DRC-1995-001001 - 0901a068807b32d2

The Commissioners 1
August 15, 1995 SECY-95-211
FOR: The Commissioners
FROM: James M. Taylor /s/
Executive Director for Operations
SUBJECT: FINAL "REVISED GUIDANCE ON DISPOSAL OF NON-ATOMIC
ENERGY ACT OF 1954, SECTION 11e.(2) BYPRODUCT
MATERIAL IN TAILINGS IMPOUNDMENTS," AND FINAL
"POSITION AND GUIDANCE ON THE USE OF URANIUM MILL
FEED MATERIALS OTHER THAN NATURAL ORES"
PURPOSE:
To obtain Commission approval of two final guidance documents
related to the Uranium Recovery Program (Attachment 1).
BACKGROUND:
Over the past several years, the U.S. Nuclear Regulatory
Commission staff has developed guidance on proposed activities,
other than the normal processing of native uranium ore, at
uranium mills. On August 7, 1991, SECY-91-243 informed the
Commission of the staff’s proposed approach for responding to
applicant requests to dispose of material other than Atomic
Energy Act (AEA) of 1954, Section 11e.(2), byproduct material in
mill tailings impoundments. On January 17, 1992, the staff
provided revisions to the guidance proposed in SECY-91-243, to
address concerns raised by the Commission, in a Staff
Requirements Memorandum (SRM) dated September 20, 1991.
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Contact: Myron Fliegel, NMSS
415-6629
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SECY-91-347, dated October 25, 1991, requested Commission
approval of proposed staff guidance on a related uranium recovery
issue. This guidance defined "ore" to encompass a broad range of
uranium mill feed materials, but included procedures to ensure
that approval of a specific feed material would not be given if
the proposed processing were primarily to permit the disposal of
the feed material in a tailings impoundment.
In an SRM dated December 3, 1991, the Commission directed the
staff to publish the two proposed policy guidance documents in a
single Federal Register notice, for public comment. On April 30,
1992, the Commission approved a Federal Register notice combining
the two guidance documents. The notice was published in the
Federal Register on May 13, 1992, requesting public comment
within 30 days. Additionally, copies of the Federal Register
notice were sent to the U.S. Department of Energy (DOE), the U.S.
Environmental Protection Agency (EPA), Agreement States, and Low-
Level Waste Compacts, for review and comment. The Federal
Register notice (Attachment 2) provides an in-depth discussion of
the issues related to the guidance documents.
There were several requests for extension of the comment period.
Staff assured all such requesters that it would consider comments
received after the end of the comment period, to the extent
practical. Staff received 24 letters, all of which it fully
considered. Comments were received from Federal agencies,
States, industrial groups, NRC licensees, a member of the U.S.
Congress, a law firm, an environmental group, and an individual.
On October 28, 1992, in a separate initiative, an Advance Notice
of Proposed Rulemaking (ANPRM) on 10 CFR Part 40 was published in
the Federal Register (57 FR 48749) for public comment. Two of
the issues identified in the ANPRM were the disposal of
non-11e.(2) waste materials into tailings impoundments and the
use of alternate feed materials (i.e., the issues discussed the
proposed guidance documents published in the Federal Register on
May 13, 1992). Although the ANPRM addressed a much broader range
of issues, some of the comments received related to these two
issues. However, these comments were consistent with comments
received on the May 13, 1992, Federal Register notice. No new
issues were identified, in the ANPRM comments, that would result
in reconsideration of the proposed guidance documents. The
summary, analysis, and response to those comments will be
included in the document, to be published by the Office of
Nuclear Regulatory Research, addressing comments on the ANPRM.
The NRC staff reviewed all the comments received on the proposed
guidance documents and carefully analyzed, categorized, and
grouped them by subject areas. Staff categorized comments, based
on which guidance document was addressed: Category A refers to
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comments on Part A of the guidance document, pertaining to non-
11e.(2) byproduct material; Category B refers to comments on Part
B of the guidance, pertaining to alternate feed materials; and
Category C refers to comments that are applicable to both Parts A
and B. A summary of the comments received and NRC staff
responses are provided in Attachment 3.
In reviewing the comments on the proposed guidance documents, NRC
staff identified 11 subject areas of issues raised by commenters:
six in Category A, four in Category B, and one in Category C.
There was an issue that delayed finalization of the guidance
documents. In an October 1992, mixed waste meeting between NRC,
EPA, and DOE staff, EPA identified potential inconsistencies in
NRC’s interpretation of the definition of source material in
conjunction with the exclusion of source material from the
definition of solid waste in the Resource Conservation and
Recovery Act (RCRA). In making its point, EPA cited the May 13,
1992, Federal Register notice on the disposal of non-11e.(2)
byproduct material. The staff had delayed finalization of the
uranium recovery policy guidance documents, pending resolution of
the source material definition issue. However, the staff has now
decided that these two policy guidance documents can be
finalized, independent of the source material issue, because the
guidance is not dependent on the interpretation of the definition
of source material.
DISCUSSION:
In addition to minor editorial changes, the final "Revised
Guidance on Disposal of Non-Atomic Energy Act of 1954, Section
11e.(2) Byproduct Material in Tailings Impoundments" contains
three changes from the version published in the Federal Register
on May 13, 1992. First, Item 2 of the guidance has been revised
to exclude, from disposal in tailings impoundments, radioactive
material not regulated by NRC or an Agreement State under the
AEA. The guidance published in the Federal Register had excluded
naturally occurring and accelerator-produced radioactive material
(NARM). Several commenters requested a definition of NARM and
pointed out that uranium would likely qualify as NARM. The
change in wording was made, since the intent always was to
preclude disposal of radioactive material not regulated by NRC or
an Agreement State under the AEA. In view of the elimination of
reference to NARM in the guidance, the phrase "non-11e.(2)
byproduct material" has been defined in a more narrow sense. The
second change was that Item 4 of the guidance has been revised to
provide additional specificity to ensure that no RCRA material is
included in non-11e.(2) byproduct material. Finally, Item 9 of
the guidance has been revised to require concurrence and a
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commitment, from either DOE, or the State in which the tailings
impoundment is located, to take title to the site after closure.
The final "Position and Guidance on the Use of Uranium Mill Feed
Materials Other Than Natural Ores" contains two changes to
Item 3b of the guidance, in addition to minor clarifying
editorial changes from the version published in the Federal
Register. First, the licensee certification with regard to RCRA
aspects of the proposed alternate feed material has been
eliminated as unnecessary, since Item 2 requires a licensee
demonstration that the material would not be regulated under
RCRA. The second change is that the licensee certification that
the proposed feed material is to be processed primarily for its
source material content, has been expanded to require licensee
justification.
After Commission approval, the staff plans to publish the final
guidance documents in the Federal Register and to implement the
guidance. A proposed Federal Register notice is provided in
Attachment 4. As proposed in SECY-92-138, and approved by the
Commission on May 13, 1992, the staff used the guidance on
alternate feed materials in approving a license amendment request
from Umetco Minerals Corporation.
RECOMMENDATION:
The staff recommends that the Commission approve the two enclosed
final guidance documents.
COORDINATION:
The Office of the General Counsel has reviewed this paper and has
no legal objection.
These policies have been coordinated with the Agreement States by
letter dated May 14, 1992, which requested the Agreement States
to comment on the policies. The Agreement States’ responses were
varied and did not present a consistent position on the policies.
Their responses are included in the discussion in Attachment 3.
Staff does not believe further coordination with the Agreement
States on the content of the final policies is required since no
significant changes have been made to the policies and Agreement
State comments have been considered. The staff will distribute
copies of the final policies to the Agreement States after these
have been published.
original /s/ Taylor
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James M. Taylor
Executive Director
for Operations
Attachments:
1. Final staff guidance documents
2. May 13, 1992, Federal Register notice
3. NRC staff’s responses to
comments on proposed
guidance documents
4. Proposed Federal Register notice
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1"non-11e.(2) byproduct material" as used here is simply an
encompassing term for source, special nuclear, and 11e.(1)
byproduct materials.
1
FINAL GUIDANCE DOCUMENTS
FINAL REVISED GUIDANCE ON DISPOSAL OF NON-ATOMIC ENERGY ACT OF
1954, SECTION 11e.(2) BYPRODUCT MATERIAL IN TAILINGS IMPOUNDMENTS
1. In reviewing licensee requests for the disposal of wastes
that have radiological characteristics comparable to those of
Atomic Energy Act (AEA) of 1954, Section 11e.(2) byproduct
material [hereafter designated as "11e.(2) byproduct
material"] in tailings impoundments, staff will follow the
guidance set forth below. Since mill tailings impoundments
are already regulated under 10 CFR Part 40, licensing of the
receipt and disposal of such material [hereafter designated
as "non-11e.(2) byproduct material1"] should also be done
under 10 CFR Part 40.
