities, Notice o/Two Guidance Documents:
Final Revised Guidance on the Disposal o/Non-Atomic Energy Act of /954, Section I Je.{2) ByproductMaterial 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 Staff's 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") smaller or low-grade ore bodies located far from ( or
at least away from) conventional mill facilities (GEIS Vol. I, p. 12-20, Vol. II, p. B-9); and (b)
the underground leaching of uranium from an ore body at an in situ leach 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 facility 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 I icensed 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 concentration and
purification processes are apparent upon comparing the two processes. Figure 1, (taken from
This latest conclusion was recently in a letter to Ms. Katie Sweeney of The letter discusses the definition of"uranium milling" "any activity that results production of byproduct material as defined in this with reference "conventional" and "nonconvential" (i.e. ISL uranium recovery) .. uranium milling" while noting, that ••only facilities that conduct uranium milling" are subject to (i.e. create le.(2) byproduct material.) Secondly, according to the letter, a ••non-fuel cycle UR operation ... which does not generate l le.(2) byproduct material, is not a milling activity according to the definitions." Letter from Paul H. Lohaus, NRC to Katie Sweeney, NMA (Nov.22.2000) (emphasis
24
GEIS 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.13
3.SFC Processed Uranium Ore Concentrates Primarily For Recovery of Uranium
The third and final element in the definition of 11 e.(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.)14 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, if not removed, could follow the uranium through the process, resulting in out-of­
specification UFc; product. Thus, the purpose for the concentration and purification 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 concentration activities that occurred in the SX circuit at SFC can appropriately be
thought of as a necessary continuation of the milling process.' 5 lmporlanlly, if licensed source
14 The Cotter Concentrates referenced above contained uranium concentrations as high as 27.44%.
15 When considering the classification ofSFC'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 et seq) Subtitle C requirements as a result of the so-called Bevill Amendment, which exempted among other things .. solid waste from the extraction, beneficialion, and processing of ores and minerals" from the definition of hazardous waste. 40 C.F.R. § 26l.4(b)(7).
EPA has concluded that concentration and purification processes constitute beneficiation, not processing as those terms are defined under RCRA Instead of regulating wastes resulting from extraction and beneficiation as Subtitle C ruu.ardous wastes, EPA has indicated that these wastes should be regulated under Subtitle D of RCRA. Id. Under the RCRA scheme, however, processing wastes are treated differently than extraction and beneficiation wastes. Specifically, in June 1991, EPA issued a regulatory
determination, see S6 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. S4 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
The fact that these
milling processes occurred at the SFC facility rather than a 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 26 l .4(b)(7), solid waste from the of ores and minerals, including overburden from the mining of uranium ore, is exempt from regulation as hazardous waste. 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 (and/or autoclaving and/or 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; 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 if not explicitly exempted by UMTRCA, uranium mill tailings are exempt from RCRA Subtitle C regulation under the above definition. U.S. EPA. Re::mur,.:es (Jan. 1995) at 66 ( .. Uranium TRD"). Similarly, SFC's and processes at the facility constitute
under the definition above, thus. wastes resulting from SFC's and processes, like uranium mill tailings. are not subject to regulation as hazardous waste under Subtitle C of RCRA. Uranium TRD at 43-44. Nevertheless, discussed in the following section. the wastes resulting
from the SFC concentration processes radiologically and chemically similar to wastes generated at a uranium mill. We note that under the Bevill Amendment and implementing regulations, wastes resulting from further process following 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 and/or 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 mill in the United States would be sent to the mitr s tailings pond l le.(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 l le.(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 11,
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, SMB-920, NRC Diet. No. 40-6940,
and SMB 1562 NRC Diet. No. 40-9027� Heritage Minerals Inc .. SMB 1541, NRC Dkt. No. 40-
8980.). Therefore, there is ample precedent for differentiating between wastes from different
portions of a 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 1 le.(2) byproduct material is appropriate
primarily because those wastes satisfy the definition of l l .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 I le.(2) byproduct material wastes at the Facility), include 28
the raftinate wastes resulting from processing through the SX process which are similar to
the slimes component of uranium mill tailings. Other I I e.(2) wastes include
contaminated soils from source material concentrate spills, which along with windblown
tailings present in surface soils, are a typical component of l le.(2) wastes at mills,
and any equipment used in the SX processes that cannot be adequately decontaminated.1 For
example, the primary waste stream from the SFC uranium and
17 See conventional
conventional
1971 ).
