DRC-2002-001002 - 0901a068807b3275

POLICY ISSUE
(Notation Vote)
June 4, 2002 SECY-02-0095
FOR: The Commissioners
FROM:William D. Travers
Executive Director for Operations
SUBJECT:APPLICABILITY OF SECTION 11e.(2) OF THE ATOMIC ENERGY ACT
TO MATERIAL AT THE SEQUOYAH FUELS CORPORATION
URANIUM CONVERSION FACILITY
PURPOSE:
To request Commission approval that certain Sequoyah Fuels Corporation (SFC) waste can be
classified as Atomic Energy Act, Section 11e.(2) byproduct material.
SUMMARY:
The SFC uranium conversion facility is included in the Site Decommissioning Management Plan
(SDMP) as a result of contamination that occurred during the plant’s operations, which ceased in
1992. In March 1999, SFC submitted a decommissioning plan to remediate the site and terminate
the license in accordance with the restricted release provisions in the 1997 License Termination
Rule (LTR) in 10 CFR 20.1403. In January 2001, SFC formally requested that the staff evaluate
whether a portion of its waste could be considered as 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 11e.(2)
byproduct material, but the staff did not agree with its proposal at that time. This paper discusses
SFC’s most recent request, two options for responding to this
CONTACT:Jim Shepherd, NMSS/DWM
(301)-415-6712
The Commissioners -2-
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.
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 11e.(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 11e.(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 LTR provisions in 10 CFR Part 20, Subpart E. In a letter
dated January 5, 2001, SFC asked the staff to inform it of the applicability of Section 11e.(2) of the
AEA to the waste from the front-end process of the Gore, OK, uranium conversion facility, to
determine if the facility could be decommissioned pursuant to 10 CFR Part 40, Appendix A. If so,
the U.S. Department of Energy (DOE),1 pursuant to Section 202 of Title II of the Uranium Mill
Tailings Radiation Control Act of 1978 (UMTRCA), would be required to assume responsibility
under the general license for requirements in the Long-Term Surveillance Plan (LTSP) after
license termination by the U.S. Nuclear Regulatory Commission (NRC). If the site were
remediated under 10 CFR Part 40, DOE would become the general licensee and provide
assurance that the LTSP is appropriately implemented. SFC argues that the initial processing of
material at the Gore site was equivalent to the processing at a uranium mill (i.e., solvent extraction
of uranium from the feedstock). Therefore, SFC submits, the wastes at the Gore site from the
initial material process should be classified as Section 11e.(2) byproduct material, to be
decommissioned under the criteria in Part 40, Appendix A. SFC has stated that this waste, which
is generally segregated from the waste from the back end of the conversion process, is estimated
to be about 80 percent of the residual radioactive material at the site. SFC further argues that the
staff is more familiar with the decommissioning process in 10 CFR Part 40, Appendix A, and the
LTSPs 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 LTR. 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 LTR 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 11e.(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
The Commissioners -3-
2 OGC has advised the staff that the definitions of uranium milling and 11e.(2) byproduct material are
process-related definitions and not restricted to a particular location of activity nor the physical characteristics of a
material. Although the tailings and waste from the front-end of SFC’s facility can continue to be classified as source
material, this material can also be classified as 11e.(2) byproduct material if the process that took place at the front-end
of SFC’s facility can be considered a continuation of uranium milling. As a result, the front-end wastes could fall under
the legislative and regulatory definitions of two different licensed materials and it would be a policy decision by the
Commission as to whether to classify the front-end wastes as source material or 11e.(2) byproduct material.