2. Radioactive material not regulated under the AEA shall not be
authorized for disposal in an 11e.(2) byproduct material
impoundment.
3. Special nuclear material and Section 11e.(1) byproduct
material waste should not be considered as candidates for
disposal in a tailings impoundment, without compelling
reasons to the contrary. If staff believes that such
material should be disposed of in a tailings impoundment in a
specific instance, a request for approval by the Commission
should be prepared.
4. The 11e.(2) licensee must demonstrate that the material is
not subject to applicable Resource Conservation and Recovery
Act (RCRA) regulations or other U.S. Environmental Protection
Agency (EPA) standards for hazardous or toxic wastes prior to
disposal. To further ensure that RCRA hazardous waste is not
inadvertently disposed of in mill tailings impoundments, the
11e.(2) licensee also must demonstrate, for waste containing
source material, as defined under the AEA, that the waste
does not also contain material classified as hazardous waste
according to 40 CFR Part 261. In addition, the licensee must
demonstrate that the non-11e.(2) material does not contain
material regulated under other Federal statutes, such as the
Toxic Substances Control Act. Thus, source material
physically mixed with other material, would require
evaluation in accordance with 40 CFR Part 261, or 40 CFR
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Part 761. (These provisions would cover material such as:
characteristically hazardous waste; listed hazardous waste;
and polychlorinated biphenyls.) The demonstration and
testing should follow accepted EPA regulations and protocols.
5. The 11e.(2) licensee must demonstrate that there are no
Comprehensive Environmental Response, Compensation and
Liability Act issues related to the disposal of the non-
11e.(2) byproduct material.
6. The 11e.(2) licensee must demonstrate that there will be no
significant environmental impact from disposing of this
material.
7. The 11e.(2) licensee must demonstrate that the proposed
disposal will not compromise the reclamation of the tailings
impoundment by demonstrating compliance with the reclamation
and closure criteria of Appendix A of 10 CFR Part 40.
8. The 11e.(2) licensee must provide documentation showing
approval by the Regional Low-Level Waste Compact in whose
jurisdiction the waste originates as well as approval by the
Compact in whose jurisdiction the disposal site is located.
9. The Department of Energy (DOE) and the State in which the
tailings impoundment is located, should be informed of the
Nuclear Regulatory Commission findings and proposed action,
with a request to concur within 120 days. A concurrence and
commitment from either DOE or the State to take title to the
tailings impoundment after closure must be received before
granting the license amendment to the 11e.(2) licensee.
10. The mechanism to authorize the disposal of non-11e.(2)
byproduct material in a tailings impoundment is an
amendment to the mill license under 10 CFR Part 40,
authorizing the receipt of the material and its disposal.
Additionally, an exemption to the requirements of 10 CFR
Part 61, under the authority of § 61.6, must be granted.
(If the tailings impoundment is located in an Agreement
State with low-level waste licensing authority, the State
must take appropriate action to exempt the non-11e.(2)
byproduct material from regulation as low-level waste.)
The license amendment and the § 61.6 exemption should be
supported with a staff analysis addressing the issues
discussed in this guidance.
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FINAL POSITION AND GUIDANCE ON THE USE OF URANIUM MILL FEED
MATERIAL OTHER THAN NATURAL ORES
Staff reviewing licensee requests to process alternate feed
material (material other than natural ore) in uranium mills
should follow the guidance presented below. Besides reviewing to
determine compliance with appropriate aspects of Appendix A of 10
CFR Part 40, the staff should also address the following issues:
1. Determination of whether the feed material is ore .
For the tailings and wastes from the proposed processing to
qualify as 11e.(2) byproduct material, the feed material must
qualify as "ore." In determining whether the feed material
is ore, the following definition of ore must be used:
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.
2. Determination of whether the feed material contains hazardous
waste.
If the proposed feed material contains hazardous waste,
listed under subpart D §§ 261.30-33 of 40 CFR (or comparable
RCRA authorized State regulations), it would be subject to
EPA (or State) regulation under RCRA. To avoid the
complexities of NRC/EPA dual regulation, such feed material
will not be approved for processing at a licensed mill. If
the licensee can show that the proposed feed material does
not contain a listed hazardous waste, this issue is resolved.
Feed material exhibiting only a characteristic of hazardous
waste (ignitable, corrosive, reactive, toxic) would not be
regulated as hazardous waste and could therefore be approved
for recycling and extraction of source material. However,
this does not apply to residues from water treatment, so
acceptance of water treatment residues as feed material will
depend on their not containing any hazardous or
characteristic hazardous waste. Staff will consult with EPA
(or the State) before making a determination of whether the
feed material contains hazardous waste.
3. Determination of whether the ore is being processed primarily
for its source-material content.
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For the tailings and waste from the proposed processing to
qualify as 11e.(2) byproduct material, the ore must be
processed primarily for its source-material content. There
is concern that wastes that would have to be disposed of as
radioactive or mixed waste would be proposed for processing
at a uranium mill primarily to be able to dispose of it in
the tailings pile as 11e.(2) byproduct material. In
determining whether the proposed processing is primarily for
the source-material content or for the disposal of waste,
either of the following tests can be used:
a. Co-disposal test: Determine if the feed material would
be approved for disposal in the tailings impoundment
under the "Final Revised Guidance on Disposal of Non-
Atomic Energy Act of 1954, Section 11e.(2) Byproduct
Material in Tailings Impoundments," or revisions or
replacements to that guidance. If the material would be
approved for disposal, it can be concluded that if a mill
operator proposes to process it, the processing is
primarily for the source-material content. The material
would have to be physically and chemically similar to
11e.(2) byproduct material and not be subject to RCRA or
other EPA hazardous-waste regulations, as discussed in
the guidance.
b. Licensee certification and justification test : The
licensee must certify under oath or affirmation that the
feed material is to be processed primarily for the
recovery of uranium and for no other primary purpose.
The licensee must also justify, with reasonable
documentation, the certification. The justification can
be based on financial considerations, the high uranium
content of the feed material, or other grounds. The
determination that the proposed processing is primarily
for the source material content must be made on a case-
specific basis.
If it can be determined, using the aforementioned guidance, that
the proposed feed material meets the definition of ore, that it
will not introduce a hazardous waste not otherwise exempted, and
that the primary purpose of its processing is for its source-
material content, the request can be approved.
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1
U. S. Nuclear Regulatory Commission
Staff Response to Public Comments
on
"Revised Guidance on Disposal of Non-Atomic Energy Act of 1954,
Section 11e.(2) Byproduct Material in Tailings Impoundments"
and
"Position and Guidance on the Use of Uranium Mill Feed Materials
Other Than Natural Ores"
INTRODUCTION
The U. S. Nuclear Regulatory Commission staff developed two
proposed guidance documents: "Revised Guidance on Disposal of
Non-Atomic Energy Act of 1954, Section 11e.(2) Byproduct Material
in Tailings Impoundments"; and "Position and Guidance on the Use
of Uranium Mill Feed Materials Other Than Natural Ores." These
documents and their associated staff analyses (hereafter referred
to as "Staff Analysis") were published in the Federal Register on
May 13, 1992, and public comments were requested on the proposed
guidance.
Twenty-four letters were received in response to the notice.
Comments were received from Federal agencies, States, industrial
groups, NRC licensees, a member of the U.S. Congress, a law firm,
an environmental group, and an individual. As expected, the
comments varied significantly, depending on the affiliation of
the commenter. Several commenters indicated that the proposed
guidance provided too much flexibility, while other commenters
believed that the guidance was too restrictive. Some commenters
supported the guidance, while others thought it needed major
modifications.
All of the comments were carefully reviewed, categorized, and
grouped by subject areas. Comments were categorized based on
which guidance document was addressed: Category A addresses
comments on Part A of the guidance document, pertaining to non-
11e.(2) byproduct material; Category B addresses comments on Part
B of the guidance, pertaining to alternate feed materials; and
Category C addresses comments that are applicable to both Parts A
and B. The following major comment groups were identified:
Category A - Disposal of Non-11e.(2) Byproduct Material
A1. Types of material to be allowed for disposal
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A2. Relation of non-11e.(2) byproduct material to low-level
waste
A3. Mixed waste issues
A4. Transfer of title and custody
A5. Uranium mill tailings impoundments as disposal sites
A6. Other disposal topics
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Category B - Alternate Feed Material
B1. Definition of ore
B2. Mixed waste determination for feed material
B3. Determination that material is to be processed primarily
for source material
B4. Other feed material topics
Category C - General Comments Applicable to Both Guidance
Documents
C1. Comments Applicable to Parts A and B
The comments in categories A, B, and C are summarized and
discussed in the following responses to comments. Included in
each comment topic are: (1) a list of commenters that presented
one or more issues; (2) a summary of the comments and issues
raised by the commenters; (3) discussion and response to the
comments by NRC staff; and (4) any modifications made to the
guidance in response to these comments.