type
Federal Register
in situ
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
ammoni!l 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 200-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.
wastes from processingprimarily for uranium at a conventional mill are l le.(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
are exempt from RCRA 11 Thus, it is important to recognize that while typical conventional mill
tailings contain large sand fractions from ore crushing, 1 le.(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 CONCENTRATION ANDPURIFICATJONWASTE MATERIALS AS llE.(2) BYPRODUCTMATERIAL
Designating the waste materials from SFC's concentration and purification processes as
l le.(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% of the radionuclide inventory in the
wastes at the SFC facility result from the concentration and purification uranium recovery
processes, •P 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 11 See Memorandwn from Paul H. Lohaus, Chief, Operations Branch, Div. Of Low Level Waste Management and Decommissioning, NRC to NRC UR Licensees at I (March 15, 1989}:
All tailings and wastes included in this definition {of l le.(2) byproduct material], such as process fluids and nonradioactive ore residues, are thus byproduct material. Wastes from 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 uranium recoveiy licensees are not mixed wastes and are not subject to EPA regulation under RCRA.
(Emphasis added).
"Designating the wastes as l le.(2) byproduct material will result in the 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 uranium and thorium spills in soil. raffinate sludges and liners, and c.ontaminants 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 l le.(2) context
31
criteria contained in 10 C.F.R. Part 40, Appendix A. Site cleanup and disposal of the 1 le.(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 of a dispute between the State of Oklahoma and SFC, would be resolved. When the
wastes are designated as l le.(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. �0
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 SD 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 impoundmcnl Typical conventional mill tailings contain huge volumes of water that must be removed to demonstrate 90'/4 compaction so that the Jong tenn covers will not be jeopardized by future differential settlement SFC's proposed approach eff'cctively mirrors waste form considerations such as those in 10 C.F.R Part 61 or in the Envirocare l le.(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 if it finds that the constituent is not capable of posing a substantial present or potential
hazard to human health or the environment.w.1 at Criterion 58(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
at a specific site." at Criterion 5B(6) (emphasis added).
Yet another option is for the licensee to "propose" 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 l le.(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 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 AEA and Criterion 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
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 environment are protected at the potential points of public exposure outside of the boundary under control of the long-tenn governmental custodian. It could also be done by restricting use of the groundwater by covenants or easements that run with the title to the property (e.g., "Drilling of domestic water wells
Footnote continued on next page
governmental custodian. The ability to exclude particular constituents and utilize ACL's or
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 l le.(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 l le.(2) wastes would have to be designed to
permanently isolate the wastes such that maintenance would be unnecessary and to
provide of the control of radiation hazards for l, 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 l le.(2) byproduct material) from the disposal
cell that, when satisfied, EPA has stated unequivocally provides
58 Fed. Reg. 32174 (June 8, 1993). Satisfaction of the 20
pCi/m2/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 of ten (10) lower than the standard.
Finally, the fact that§ 83 ofUMTRCA requires that transfer of l le.(2) byproduct
material and any property necessary for byproduct disposal be accomplished at no cost to the
Footnote continued from previous page
34
government provides additional benefits. First, Criterion 10 assures that adequate funds will be
available for long-term surveillance costs ($250,000 in 1978 dollars or approximately $670,000),
and a negotiated amount of additional funding if any maintenance is expected. Second,
the fact that normally the only long-term funding that is remitted to the government is
solely for surveiJlance should provide additional comfort to the State and the local public
because it indicates that the design requirements for l le.(2) disposal cells are ultra-conservative
and, therefore, provide the necessary that public heath, safety and the
environment wi1l 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 termination
for long-term 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.
VL THE SEPARATE CONVERSION/REDUCTION WASTES COULD, WITH
NRC'S AND DOE'S APPROVAL, BE DISPOSED WITH THE 1 IE.(2)
WASTES UNDER NRC'S NON-llE.(2) DISPOSAL POLICY AND/OR DOE SHOULD TAKE THE NON-llE.(E) WASTES UNDER SECTION 151(B)
OF THE NUCLEAR WASTE POLICY ACT
In addition to providing for long term control and custodianship of the 1 le.{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 11 e.(2) disposal facility is
authorized pursuant to the proposed license amendment, with NRC's and DOE's approval, UF6
wastes and DUF• reduction wastes remaining at the SFC site could be also disposed
of in the 1 le.(2) facility pursuant to NRC's le.(2) Disposal Policy, 60 Fed. Reg. 49,296
(1995) and/or DOE should accept title to and custody of the conversion/reduction non-1 le.(2}
wastes under section lSl(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 1 le.(2)
Wastes Under NRC's Non-1 le.{2} Disposal Policy
Under the current Non-1 le.(2} Disposal Policy,22 NRC may permit non-1 le.(2) waste
containing source material to be disposed in an 1 le.(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-1 le.(2) Policy discussed herein is presently being revisited by the agency in the context ofa new IO C.F.R. Pan 41 rulemaking. Specifically, in the Commission's recently issued Regulatory Issue Summary ("RIS"), it states, among other things, that the NRC staff should remove the prohibition against the disposal of CERCLA. TSCA, and RCRA wastes in l lc.(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 of non-1 le.(2) wastes that can be disposed safely in l le.(2) impoundments. See NRC Regulatory Issue Summary 2000-23 Recent Changes to Uranium Recovery Policy (Nov. JO, 1998), at (http://www.nrc.gov/NRC/GENACT/GC/Rl/2000/ri0002J.htm1).
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-1 le.(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. § 962l(e)(l). 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-1 le.(2) conversion/reduction wastes are physically, chemically,
and radiologically similar to l le.(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 6S% of the non-1 le.(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 RPI Report. approved by EPA Region VI, concludes that there were no RCRA constituents in lhe non-lle.(2) wastes at levels that would cause the wastes to become RCRA characteristic hazardous waste, nor were tl1ere any Footnote continued on next page
37
nearly identical to the concentration and purification wastes. The calcium fluoride sludge waste,
which makes up the remaining 35¾ of the non-1 le.(2) waste, although containing calcium which
is not found in the concentration and purification wastes, is radiologically less active than the
front-end wastes, is even more physically stable, contains less heavy metals, and therefore, will
not result in significant incremental environmental impact when disposed of with the other
wastes. 2◄
This similarity and stability of the materials is significant. Specifically, the criteria for
1 le.(2) disposal facilities set out in Appendix A are designed to provide reasonable assurance
that human health and the environment will be adequately protected from both the radiological
and non-radiological hazards associated with l le.(2) byproduct material. The high degree of
similarity between the SFC conversion/reduction wastes and the SFC l le.(2) byproduct material
ensures that disposal of the conversion/reduction wastes in an I le.(2) disposal facility that
complies with Appendix A will protect human health and the environment with an ample margin
of safety. In short, because the conversion/reduction wastes are so similar to the
concentration/purification 1 le.(2) byproduct material, there will be no significant incremental
impact to human health and the environment resulting from the disposal of conversion/reduction
wastes in an SFC's l le.(2) byproduct material impoundment.
Fourth, again. given the similarity of the conversion/reduction wastes, the fact that they
are less radioactive (particularly with respect to radon emissions) and, in the treated form. are
Footnote continued from previous page
listed ha7.ardous wastes or TSCA wastes present
24 The conversion/reduction wastes will add about 8% to the radionuclide inventory in the disposal celland will contribute about 3% to the peak radon exhalation rate.
38
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-11 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-1 le.(2) material is to be disposed in a licensed
l le.(2) facility must be informed ofNRC's findings and proposed approval to dispose of non-
1 le.(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-1 le.(2) byproduct material along with the l le.(2) byproduct material in an on-site tailings
impoundment underNRC'sNon-1 le.(2) Policy.