The numbers in parentheses after the name of the commenter were
assigned by the NRC staff during the comment review and refer to
a specific comment.
RESPONSES TO COMMENTS
A1.0 Types of Material to be Allowed for Disposal
A1.1 Commenters
Umetco Minerals Corp. (3-1, 3-2, 3-3, 3-4)
Fuel Cycle Facilities Forum (5-2, 5-3, 5-4, 5-5)
Don & Hiller for Envirocare of Utah, Inc. (6-7)
Colorado Department of Health (9-1)
Office of the Governor, State of Wyoming (11-7)
Rio Algom Mining Corp. (13-1, 13-2)
American Mining Congress (14-5, 14-6, 14-8)
Washington Department of Health (16-2)
Utah Department of Environmental Quality (20-4, 20-5, 21-
4, 21-5)
A1.2 Summary of Issues
Eight commenters expressed opinions on various types of material
that should be authorized for disposal in tailings impoundments.
A mill operator and two industrial groups expressed agreement
that several types of materials identified in the Staff Analysis
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should be permitted in tailings impoundments. Several commenters
opposed aspects of the policy that would either exclude or
severely restrict other types of waste for disposal.
Six commenters expressed opinions on the prohibition of naturally
occurring and accelerator produced (NARM) waste from tailings
impoundments. Wyoming and Utah agreed that NARM wastes should
not be allowed in impoundments. Colorado and Washington, Rio
Algom, and the American Mining Congress (AMC) argued that NARM
wastes and mine wastes should be permitted in tailings
impoundments.
Wyoming agreed with the policy to allow disposal of 11e.(1)
byproduct material (normally considered "byproduct material") or
special nuclear material only when the Commission determines that
there are compelling reasons to do so, while Utah objected to
even the possibility of such disposals.
Rio Algom, Envirocare, and the AMC expressed the opinion that NRC
should more clearly define the materials that would or would not
be allowed to be disposed of in tailings impoundments. They were
primarily concerned with defining and identifying NARM wastes and
differentiating them from mine wastes and other radioactive
wastes that would be permitted in impoundments.
A1.3 Discussion and Response to Comments
NARM wastes: The policy excluded NARM wastes because of concerns
related to NRC’s regulatory authority over those materials and
over sites containing those materials. This was discussed in the
Staff Analysis. To clarify what material will be permitted in
impoundments, rather than define NARM, the policy has been
revised to indicate that only radioactive material regulated by
NRC under the Atomic Energy Act (AEA) will be permitted.
11e.(1) byproduct and special nuclear material : The staff agrees
with Utah that it is unlikely that there would be any
circumstances where it would approve disposing of 11e.(1)
byproduct material or special nuclear material in an 11e.(2)
byproduct material tailings impoundment. Nevertheless, staff
seeks to have the flexibility to allow such a disposal if special
circumstances warrant. In any case this disposal would require
specific Commission approval.
A1.4 Modifications to the Guidance
Item 2 of the guidance has been revised to state that radioactive
material not regulated under the AEA, rather than NARM, shall not
be authorized for disposal in a tailings impoundment.
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A2.0 Relation of Non-11e.(2) Byproduct Material to Low-Level
Waste
A2.1 Commenters
Umetco Minerals Corp. (3-1, 3-2, 3-3, 3-5)
Fuel Cycle Facilities Forum (5-1, 5-2, 5-3, 5-4, 5-6)
Don & Hiller for Envirocare of Utah, Inc. (6-1, 6-8)
Crain, Caton & James for Rhone-Poulenc Inc. (7-1)
Office of the Governor, State of Wyoming (11-5)
Rio Algom Mining Corp. (13-3, 13-4)
American Mining Congress (14-7)
Utah Department of Environmental Quality (20-8, 21-8)
A2.2 Summary of Issues
Seven commenters responded to Item 8 of the guidance in Part A of
the Federal Register notice (FRN), which requires approval of the
disposal by the Regional Low-Level Waste (LLW) Compact in whose
jurisdiction the waste originates, as well as the one where the
disposal site is located. Wyoming and Utah agreed with the
requirement. The Fuel Cycle Facilities Forum supported the
requirement of LLW Compact approval, except for several
categories of waste that both it and Rio Algom contended should
not be subject to such approval, because of their similarity to
11e.(2) byproduct material. Rio Algom expressed the opinion that
LLW Compact approval should not be required when the non-11e.(2)
byproduct material and the impoundment where it is to be disposed
of are owned by the same company.
Rhone-Poulenc opposed the requirement of LLW compact approval as
unnecessary and restrictive, stating that Compacts would have
economic incentives to disapprove such disposals and force such
wastes into their LLW disposal sites.
Envirocare raised several issues related to the Low Level
Radioactive Waste Policy Amendments Act of 1985 (LLRWPAA). It
objected to the language in the Staff Analysis, which did not
clearly state that Compact approval is required by law. It
stated that approval of the Governor of the State in which the
disposal impoundment is located should be required, in addition
to approval by the Compact. It also stated that the guidance
should authorize the State or Compact, in which the impoundment
is located, to charge or collect fees applicable to disposal in a
LLW facility, under the LLRWPAA.
Five commenters responded to Item 10 of the guidance, which
discusses the regulatory mechanism to authorize disposal of non-
11e.(2) byproduct material in tailings impoundments. Umetco, Rio
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Algom, and the Fuel Cycle Facilities Forum supported the position
that an exemption to the requirements of 10 CFR Part 61 be
granted under 10 CFR 61.6. The AMC stated that a joint
10 CFR Part 40 and Part 61 license would be redundant.
Envirocare stated that the guidance should expressly provide for
a hearing to address the propriety of the Part 61 exemption and
other issues that may need to be addressed.
A2.3 Discussions and Response to Comments
LLW Compact approval: As stated in the staff analysis, LLW
Compact approval is required because non-11e.(2) byproduct
material suitable for disposal in an 11e.(2) byproduct material
impoundment would likely be LLW and within the purview of the
States, under the LLRWPAA. The origin of the material (e.g.,
mine waste, secondary process wastes, etc.) is irrelevant to this
issue, unless the material can be shown to meet the definition of
byproduct material under Section 11e.(2) of the AEA. If the
material can be shown to be 11e.(2) byproduct material, it can be
disposed of in a tailings impoundment without meeting the
requirements of this policy. Similarly, ownership of non-11e.(2)
byproduct material is irrelevant to the issue of whether it is
LLW and thus within the purview of LLW Compacts.
We agree that there may be economic incentive for a LLW Compact
not to approve disposal of non-11e.(2) byproduct material in an
impoundment, thus forcing it to the Compact’s LLW facility. In
any event, as discussed above, under the LLRWPAA, the material
would be within the purview of LLW Compacts.
LLRWPAA issues: We agree with Envirocare that the requirement in
the guidance for approval by LLW Compacts stems from the LLRWPAA,
as stated in the staff analysis. Since the guidance is clear on
the requirement, we see no need to revise it or add a statement
tying it to the LLRWPAA. Gubernatorial approval, however, does
not follow from the LLRWPAA and therefore, will not be added to
the guidance. There have been several legislative proposals for
such gubernatorial approvals in recent years; NRC has gone on
record as considering these proposals unnecessary, and they have
not been supported by the U.S. Congress.
The issue of fees and surcharges should be worked out between
owners of non-11e.(2) byproduct material, impoundment operators,
and LLW Compacts. NRC will neither expressly authorize nor
prohibit them. (However, NRC fees and other charges will be
handled similar to that for any other mill license amendment.)
Joint Part 40 and Part 61 license: We agree with the AMC that a
joint Part 40 and Part 61 license would be redundant and do not
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anticipate such a joint license. An exemption to Part 61 (and
to a Part 61 license) will eliminate the need to issue such a
joint license.
Conduct public hearing on Part 61 exemption : We do not agree
that the granting of an exemption to Part 61 under 10 CFR 61.6
should require a mandatory hearing. However, since the mechanism
for authorization of a disposal of non-11e.(2) byproduct material
in a tailings impoundment is an amendment to a Part 40 license
(per Item 10 of the guidance), there would be opportunity for a
hearing, in accordance with 10 CFR 2.1205.
A3.0 Mixed Waste Issues
A3.1 Commenters
Cabot Corp. (4-7, 4-8)
Don & Hiller for Envirocare Inc. (6-3, 6-10)
Colorado Department of Health (9-2, 9-3)
American Mining Congress (14-4)
Texan Department of Health (17-1, 17-2)
Utah Department of Environmental Quality (20-7, 21-7)
Office of Environmental Restoration, U.S. Department of
Energy
(23-4)
A3.2 Summary of Issues
Three commenters responded to Item 5 of the proposed guidance,
which states that the licensee must demonstrate that there are no
Comprehensive Environmental Response Compensation and Liability
Act (CERCLA) issues. Envirocare and Colorado indicated that
meeting the requirement is difficult, if not essentially
impossible. Cabot Corp. requested that NRC clarify its concerns
on this issue.
The AMC, Colorado, and Cabot Corp. recommended that NRC and the
Environmental Protection Agency (EPA) work together to formulate
consistent, non-overlapping mixed waste regulations and cooperate
on the design and review of mixed waste disposal facilities, so
that mixed waste disposal could be allowed in tailings
impoundments. Envirocare Inc. recommended that EPA be given the
opportunity to comment on the propriety of the disposal of non-
11e.(2) byproduct material and the propriety of relying upon Part
40, Appendix A for the management of the combined waste
materials.
Four commenters specifically addressed NRC’s guidance in relation
to EPA’s regulations. Texas requested a list of constituents and
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their limiting concentrations (and analytical methods) so
Resource Conservation and Recovery Act (RCRA) waste could be
differentiated from byproduct waste. Texas also stated that the
phrase in Part A, Section 6.1 of the FRN, "...containing
hazardous constituents regulated under RCRA," is ambiguous and
should be replaced by "...containing waste streams classified as
hazardous under RCRA." Utah said there must be a sampling
protocol for incoming shipments, to ensure that no RCRA wastes
were disposed of. The Department of Energy (DOE) was concerned
that the tailings impoundment should not be subject to any of
EPA’s regulations and that there be only one regulator at a site.
A3.3 Discussion and Response to Comments
CERCLA issues: NRC staff realizes that demonstrating that there
are no CERCLA issues related to the proposed disposal could be
difficult. However, the staff’s concern is that sufficient
documentation must exist to provide reasonable assurance that
CERCLA remedial action will not be mandated later at tailings
impoundments. The acceptance of only radioactive non-11e.(2)
byproduct material, regulated under AEA, will assist in providing
that assurance.

Federal inter-agency cooperation : The NRC staff agrees that more
inter-agency coordination with EPA to resolve mixed waste issues
is needed, and NRC will continue to work with EPA, as resources
permit, to resolve significant issues.
Relation to EPA regulations: The guidance is general and is not
intended to provide all implementation details. Guidance exists
in other documents regarding concentration limits and procedures
for sampling and testing.
The phrase in the staff analysis, "...the staff would not approve
co-disposal of non-11e.(2) byproduct material containing
hazardous constituents regulated under RCRA," was intended to
convey the concept that the staff would not approve co-disposal
of non-11e.(2) byproduct material that would bring the tailings
impoundment under the purview of RCRA.
NRC staff considers that the tailings impoundments should not be
subject to any additional EPA regulation as a result of the co-
disposal of non-11e.(2) byproduct material [tailings are already
subject to regulation under 40 CFR Part 192 and other EPA
standards; in addition, tailings are subject to EPA regulation
under Superfund]. Item 4 of the guidance, however, does refer to
RCRA regulations or other EPA standards for hazardous or toxic
wastes. To further ensure that RCRA hazardous waste is not
inadvertently disposed of in mill tailings impoundments, Item 4
has been revised to indicate that the 11e.(2) licensee also must
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demonstrate, for waste containing source material as defined
under the AEA, that the waste does not also contain material
classified as hazardous waste according to 40 CFR Part 261 or
polychlorinated biphenyl according to 40 CFR Part 761. Thus,
source material physically mixed with other constituents, would
require the classification in accordance with 40 CFR Part 261, or
40 CFR Part 761. (These provisions would cover material such as:
characteristic hazardous waste; listed hazardous waste; and
polychlorinated biphenyls.) The demonstration and testing should
follow accepted EPA regulations and protocols.
A3.4 Modifications to the Guidance
Item 4 of the guidance has been revised to provide additional
specificity to ensure that no RCRA material is included in the
non-11e.(2) byproduct material.
A4.0 Transfer of Title and Custody
A4.1 Commenters
Don & Hiller for Envirocare of Utah, Inc. (6-2)
Colorado Department of Health (9-4)
Office of the Governor, State of Wyoming (11-1)
American Mining Congress (14-9)
Washington Department of Health (16-1)
Utah Department of Environmental Quality (20-6, 21-6)
Office of Environmental Restoration, U.S. Department of
Energy (23-1)
A4.2 Summary of Issues
When a mill tailings site owner has completed reclamation and
decommissioning, the licensee must transfer title of the 11e.(2)
byproduct material and the disposal site to DOE or the State
where the site is located. DOE or the State will then become
responsible for the care and maintenance of the site, under the
general license in 10 CFR 40.28. Two commenters expressed doubt
that DOE had authority to accept title to the non-11e.(2)
byproduct material at a disposal site. Envirocare noted that the
discussion in the Staff Analysis cited Section 83 of the AEA as
the authority for the transfer, but that Section 83 only
discusses transfer of 11e.(2) byproduct material. Utah stated
that there are no other statutory requirements for the Federal
government to take long-term custodial care of non-11e.(2)
byproduct material and that doing so may be outside the scope of
the AEA.
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Two States asked for clarification or guidance on the technical
findings that need to be made for DOE to take title to a tailings
impoundment in which non-11e.(2) byproduct material has been
disposed of. Colorado asked for guidance on elements that need
to be addressed, stating that Sections C and D of Paragraph 5,
"Previous Staff Guidance," offered no such details. Washington
asked for clarification of the statement that there be no
groundwater restoration issues and whether this applied only to
non-11e.(2) byproduct material disposal, or to previous (11e.(2)
byproduct material) disposals at the site.
Two commenters expressed opinions on the mechanism to ensure DOE
acceptance, for perpetual custody, of an 11e.(2) byproduct
material site in which non-11e.(2) byproduct material has been
disposed of. Wyoming proposed that the policy continue the
requirement, contained in the previous guidance, that DOE (or the
State in which the site is located) agree in advance to accept
title to the specific site. Alternatively, Wyoming suggested
that the licensee be required to provide financial surety of the
same kind required of an operator of a LLW disposal facility.
The AMC stated that providing DOE with an opportunity to comment
on each proposed action to allow disposal of non-11e.(2)
byproduct material is unnecessary. AMC stated that there are a
number of ways of obtaining generic DOE approval and concurrence
short of requiring specific approval for each license amendment
and suggested that the Chairman of the NRC work out an alternate
approach with the Secretary of Energy.
DOE requested 120 days, rather than the 30 days in Item 9 of the
policy, to comment on a proposed license amendment to allow
disposal of non-11e.(2) byproduct material in an impoundment.
A4.3 Discussion and Response to Comments
Authority for DOE to take title to non-11e.(2) byproduct
material: We agree with Envirocare and Utah that the Uranium
Mill Tailings Radiation Control Act (UMTRCA) (and Section 83 of
the AEA) do not discuss transfer of radioactive material, other
than 11e.(2) byproduct material, to DOE. However, UMTRCA does
not preclude DOE from accepting an 11e.(2) byproduct material
disposal site that also contained other radioactive material.
DOE has agreed to accept custody of such sites, provided that NRC
makes specific findings, as discussed in the Staff Analysis.
Additionally, Section 151 (b) of the Nuclear Waste Policy Act of
1982 authorizes DOE to assume title and custody of low-level
radioactive waste and the land on which it is disposed of. Since
the non-11e.(2) byproduct material that would be allowed to be
disposed of under this policy would be LLW (which is the reason
that approval by LLW Compacts is required), DOE does have
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authority to accept title and custody of an 11e.(2) byproduct
material site in which such non-11e.(2) byproduct material has
been disposed.
Clarification of technical findings : We agree with Colorado that
the discussion in 5. Previous Staff Guidance does not offer
details on the technical elements that need to be addressed to
allow DOE to accept a site with non-11e.(2) byproduct material.
Section 6.2, "Custody and Title Transfer" discusses findings that
NRC must make to satisfy DOE and concludes that those findings
will be satisfied by various technical reviews that are part of
an NRC licensing review process. However, the policy and the
Staff Analysis paper do not, and are not intended to, actually
present guidance on technical elements of those reviews.
The statement related to groundwater restoration issues is in the
context of disposal of non-11e.(2) byproduct material in tailings
impoundments. However, Appendix A of Part 40 requires licensees
to clean up groundwater contamination at 11e.(2) byproduct
material disposal sites irrespective of whether non-11e.(2)
byproduct material is disposed at the site, so the statement on
groundwater restoration issues is valid for all 11e.(2) byproduct
material sites transferred to DOE.
DOE/State approval of disposal: The NRC staff agrees with
Wyoming that an explicit, advance commitment from DOE or the
State, to take title to a tailings impoundment in which non-
11e.(2) byproduct material has been disposed of should be
required, to preclude future problems of title transfer. The
guidance has been revised to include a concurrence by the State
or DOE, within 120 days of the request, to take title to the
impoundment after closure.