B.Section ISI(b) Criteria for DOE To Take Title To and Custody OfConversion/Reduction Wastes Will Be Satisfied
DOE should accept title to and custody of the SFC disposal facility following license
termination where the 1 le.(2) byproduct material and conversion/reduction non-1 le.(2)
byproduct material wastes are disposed on-site because the section l S l(b) criteria will be
satisfied.
As discussed above, under UMTRCA, DOE is required to take title to and custody of
l le.(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 151(b) of the NWPA, DOE has the authority to accept title to and
custody of AEA wastes (including non-1 le.{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 U.S.C. §
1017l(b).25
25 Prior to the adoption of the NWPA, and in conjunction wilh NRC's original non-1 le.(2) policy. DOE indicated to NRC that it would accept title to sites where I le.(2) byproduct material and non-1 le.(2) material were disposed. See S1 Fed. Reg. 20,525, 20,528 (1992). Specifically, DOE indicated th,1t ii would accept tiUe to sites where non• lle.(2) byproduct material was disposed if(l) no adverse environmental impact would result from the disposal. and (2)there are no outstanding environmental compliance issues under RCRA or CERCLA. Id SFC disposal oflheconversion/reduction wastes meets the standards set forth in the original guidance, the current guidance and ifchanged pursuant to the RIS, the new guidance, as well as tl1e standards contained in the NWP A.
40
UMTRCA's statutory and regulatory license criteria almost by definition will satisfy the
section ISI(b) criteria at the SFC facility, so DOE should accept title to and custody of the
le.(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 tenninated 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. Funher, 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 l l e.(2) wastes.
Second, SFC will increase the funds transferred to the government under IO C.F.R. Part
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
15 l(b) requirement that the transfer of the le.(2) wastes must be at no cost to the
government.
Finally, since (i) the portions of site necessary for disposal of 1 le.(2) byproduct disposal
represents 77% by volume of the wastes at the site, (ii) the e.(2) material is so to
the 1 le.{2) material and will generate less radon emissions, (iii) the potential risk of public
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 uranium mill tailings
impoundments including the 1000 year design requirement with no maintenance
uranium pursuant to the Appendix A criteria, and (vi) a licensed governmental
NRC requirements include its acceptance and approval of a long-tenn surveillance plan (L TSP) Footnote continued on next page
41
custodian will be present in perpetuity, the final criteria of section 15 l(b) of the NWPA is
satisfied.
Accordingly, factually, legally and policy-wise this represents an appropriate case for
DOE to take title to and custody of non-1 l e.(2) byproduct material wastes under section 151 (b)
oftheNWPA
VII.CONCLUSION
The Commission should classify SFC's concentration and purijicalion wastes as I le.(2)
byproduct material. To the extent that designating the wastes from the concentration and
purification processes as l le.(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 plants/facilities 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., (Wolf Creek
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 Matter of International Uranium (USA) Corp .. slip op. at I 5. 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 "facilitylp/anf'
basis. Notably. only an "informal" opinion premised on a "facilitylplanf' approach was offered
by NRC in the past. SFC notes that the prime focus ofUMTRCA regarding l le.(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 1 le.(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 I le.(2) byproduct
material.
For the foregoing reasons, the NRC should approve an amendment to Source Material
License SUB-1010 to authorize the handling and disposal of byproduct material. Such an
amendment will permit SFC to. dispose of77% 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 l le.(2) byproduct material paves the way for disposal of the non-1 le.(2) AEA wastes at the
site under NRC's Non-1 le.(2) Policy and/or section 15 l(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
Ml!mll
Soila >-40 �pl.J/pt
Buildinp, Equipmm, Concrde
Calcium fluoride Sludp
CaF2 Buin Clay Linen
RalinaiteSludp
ScnpMNI
Pond21leeidual
Solid w ... Burials
PCIIIII l Spoils Pile
'-im SailaStonlllc.tl
Pond JE and 4 Clay Liner
Clarifm Clay Linen
DnalMICd Contaminllcd Tiuh121
� Dnuns (c:nllhcd)
Sanitary Lqoan Sludp
Sanitary Lqoan Soil
Chipped Pallets
Emergency Bain Scdimmt
Emcrpnc:yBlsinSoil
NCll1h Oil.ch Scdimcn1
North Oil.ch Soil
TOIIII
% 11.c.2 Mllerial
Table 1 • Summary ofWute Material Volume and Acthity Estimates
Volwm-tt' fil1!,I Vol!!!9!-nJ .Y.:.9 u-a !Y.-Jl.e.2 Wute 11.e.lW!I!!!
3,574,000 9()'lf, I 3,216,600 44.1 40.3
1,0I0,4'' ,O'lf, I 540,227 16.4 1.2
625,280 0%1 0 4.67 0
95,215 0%1 0 0.06 0
1,000,000 100%4 1,000,000 31.3 31.3
100,000 SO% i 50,000 0.1, 0.01
749,000 100%4 749,000 10.8 10.1
Sl,100 ,O'lf, I 25,S,O 0.61 0.34
437,400 ,oo,.• 437,400 0.ll 0.11
140,950 '°" s 70,47, 2.19 1.45
219,100 100%4 219,100 0.07 0.07
332,400 100%4 332,400 0.47 0.47
6,250 SO% i 3,125 0.38 0.19
2,000 100%6 2,000 0.02 0.02
10,36, 100%1 10,365 1.14 1.14
'6,356 100%1 56,356 0.08 0.08
3,000 100%' 3,000 0 0
14,600 25%1 3,650 0.52 0.13
162,500 2S%1 40,62!l 1.46 0.37
20,770 25%1 5,192 1.41 0.35
87,500 2!l%' 21,875 0.48 0.12
8,768,308 n/a 6,786,940 124.89 104.,2
77% 84%
44
Ra-1260 !!:ll!9 � � l!!ll,g I!!!II !!.t.,! w:!!!!I !!.!:1
0 0 0 0 ,u «1.3
0 0 0 0 16.4 u
.011 0 1.5 0 6.11 0
0 0 0 0 0.06 0
1.00 1.00 145.0 145.0 114.3 114.3
0 0 0 0 0.15 o.oa
1.60 1.6 48.0 48 60.4 60.4
0 0 0 0 0.61 0.4
.OS .05 l.0 1.0 us us
0 0 0 0 2.19 .... ,
0 0 0.l 0.1 0.17 0.17
0.01 0.01 1.2 ).2 1.61 1.61
0 0 0 0 0.38 0.19
0 0 0 0 0.02 0.02
.OJ 0.01 o., o., u, l.6'
0 0 0 0 0.08 O.OI
0 0 0 0 0 0
.12 0.03 4.7 1.17 S.34 133
0 0 0 0 1.46 0.37
0.03 0.01 0.1 0.03 1.54 0.39
0 0 0 0 0.48 0.12
2.83 2.71 202.1 197 329.81 304.21
96% 97% 92%
Notes for Table 1
Note I -This percentage is based on the met 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.
"O" values generally mean radionuclide content is at or slightly above natural background
•
TABLE 2 CONSTITUENT CONCENTRATIONS IN SFC SOILS AND SLUDGES VERSUS MILL TAILINGS
SFC SFC Average Inactive "Typical" Constituent Raffinate Sludae• Soils• U Mill Talllnas" Soll11
Uranium (pCilg) 2,500 -19,200 <0.67 -1,548 38-380 0.75 Ava-8990
Th-230 (pCIIG) 2,930 • 48,200 0.1 -6.4 340-1,000 0.38 Ava -23,030
Ra-226 (pCilg) <14-190 0.1-1.2 340-1,000 1.5 Avg -118
Arsenic luofa) 17.3 -1.350 <10-27.9 0.8-254 6
Barium fuolal 13.9-2.750 26.5 -262 18-3,860 500
cadmium luala\ <0.7 <0.7 • 5.6 0.07 -1.7 o.oa
Chromium fuofa) 15.2-259 5.2-32.7 1-2,030 100
Connar lualn\ 14.8-794 2.6-71.4 3-1 160 20
Iron luala\ 1.060 • 58,000 6 680-45 400 90-213,000 38.000
Lead fua/g) <10 • 515 <10-129 2.5-3,060 10
Mercurv fun/a) 0.02-0.34 <0.01 -0.05 0.001 -109 0.03
Selenium luala\ <10-87.2 <10 0.2 -391 0.2
Silver lualal <0.6-65.5 <0.6 0.03 -3.8 0.1
Vanadium l,.n/a\ <0.6-3,950 10.2 -43.6 80 -3.990 100
Zinc l,.n/a) <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.