A4.4 Modifications to the Guidance
Item 9 of the guidance has been modified to include, within 120
days, a concurrence by DOE or the State in which the tailings
impoundment is located.
A5.0 Tailings Impoundments as Disposal Sites
A5.1 Commenters
Cabot Corp. (4-8)
Don & Hiller for Envirocare of Utah, Inc. (6-5, 6-6)
American Mining Congress (14-2)
U.S. Representative Wayne Owens, Utah (15-1, 15-2, 15-3)
Utah Department of Environmental Quality (20-2, 20-3, 21-
2, 21-3)
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A5.2 Summary of Issues
Three commenters expressed opinions on the technical merits of
disposing of non-11e.(2) byproduct material in tailings
impoundments. Congressman Owens stated that tailings
impoundments were never designed for, and are unsuitable for,
disposal of radioactive waste. In contrast, the AMC stated that
tailings impoundments are among the most attractive places to
dispose of radioactive waste materials similar to uranium
tailings and that the guidance should point out the advantages of
using tailings impoundments for disposal of non-11e.(2) byproduct
material. Cabot Corp. recommended a study of the characteristics
of 11e.(2) byproduct material in impoundments and a comparison to
source material and mixed waste. If the materials are similar,
Cabot recommended that NRC and EPA work together to make
regulatory and legislative changes to allow mixed waste to be
disposed of in tailings impoundments.
Envirocare of Utah raised two concerns related to standards to be
applied to impoundments disposing of non-11e.(2) byproduct
material. Envirocare stated that licensees should be required to
demonstrate that they have the capacity to dispose of all their
existing 11e.(2) byproduct material before being authorized to
dispose of non-11e.(2) byproduct material. Envirocare also
stated that an 11e.(2) byproduct impoundment owner requesting to
dispose of non-11e.(2) byproduct material demonstrate that the
entire impoundment will comply with the current standards in
Part 40, Appendix A. It was Envirocare’s opinion that some older
impoundments either do not comply with current standards or that
NRC has interpreted standards differently for older impoundments.
Congressman Owens expressed general opposition to the use of mill
tailings impoundments for disposal of wastes other than tailings
generated at the site. He stated that the proposed policy
reverses long-standing NRC policy against such disposals at
tailings impoundments. He also stated that the House of
Representatives incorporated a provision, in H.R. 776, that would
prohibit disposal of non-11e.(2) byproduct material at tailings
impoundments, unless the governor of the State agrees to such
disposal.
Utah asked if a mill in "standby" status would be eligible to
receive non-11e.(2) byproduct material. Utah also stated that
such disposal in Utah would require compliance with Utah
facility-siting and land-disposal laws that may be stricter than
uranium regulatory requirements for siting a uranium mill.
A5.3 Discussion and Response to Comments
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Suitability of tailings impoundments for disposals : Staff
disagrees that tailings sites are unsuitable for disposal of
other radioactive wastes. As the Staff Analysis points out,
radioactive waste that would be allowed in tailings impoundments
under the guidance is similar to 11e.(2) byproduct material in
physical characteristics but doesn’t meet the legal definition of
11e.(2) byproduct material. The standards that are applied to
such disposals, (i.e., Appendix A of Part 40), were specifically
written for 11e.(2) byproduct material and are technically valid
for other material with the same characteristics. We agree with
AMC that there are important advantages in disposing of non-
11e.(2) byproduct material in tailings impoundments and discussed
some of them in the Staff Analysis. However, the guidance is
meant only to guide NRC staff in the review of a licensee request
to allow a specific disposal and is therefore not the place for a
general statement on the merits of disposing of non-11e.(2)
byproduct material in tailings impoundments.
We agree with Cabot Corp. that 11e.(2) byproduct material in
tailings impoundments are both radioactive and exhibit hazardous
characteristics; the regulations in Appendix A of Part 40
specifically recognize this dual nature of 11e.(2) byproduct
material. Further, at least some material currently classified
as "mixed waste" is similar in physical and chemical
characteristics to 11e.(2) byproduct material and therefore would
appear, from a technical standpoint , to be candidate material for
disposal in tailings impoundments. However, current legislation
prevents such material from being considered for such disposals.
EPA and NRC have worked and continue to work on issues related to
mixed waste and regulatory difficulties in its disposal.
Standards to be applied: We agree with Envirocare that licensees
should be required to demonstrate the capacity to properly
dispose of existing 11e.(2) byproduct material. That
demonstration would be part of the demonstration required under
Item 7 of the proposed guidance, which requires the licensee to
show compliance with the reclamation and closure criteria of
Appendix A of Part 40. We agree with Envirocare that an
impoundment owner show compliance with the current standards in
Appendix A of Part 40. Again, that demonstration is required
under Item 7. We disagree with Envirocare’s statement that older
impoundments are held to different standards than newer
impoundments. All reclamation plans for tailings impoundments
are evaluated using the same criteria (Appendix A). Although
methodologies to evaluate compliance with Appendix A criteria
have evolved over the years, the Commission has determined that
unless significant health, safety, or environmental concerns are
identified, it is not necessary to re-evaluate previously-
approved reclamation plans.
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Reversal of long-standing NRC policy : Staff disagrees that the
proposed guidance reverses a long-standing policy against using
uranium mill tailings sites for disposal of radioactive materials
other than mill tailings produced at the site. There are two
categories of such material; 11e.(2) byproduct material not
produced at the disposal site and non-11e.(2) byproduct material.
NRC has encouraged the disposal of 11e.(2) byproduct material
produced at in-situ mills into tailings impoundments associated
with conventional mills, to prevent the proliferation of small
disposal sites. Criterion 2 of Part 40, Appendix A specifically
addresses this. As for disposal of non-11e.(2) byproduct
material in tailings impoundments, the subject of the proposed
guidance, NRC has had guidance in place since July 1988. The
proposed guidance is an update of the 1988 guidance and can in no
way be considered a reversal of that guidance.
H.R. 776: NRC believes that requiring gubernatorial approval for
disposal of non-11e.(2) byproduct material in tailings
impoundments would be inappropriate because it would be
detrimental to the development and implementation of national
waste management strategies. NRC staff believes that approval
of the disposal of non-11e.(2) byproduct material by regional LLW
State compacts, rather than by individual States, would best
ensure that neither national nor regional LLW programs are
compromised. This provision was considered by Congress and did
not survive final passage of the Energy Policy Act of 1992.
Eligibility of mills in standby status : Uranium mills in standby
status are prime candidates to receive non-11e.(2) byproduct
material, since their standby status allows them to resume
processing ore. These sites would need to submit a license
amendment request that demonstrated that the site could
accommodate the material without significant effect to health,
safety, or the environment and the site reclamation plan would
need to be revised to address any impacts the additional material
could impose.
State requirements for disposal site : We agree with Utah that
Utah, or any other Agreement State with LLW licensing authority,
could require tailings impoundments to meet State siting and
land-disposal laws, before disposing of non-11e.(2) byproduct
material. NRC, however, would not enforce State regulations at
an NRC licensed site. Additionally, an exemption to LLW disposal
requirements (Item 10. of the guidance) would have to be granted
by the Agreement State in accordance with its regulations.
A5.4 Modifications to the Guidance
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Item 10 of the guidance has been modified to indicate that if the
impoundment is located in an Agreement State with LLW licensing
authority, the exemption of the non-11e.(2) byproduct material
from regulation as LLW must be granted by the State.
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A6.0 Other Disposal Topics
A6.1 Commenters
Cabot Corp. (4-9)
Don & Hiller for Envirocare of Utah, Inc. (6-4, 6-9)
Office of Environmental Restoration, U. S. Department of
Energy (23-2, 23-3)
A6.2 Summary of Issues
Cabot Corp. requested clarification on the level of documentation
a licensee needs to provide in support of a request to dispose of
non-11e.(2) byproduct material in a tailings impoundment.
Envirocare was concerned that the guidance was not adequate to
address the documentation, required of licensees, to demonstrate
that the disposal of non-11e.(2) byproduct material will have no
additional effects on health or the environment. Envirocare
indicated that a detailed environmental analysis would be
required to address the transportation of the non-11e.(2)
byproduct materials, and a new or supplemental environmental
impact statement (EIS) would be needed for the disposal site.
This commenter did not want the guidance to shortcut the National
Environmental Policy Act (NEPA) and wanted any license amendment
or exemption application to be subject to the environmental
protection requirements of 10 CFR Part 51. The commenter also
stated that the guidance may result in a proliferation of Part 61
LLW sites and may increase the number of waste transportation
corridors.
DOE recommended that the guidance specifically preclude disposal
of any materials that would compromise the long-term stability of
any Title II site and also pointed out that the guidance should
not be applied to Title I sites.