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-520/4-82-013-1, "Final Environmental Impact Statement for Remedial Action Standards for Inactive Uranium Processing Sites (40CFR192)", 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
COUNTER CURRENT DECANTATJON (CCD)
SOLVENT EXTRACTION AND STRIPPING
PRECIPITATION AND FILTRATION
TAILINGS, SLIMES, L----;. LIQUID WASTES TO PONDS
..----..i; DRYING
ORE CONCENTRATE PACKAGING AND SHIPPING
FIGURE 2-PROCESS FLOW DIAGRAM
SFC URANIUM ORE CONCENTRATE PURIFICATION
ORE CONCENTRATE
ACID LEACHING
AND CONCENTRATION
SOLVENT ..-------EXTRACTION
STRIPPING
LIQUID WASTES :: (RAFFINATE) TO PONDS
THERMAL DENITRATION
CONCENTRATION
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 (UF 4) to UF6• 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 11e.(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 11e.(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 11 e. 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 11e.(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 1 O 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 (i.e., 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 11 e.(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 bechemically, physically, and radiologically similar to 11 e.(2) byproduct material, it is not material over which NRC has jurisdiction.
2
for its source material content, are not affected by this working definition.2 The small volume of
wastes from these side-stream circuits is normally commingled with the wastes from the other
mineral circuits and are managed as non-AEA material.
Uranium milling, as an activity or set of processes, is described in NUREG-0706, the "Final Generic Environmental Impact Statement on uranium milling" (NRC, 1980) as conventional and
non-conventional recovery processes. NUREG-0706 examined both conventional and non­
conventional uranium recovery processes as licensed activities, in the context of evaluating the
Tailings Pae
��
."i,;ii::
�,y. .. --- -
ii�
-�Ilg --�
Fl8ul!urkl�
�-35Qdillm.Ch10111.IO
---� -- -�
. ·•.-··-. i .· -��{:;Jfi-l
f•-·
Source: Energy Information Administration
Figure 1 Conventional Uranium Milling
... Oril 1:1111\<ffld fromt�mme
Vallow Cake
environmental impacts associated with those activities. Several process stages are involved in conventional milling: the crushing, grinding, and leaching of the ore; followed by chemical
separation, concentration, and drying of the uranium, as shown in Figure 1. As illustrated, all
process stages for conventional milling, from accepting ore; extracting, concentrating, and purifying
2Licensing source material recovery from side-stream processes at facilities other than uranium mills wasexplicitly addressed in the legislative history. UMTRCA does not include the wastes from side-stream production, such as uranium extraction from phosphate processing, because the ore was not "processed primarily for its source material content." Conversely, staff has considered other minerals, such as vanadium, extracted as a side-stream of a uranium mill, as not licensed material; however, the wastes from that side-stream are 11 e.(2) byproduct material because the original ore is processed primarily for its source material content. Rare-earth processing and other facilities, along with the resulting wastes, can be licensed as source material, if the extraction results in a concentration of uranium or thorium above 0.05 weight percent.
3
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 11e.(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 11e.(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 11 e.(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 UP8) 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 U3O8 to UF6. Conventional uranium mills are able to concentrate and purify the U3O8 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 uraniummilling. 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 11 e.(2) byproduct material.
4 Although uranium milling was not performed at Honeywell in the recent past, the staff is determining whetheruranium 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 U3O8 from those facilities and further processed it to remove those impurities
and it produced an acceptable grade of UP8 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 1 O
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.