A6.3 Discussion and Response to Comments
Licensee documentation: The proposed policy and accompanying
Staff Analysis do not, and are not intended to, provide detailed
technical guidance to licensees proposing to dispose of non-
11e.(2) byproduct material in tailings impoundments. Items 4
through 8 of the proposed guidance identify demonstrations or
documentation that licensees must provide in support of a
proposed non-11e.(2) byproduct disposal but do not provide
technical details. Section 6 of the Staff Analysis contains
general discussions of the demonstrations, but does not actually
present guidance on the technical aspects. Detailed technical
information is available in various NRC documents, including
regulatory guides and technical NUREGs.
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Health and environment: The staff agrees that a license
amendment to allow disposal of non-11e.(2) byproduct material is
subject to environmental review, under Part 51. Any license
amendment requires an environmental report from the licensee
under 10 CFR 51.61 and, under 10 CFR 51.21, an environmental
assessment, unless it meets a criterion for categorical exclusion
(10 CFR 51.22). The environmental review process would identify
impacts from a proposed non-11e.(2) byproduct disposal, including
transportation impacts. Item 6 of the proposed guidance adds an
additional constraint in that it requires that there be no
significant environmental impacts from the proposed disposal.
Proliferation of sites: The staff agrees with Envirocare that
adoption of the proposed guidance will result in additional sites
containing low-level radioactive wastes. However, no new
disposal sites would be created as a result of the proposed
guidance, since existing tailings impoundments would be used for
disposals. In fact, the proposed guidance may result in fewer
radioactive waste disposal sites, since material that might have
been disposed of in a new site or that would take up valuable
space in a LLW disposal facility could be disposed of in an
existing tailings impoundment. Transportation effects will be
addressed in the environmental review; however, most of the
material proposed for disposal in an impoundment would have to be
transported away from its present location, in any event.
Long-term stability: The staff agrees with DOE that disposal of
non-11e.(2) byproduct material that would compromise the long-
term stability of a tailings impoundment should be precluded.
Item 7 of the proposed guidance requires compliance with the
reclamation and closure criteria of Part 40, Appendix A.
Reclamation and closure criteria are contained in Criteria 4 and
6 of Appendix A and include criteria to ensure the stability of
the impoundment and control of the radiological hazards for 1000
years, to the extent achievable, and in any case, for at least
200 years.
Title I sites: The staff agrees with DOE that the proposed
guidance is only intended to apply to currently licensed mill
sites and not the UMTRCA Title I sites, which are, by definition,
abandoned, inactive sites designated for remedial action under
UMTRCA.
B1.0 Definition of Ore
B1.1 Commenters
Umetco Minerals Corp. (3-6)
Cabot Corp. (4-1)
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Fuel Cycle Facilities Forum (5-7)
Crain, Caton & James for Rhone-Poulenc Inc. (7-2)
Bureau of Land Management, U. S. Dept. of the Interior
(10-1)
Office of the Governor, State of Wyoming (11-8)
Allied-Signal Inc. (12-2)
Rio Algom Mining Corp. (13-4, 13-5)
American Mining Congress (14-10)
Utah Department of Environmental Quality (21-10)
B1.2 Summary of Issues
Seven commenters agreed with the definition of ore, as developed
in the Part B guidance. Several pointed out that this definition
would allow secondary process wastes and other material that
contained source material to be recycled. Rio Algom and the
American Mining Congress indicated that mine waste treatment
sludges and a wide variety of other materials should be allowed
to be processed as ore. Cabot Corp. indicated that this policy
would decrease the number of disposal sites.
Two commenters disagreed with the definition of ore: Rhone-
Poulenc stated that it was too restrictive and did not agree with
the recent Kerr-McGee court decision; Utah stated that it was
overbroad and that NRC should define ore in a manner that would
deter waste disposal.
Wyoming indicated that the proposed definition should be
established by rulemaking, to avoid inconsistent definitions
being applied.
B1.3 Discussion and Response to Comments
Definition of ore: The NRC staff agrees that, under the
definition of ore provided in the guidance, materials such as
water treatment sludges containing source material (but not EPA-
regulated hazardous constituents) could be used as feed material
at a uranium mill. The definition does not restrict rare earth
tailings from being processed for uranium or thorium.
On April 27, 1990, the U. S. Court of Appeals (Kerr-McGee
Corporation v. NRC, 903 F2d 1 [D.C. Cir. 1990]) ruled that NRC
improperly interpreted UMTRCA as requiring extraction of thorium
or uranium to be the first, chief, or principal reason for
processing ore brought to a mill. NRC had decided that ore
processed first for its rare earth content and later for thorium
was not 11e.(2) byproduct material, because it had not been
processed "primarily for its source material content." The court
decision pointed out the legislative history of the definition of
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11e.(2) byproduct material and that the word "primarily" has a
range of meanings (as does ore). If off site tailings are
designated as source material, it implies that they may be
categorized as ore. The court concluded that UMTRCA was intended
to bring previously unregulated radioactive end products of the
source material extraction process within the scope of NRC
regulation and to provide for safe stabilization of the mill
tailings.
The NRC staff does not agree that the proposed definition of ore
is overbroad. The definition is consistent with that generally
used in the mineral extraction industry. We agree with Utah that
the definition of ore alone would not preclude sham disposal;
Item 3 of the proposed guidance, which requires a determination
that the processing is primarily for its source material content,
is intended to address that concern.
Rulemaking: Section 4 of Part B of the FRN, "Results of Staff
Analysis," states that the time and resources required for
rulemaking on the definition of ore are not justified, in light
of the number of expected requests for processing of alternate
feed material. As also stated, the staff will include a
definition of ore when amendments to Part 40 are proposed. The
staff considers that the promulgation of the guidance itself will
prevent the application of inconsistent definitions of ore.
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B2.0 Mixed Waste Determination
B2.1 Commenters
Umetco Minerals Corp. (3-7, 3-8, 3-10)
Cabot Corp. (4-2, 4-3)
Fuel Cycle Facilities Forum (5-8, 5-9)
Utah Department of Environmental Quality (21-12)
B2.2 Summary of Issues
Several commenters supported the position that feed materials
exhibiting only a characteristic of hazardous waste would not be
regulated as hazardous waste because of EPA’s exemption for
certain recycling activities. However, Utah questioned the NRC
analysis of recycling and stated that just because a useable
product is extracted from mixed waste does not exempt the
remaining waste from RCRA, unless it is the extracted product
that initially made it RCRA waste.
Cabot Corp. indicated that the phrase "... containing hazardous
constituents, regulated under RCRA ...," in mixed waste
determinations, was ambiguous, and asked for clarification,
especially regarding heavy metals.
Cabot Corp. also suggested that the policy be broadened to allow
disposal of additional classes of secondary materials, such as
hazardous sludges and spent materials. Umetco Minerals and the
Fuel Cycle Facilities Forum indicated that NRC should have the
ability to authorize or deny use of feed material (subject to an
environmental impact evaluation) containing a compound listed in
40 CFR 261.33, but not derived from activities listed as waste
streams under 261.33(a)-(e).
Umetco Minerals agreed that evaluation of other constituents in
alternate feed material is needed.
B2.3 Discussion and Response to Comments
Recycling: NRC disagrees with Utah’s conclusion on recycling.
The interpretation in the Staff Analysis is based on review of
EPA regulations and discussions with EPA staff.
Mixed waste determination : In the Federal regulations, "mixed
waste" refers to material containing both hazardous waste and
source, special nuclear, or by-product material subject to the
AEA. The purpose of Item 2 of the proposed guidance is to ensure
that hazardous waste, subject to EPA regulation, is not disposed
of in a tailings impoundment as a result of processing alternate
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feed material. The discussion in the staff analysis is an
overview of mixed waste issues, but is not intended to be a
detailed technical guidance document. Each proposed request to
process alternate feed materials will be evaluated by the staff,
who may also consult with EPA or State officials on a specific
mixed waste determination. Item 2 of the guidance has been
revised to clarify the hazardous waste determination.
Policy considerations: The proposed policy cannot be any broader
than existing legislation or regulations will allow nor can NRC
expand its authority. The proposed guidance seeks to allow use
of alternate feed material, without resulting in a tailings
impoundment becoming subject to EPA RCRA regulation.
B2.4 Modifications to the Guidance
Item 2 of the guidance has been revised to clarify the hazardous
waste determination.
B3.0 Determination That Processing Is Primarily for Source
Material
B3.1 Commenters
Umetco Minerals Corp. (3-9)
Cabot Corp. (4-4, 4-5, 4-6)
Fuel Cycle Facilities Forum (5-10, 5-11)
Office of the Governor, State of Wyoming (11-3)
American Mining Congress (14-11, 14-12)
Utah Department of Environmental Quality (21-9, 21-11,
21-13)
B3.2 Summary of Issues
Several commenters discussed the basis or need for Item 3 of the
proposed staff guidance and the related issue of "sham disposal."