NRG (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.
NRG (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 1 O 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 low­activity waste at NRG-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 acomprehensive 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, datedMarch 9, 2000. 1 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 (L TR) 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 11e.(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,11 e.(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 isoften developed to broadly address issues, but at the same time, allows some flexibility inimplementation and interpretation. When a material clearly falls completely within the
constraints of a particular legislative or regulatory definition, absent any compellingreasons, 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 11e.(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 anddisposition 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, 11 e.(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 11 e.(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
3.
There are also some differences in the radiological constituents between SFC wastes that are proposed to be 11e.(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 pCi/g of Ra-226, and 580 pCi/gram 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 1 0 CFR Part 40, Appendix A.
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 completedtermination 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 11 e.(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 11e.(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 NRG sites under Section 151(b) of the NWPA. Determining whether DO E'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 NRG 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 staff's 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 1 O 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 NRG. 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 NRG 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-11 e.(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 licensedmaterial. This is considered and integrated into the prevailing laws and regulations, and isa necessary burden that the licensee must bear. NRG assures the licensee's actions are,
at a minimum, adequate to address safety. As the regulator, NRG might impose additionalburdens on the licensee, either intended or unintended, which may or may not enhancethe 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 arenecessary and those which are not. The staff, for example, is generally aware of a rangeof 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 NRG 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 decision­making 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 11e.(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 independentthird 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 11e.(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 clearlydifferent from SFC and 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 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 cellmeeting 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 whetheruranium 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 addressedand 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 SF C'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
May 13, 2001
MEMORANDUM TO: Martin J. Virgilio, Director
Office of Nuclear Material Safety
and Safeguards
FROM: Daniel M. Gillen, Chairman /RA/
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"
________ Isl _____ _Daniel M. Gillen, Chairman
________ Isl ___ _Andrew C. Campbell, Member
______ Isl _____ _Dennis M. Sollenberger, Member
Date: March 8, 2002
2
Purposes
Background
Discussion
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 11 e.(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 151b of the AEA or as an 11e.(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 reportconsiders 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 or waste 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 11 e.(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 N RC 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 11 e.(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 11 e.(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 (GEIS). 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 theGEIS.
•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 sentto Sequoyah.
•The DPV points out that the mix of radionuclides in the Sequoyah wastes are significantlydifferent than those analyzed in the GEIS or by EPA in issuing its uranium milling standards,
and that this difference would need to be addressed in any design of a decommissioning planfor 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 notappear 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 11 e.(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 11e.(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 11e.(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 statespecifically 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 LL W disposalcell 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 thatalthough 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 requirementsof the UF6 conversion process.
•The Draft Commission Paper has not fully addressed the historical background associatedwith the NRG definition of "ore" for classifying wastes as 11e.(2) byproduct material.
•The Draft Commission Paper does not present a position on the intent of UMTRCA, and thepanel 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 11 e.(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 1 O CFR part 40 in contrast to limited experience with
decommissioning under the License Termination Rule (LTR) in Subpart E of 10CFR Part 20.
Further, the Draft 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. 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 UO2 Fuel f Fabrication
Enrichment Light Water Power Reactors
Uranium Mines & Mills
Reprocessing Federal Waste Repository
Figure 1. Graphical representation of uranium fuel cycle taken from NRC's website. The DPVargues
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.
NMSS
NMSS
Can the material reasonably be considered to be 11e.(2) byproduct material?
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 NRG 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 NRG 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 NRG regulations. On several
occasions the staff initiated efforts to do that, but for various reasons, never completed the effort. -3-
-4-
Rd' I . I a 10 oorca const,tuen concen ra ions m t t f . SFC t was es an m, arm d U ·11 t T s
Constituent Sequoyah Title I NRC"model (pCi/g) Raffinate Sludgea 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
11e.(2) byproduct material, there are several other issues to consider
Ooes 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 11e.(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
-5-
Unanticipated consequences of "novel" interpretation of 11 e.(2}
The problem is with decommissioning process
Performance goals
Conclusion