Cabot Corp. and the Fuel Cycle Facilities Forum argued that "sham
recycling" is mostly a false issue, that NRC should not be
concerned with the motivation of the mill owner/operator, and
should eliminate this from consideration. Umetco Minerals Corp.
supported the approach in the proposed guidance. Utah, however,
believes that it does not protect against sham disposal.
Several commenters questioned the co-disposal test. Cabot Corp.
indicated that the co-disposal test for determining if the ore is
being processed primarily for its source-material content is too
cumbersome and probably requires the licensee to provide costly
documentation and a risk assessment. The commenter also
requested that NRC develop more detailed and specific guidance
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regarding the licensee’s documentation in support of a co-
disposal arrangement. The AMC indicated that the test is
redundant or only minimally helpful.
Several commenters discussed the licensee certification test.
Cabot Corp. recommended that the certification be only that the
material is being accepted for bona fide reclamation of its
uranium or thorium content. Utah stated that the policy should
include licensee documentation, using current RCRA testing
procedures to demonstrate that a proposed feed material is not a
RCRA waste. Utah further indicated that the policy did not
adequately address the potential for sham disposal, because any
licensee could "certify" that the primary purpose of processing
material, once it was received, was to extract uranium. Wyoming
indicated that the test must go beyond a licensee’s declaration
of intent and should address the actual economics of the
transaction. Other commenters stated that financial arrangements
in the acquisition of feed materials are not relevant. AMC
stated that demonstrating a known market and a willing purchaser
for alternative feed is not always possible, but processing is
still desirable and should not be considered "sham recycling."
The Fuel Cycle Facilities Forum pointed out that some recyclers
charge the suppliers of waste to take their material, and this is
not sham recycling.
B3.3 Discussion and Response to Comments
"Sham disposal": As discussed in the Staff Analysis, the
definition of 11e.(2) byproduct material requires that it be
derived from ore processed primarily for its source material
content. The determination discussed in Item 3 of the proposed
guidance is to address that aspect of the definition. If ore is
processed in a uranium mill primarily for its source material
content, it is irrelevant whether the ore would have had to have
been otherwise disposed of if it were not processed.
Co-disposal test: The NRC staff disagrees that the co-disposal
test is redundant or only minimally helpful. The clearest way to
show, beyond any doubt, that proposed feed material would be
processed primarily for its source material content, is to show
that it would be allowed to be disposed of in the tailings
impoundment, in any case. Such a demonstration would dispel any
accusation of "sham disposal." We agree that it may be
cumbersome in some cases and that more detailed guidance would
need to be provided to a licensee choosing to apply this test.
Licensee certification test: We agree that the determination of
whether proposed feed material is RCRA waste should include
demonstrations with documentation. Since Item 2 of the proposed
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guidance requires that licensee demonstration, the certification
with respect to RCRA aspects has been deleted from Item 3. We
agree that a licensee certification may not be sufficient to
prevent sham disposal, but also agree that the economic aspects
may not be able to differentiate between legitimate uranium
processing and sham disposal. We therefore have expanded the
test to require both a licensee certification and justification.
The licensee justification can be based on financial
considerations, on the high uranium content of the ore, or on any
other grounds that the licensee determines will justify that the
proposed processing is primarily for the uranium content of the
material and is not sham disposal. The staff determination of
whether the test is met will be made on a case-specific basis.
B3.4 Modifications to the Guidance
Item 3 of the guidance has been revised to eliminate licensee
certification of RCRA aspects of the proposed feed material and
expanded to include licensee justification that the proposed
processing is primarily for the source material content of the
feed material. The wording of the co-disposal test has been
modified to cite the accompanying guidance on disposal of non-
11e.(2) byproduct material rather than the 1988 guidance or the
SECY document that presented the draft version of the
accompanying guidance.
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B4.0 Other Topics on Alternate Feed Material
B4.1 Commenters
Umetco Mineral Corp. (3-11)
Office of the Governor, State of Wyoming (11-2, 11-6)
Allied-Signal Inc. (12-1)
B4.2 Summary of Issues
Umetco Minerals indicated that the disposal of wastes from
alternate feed material should be permitted on a case-by-case
basis and not be subject to LLW Compact approval, while Wyoming
stated that approval should be obtained.
Wyoming indicated that the guidance should further discuss post-
closure ownership and should require advance commitment from DOE
or the State to take title to the impoundment, for waste
generated as a result of the processing of alternate feed
materials.
Allied-Signal stated that the term "waste" should not be used in
describing alternate feed materials, because of the negative
connotation associated with that term.
B4.3 Discussion and Response to Comments
LLW Compact approval: LLW Compact approval is not required for
disposal of waste, from processing alternate feed material, under
the proposed guidance, since such wastes would not be LLW and
thus not under the purview of Compacts. The purpose of the
proposed guidance is to ensure that processing of alternate feed
materials would only be permitted if the resulting wastes meet
the definition of 11e.(2) byproduct material. Processing of feed
material that would not result in 11e.(2) byproduct material
would not be permitted, under the proposed guidance.
Prior commitment to take title: Prior commitment, by DOE or the
State in which the tailings impoundment is located, to take title
to a disposal site after closure, is not needed. The purpose of
the proposed guidance is to ensure that processing of alternate
feed materials would only be permitted if the resulting wastes
meet the definition of 11e.(2) byproduct material. DOE (or
another Federal agency designated by the President) is required,
under Section 83 of the AEA, to take title to such a site.
Use of the term "waste": We agree that the term "waste" should
not used to describe alternate feed materials. If material can
be used in accordance with the proposed guidance to recover
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source material, it is not waste. However, some material, from
which source material could be recovered, would nevertheless meet
the definition of hazardous or mixed waste, under EPA
regulations. The proposed guidance would not allow such material
to be processed in a licensed mill.
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C1.0 Comments Applicable to Parts A and B
C1.1 Commenters
Utah Chapter Sierra Club (8-1)
Office of the Governor, State of Wyoming (11-4)
American Mining Congress (14-1, 14-3)
Utah Department of Environmental Quality (20-1, 21-1, 21-
14)
John Darke (22-1)
C1.2 Summary of Issues
Two commenters expressed general views related to both of the
guidance documents. The Utah Chapter Sierra Club opposed the use
of tailings impoundments as disposal sites for materials imported
from other locations. The commenter indicated that the problems
found at existing sites should not be increased for the benefit
of the mill owner. Utah indicated that rulemaking, rather than
issuance of guidance, is the appropriate mechanism to institute
the practices discussed in the proposed guidance documents.
John Darke questioned whether the guidance would apply only to
future actions or would also be used to exonerate past actions.
He also asked what written guidance, in each case, did the NRC
use for reviewing and accepting license amendments for such
disposal and processing activities.
There were several specific comments directed at both Part A and
B of the FRN. Wyoming stated that the guidance should more
clearly establish how material is to be characterized and should
require independent testing and verification. AMC objected to
the "definitional" approach to regulation of radioactive material
and stated that NRC should develop broader and more flexible
policies, to allow more material to be disposed in tailings
impoundments.
Utah stated that DOE should sign off on any change in disposal
practices at mills.
C1.3 Discussion and Response to Comments
Use of tailings impoundments : We disagree with the Sierra Club
in that most tailings impoundments are excellent sites for
disposal of high-volume, low-activity radioactive waste.
Rulemaking: The NRC staff does not consider the proposed
guidance, with the possible exception of the definition of ore,
to fall within the scope of rulemaking. The proposed guidance
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provides the staff with procedures for implementing existing
regulations. As stated in the Staff Analysis accompanying Part
B, the staff concluded that the time and resources required for a
separate rulemaking on the definition of ore are not justified,
but that the definition will be added when Part 40 is next
revised.
Applicability of guidance : Although the guidance is intended to
apply to future actions, it draws on, and revises, past and
existing NRC policies and practices. Past NRC actions were taken
under policies and practices in effect at the time they were
taken.
Characterization of material : Both guidance documents require
conclusions that are based on required characterization. The
presentation of technical implementation criteria and other
details related to characterization is beyond the scope of this
guidance.
Scope of guidance: The guidance documents address disposal and
processing of off site material. The basis for limiting the
policy was discussed in the Staff Analyses. NRC must work within
the existing legislative mandates and regulatory framework. The
Staff Analysis in Part A of the FRN discusses the general
position taken by NRC staff.
DOE approval: As noted in Section 6.2 of the Staff Analysis of
Part A of the FRN, there was considerable discussion between NRC
and DOE during the development of the proposed guidance for
disposal of non-11e.(2) byproduct material. Additionally, Item 9
of the guidance has been revised to include a concurrence by the
State or DOE, within 120 days.
Prior commitment, by DOE, to take title to a disposal site that
has processed alternate feed material, is not needed. DOE (or
another Federal agency designated by the President) is required,
under Section 83 of the AEA, to take title to such a site.
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1
NUCLEAR REGULATORY COMMISSION
Uranium Mill Facilities, Notice of Two Guidance Documents:
Final Revised Guidance on Disposal of Non-Atomic Energy Act of
1954,
Section 11e.(2) Byproduct Material in Tailings Impoundments;
Final Position and Guidance on the Use of Uranium Mill Feed
Materials Other Than Natural Ores
AGENCY: Nuclear Regulatory Commission.
ACTION: Notice of final guidance.
SUMMARY: The U.S. Nuclear Regulatory Commission has finalized
two uranium mill licensing guidance documents after consideration
of comments received in response to a request for public comment
in a Federal Register notice published May 13, 1992 (57 FR
20525). Only minor changes were made to the proposed guidance
documents titled, "Revised Guidance on Disposal of Non-Atomic
Energy Act of 1954, Section 11e.(2) Byproduct Material in
Tailings Impoundments" and "Position and Guidance on the Use of
Uranium Mill Feed Materials Other Than Natural Ores."
ADDRESSES: Copies of the comments and the NRC staff responses,
as well as SECY-91-243, can be examined at the Commission’s
Public Document Room at
2120 L Street NW. (lower level), Washington DC.
FOR FURTHER INFORMATION CONTACT: Myron Fliegel, Office of
Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory
Commission, Washington, DC 20555; telephone [phone].
SUPPLEMENTARY INFORMATION:
Final Revised Guidance on Disposal of Non-Atomic Energy Act of
1954,
Section 11e.(2) Byproduct Material in Tailings Impoundments
1. In reviewing licensee requests for the disposal of
wastes that have radiological characteristics comparable to those
of Atomic Energy Act (AEA) of 1954, Section 11e.(2) byproduct
material [hereafter designated as "11e.(2) byproduct material"]
in tailings impoundments, staff will follow the guidance set
forth below. Since mill tailings impoundments are already
regulated under 10 CFR Part 40, licensing of the receipt and
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1"non-11e.(2) byproduct material" as used here is simply an
encompassing term for source, special nuclear, and 11e.(1)
byproduct materials.
2
disposal of such material [hereafter designated as "non-11e.(2)
byproduct material1"] should also be done under 10 CFR Part 40.
2. Radioactive material not regulated under the AEA shall
not be authorized for disposal in an 11e.(2) byproduct material
impoundment.
3. Special nuclear material and Section 11e.(1) byproduct
material waste should not be considered as candidates for
disposal in a tailings impoundment, without compelling reasons to
the contrary. If staff believes that such material should be
disposed of in a tailings impoundment in a specific instance, a
request for approval by the Commission should be prepared.
4. The 11e.(2) licensee must demonstrate that the material
is not subject to applicable Resource Conservation and Recovery
Act (RCRA) regulations or other U.S. Environmental Protection
Agency (EPA) standards for hazardous or toxic wastes prior to
disposal. To further ensure that RCRA hazardous waste is not
inadvertently disposed of in mill tailings impoundments, the
11e.(2) licensee also must demonstrate, for waste containing
source material, as defined under the AEA, that the waste does
not also contain material classified as hazardous waste according
to 40 CFR Part 261. In addition, the licensee must demonstrate
that the non-11e.(2) material does not contain material regulated
under other Federal statutes, such as the Toxic Substances
Control Act. Thus, source material physically mixed with other
material, would require evaluation in accordance with 40 CFR
Part 261, or 40 CFR Part 761. (These provisions would cover
material such as: characteristically hazardous waste; listed
hazardous waste; and polychlorinated biphenyls.) The
demonstration and testing should follow accepted EPA regulations
and protocols.
5. The 11e.(2) licensee must demonstrate that there are no
Comprehensive Environmental Response, Compensation and Liability
Act issues related to the disposal of the non-11e.(2) byproduct
material.
6. The 11e.(2) licensee must demonstrate that there will be
no significant environmental impact from disposing of this
material.
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7. The 11e.(2) licensee must demonstrate that the proposed
disposal will not compromise the reclamation of the tailings
impoundment by demonstrating compliance with the reclamation and
closure criteria of Appendix A of 10 CFR Part 40.
8. The 11e.(2) licensee must provide documentation showing
approval by the Regional Low-Level Waste Compact in whose
jurisdiction the waste originates as well as approval by the
Compact in whose jurisdiction the disposal site is located.
9. The Department of Energy (DOE) and the State in which
the tailings impoundment is located, should be informed of the
Nuclear Regulatory Commission findings and proposed action, with
a request to concur within 120 days. A concurrence and
commitment from either DOE or the State to take title to the
tailings impoundment after closure must be received before
granting the license amendment to the 11e.(2) licensee.
10. The mechanism to authorize the disposal of non-11e.(2)
byproduct material in a tailings impoundment is an amendment to
the mill license under 10 CFR Part 40, authorizing the receipt of
the material and its disposal. Additionally, an exemption to the
requirements of 10 CFR Part 61, under the authority of § 61.6,
must be granted. (If the tailings impoundment is located in an
Agreement State with low-level waste licensing authority, the
State must take appropriate action to exempt the non-11e.(2)
byproduct material from regulation as low-level waste.) The
license amendment and the § 61.6 exemption should be supported
with a staff analysis addressing the issues discussed in this
guidance.
Final Position and Guidance on the Use of Uranium Mill
Feed Material Other Than Natural Ores
Staff reviewing licensee requests to process alternate feed
material (material other than natural ore) in uranium mills
should follow the guidance presented below. Besides reviewing to
determine compliance with appropriate aspects of Appendix A of 10
CFR Part 40, the staff should also address the following issues:
1. Determination of whether the feed material is ore .
For the tailings and wastes from the proposed processing to
qualify as 11e.(2) byproduct material, the feed material must
qualify as "ore." In determining whether the feed material is
ore, the following definition of ore must be used:
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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.
2. Determination of whether the feed material contains
hazardous waste.
If the proposed feed material contains hazardous waste,
listed under subpart D §§ 261.30-33 of 40 CFR (or comparable RCRA
authorized State regulations), it would be subject to EPA (or
State) regulation under RCRA. To avoid the complexities of
NRC/EPA dual regulation, such feed material will not be approved
for processing at a licensed mill. If the licensee can show that
the proposed feed material does not contain a listed hazardous
waste, this issue is resolved.
Feed material exhibiting only a characteristic of hazardous
waste (ignitable, corrosive, reactive, toxic) would not be
regulated as hazardous waste and could therefore be approved for
recycling and extraction of source material. However, this does
not apply to residues from water treatment, so acceptance of such
residues as feed material will depend on their not containing any
hazardous or characteristic hazardous waste. Staff may consult
with EPA (or the State) before making a determination of whether
the feed material contains hazardous waste.
3. Determination of whether the ore is being processed
primarily for its source-material content.
For the tailings and waste from the proposed processing to
qualify as 11e.(2) byproduct material, the ore must be processed
primarily for its source-material content. There is concern that
wastes that would have to be disposed of as radioactive or mixed
waste would be proposed for processing at a uranium mill
primarily to be able to dispose of it in the tailings pile as
11e.(2) byproduct material. In determining whether the proposed
processing is primarily for the source-material content or for
the disposal of waste, either of the following tests can be used:
a. Co-disposal test: Determine if the feed material would
be approved for disposal in the tailings impoundment under the
"Final Revised Guidance on Disposal of Non-Atomic Energy Act of
1954, Section 11e.(2) Byproduct Material in Tailings
Impoundments," or revisions or replacements to that guidance.
If the material would be approved for disposal, it can be
concluded that if a mill operator proposes to process it, the
processing is primarily for the source-material content. The
material would have to be physically and chemically similar to
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11e.(2) byproduct material and not be subject to RCRA or other
EPA hazardous-waste regulations, as discussed in the guidance.
b. Licensee certification and justification test : The
licensee must certify under oath or affirmation that the feed
material is to be processed primarily for the recovery of uranium
and for no other primary purpose. The licensee must also
justify, with reasonable documentation, the certification. The
justification can be based on financial considerations, the high
uranium content of the feed material, or other grounds. The
determination that the proposed processing is primarily for the
source material content must be made on a case-specific basis.
If it can be determined, using the aforementioned guidance,
that the proposed feed material meets the definition of ore, that
it will not introduce a hazardous waste not otherwise exempted,
and that the primary purpose of its processing is for its source-
material content, the request can be approved.
Dated at Rockville, Maryland, this ___th day of August 1995.
For the Nuclear Regulatory Commission.
Joseph J. Holonich, Chief
High-Level Waste and Uranium Recovery
Projects Branch
Division of Waste Management
Office of Nuclear Material Safety
and Safeguards