3 As stated in NRC’s December 13, 2000, Director’s Decision, although pre-UMTRCA mill tailings may be
chemically, physically, and radiologically similar to 11e.(2) byproduct material, it is not material over which NRC has
jurisdiction.
plants had not been considered as uranium mills and were not contemplated as such by
UMTRCA. OGC has advised the staff that it has reconsidered its position.2
Attachments to this paper provide detailed background information on these matters. Attachment
1 describes the site in a general fashion and also describes two SFC proposals to classify waste
as 11e.(2) byproduct material -- one made in 1993, the other in 2001. The staff’s response to the
1993 proposal is in Attachment 2, a memorandum from J. Taylor, EDO, to the Commission, dated
July 6, 1993. Attachment 3 is a SFC presentation in a June 2000 meeting with the staff. SFC’s
formal request for review on this issue is set forth in a January 5, 2001, letter to NRC (Attachment
4).
The staff believes that the activity at the front-end of the Sequoyah processing was uranium
milling, and thus produced 11e.(2) byproduct material as its wastes. In Attachment 5, “Uranium
Milling Activities at the Sequoyah Fuels Corporation Uranium Conversion Facility,” the staff
discusses in detail why this classification is justified. That attachment contains a plain- language,
working definition of uranium milling, based on the language in UMTRCA and Part 40:
Uranium milling is an activity or set of processes that extracts or concentrates uranium or
thorium from any ore primarily for its source material content, and the resulting tailings or
wastes are 11e.(2) byproduct material.3
The front-end of the Gore facility can reasonably be viewed as a continuation of the milling
process that was started at a licensed uranium mill. Since all wastes from such milling are
11e.(2) byproduct material, a strong argument can be made that the waste from that stage of the
milling process which occurred at the SFC facility can be considered 11e.(2) byproduct material.
In that regard, it should be noted that the staff previously considered all waste at a uranium mill,
including some yellowcake from the milling process, to be 11e.(2) byproduct material, because
the staff had not divided the milling process into its constituent parts to determine precisely at
which stage uranium is no longer being extracted or concentrated from ore. The staff has not
found it necessary to label the feed for each step of the milling process as “ore” as the basis for
classifying the waste from that step as 11e.(2) byproduct material. When yellowcake underwent
additional concentration at the front-end of SFC, it was a continuation of uranium milling, i.e.,
another step in the milling process. Thus, that part of the processing at a conversion facility
fulfills the “extraction or concentration” terms in the definition of 11e.(2) byproduct material.
The Commissioners -4-
4 In a staff requirements memorandum dated August 22, 1989, the Commission directed the staff to develop a
comprehensive strategy for NRC activities to deal with contaminated sites, to achieve closure on decommissioning
issues in a timely manner.
5 By “low-specific activity,” the staff means here “unimportant quantities” or less than 0.05% by weight of
uranium and/or thorium.
The staff has identified two options for responding to SFC’s request: (1) continue with the
previous view and disagree with SFC’s arguments, and continue decommissioning the site under
the LTR; or (2) agree with SFC’s arguments and classify some SFC waste as Section 11e.(2)
byproduct material. SFC has only requested a decision on whether its front-end waste can be
considered to be 11e.(2) byproduct material. Thus, decommissioning under that classification or
under the LTR, on which its current decommissioning plan is based, are the only two options
examined in this paper.
In evaluating these options, the staff has identified a general framework for decision-making
involving complex sites undergoing decommissioning, and specific considerations for the SFC
site under this framework (Attachment 6). The criteria in the framework are based on the
Agency’s four Strategic Plan performance goals. The staff’s evaluation of SFC’s proposal is
based not only on whether there is a valid legal argument that the wastes can be classified as
11e.(2) byproduct material, but also on other important factors, such as protection of public
health and safety, the imposition of unnecessary regulatory burden, and the effect on public
confidence, and agency efficiency.
The need for a broader framework to consider the issues presented in this paper is driven by
significant changes in the external environment since the passage of UMTRCA that affect the
management and disposal of low-activity, long-lived radioactive wastes from contaminated sites.
States and Compacts have been unable to develop new disposal sites under the Low-Level
Radioactive Waste Policy Amendments Act of 1985, and two of the three operating low-level
waste (LLW) sites are limited in the waste that they can accept in this category. As availability of
LLW disposal options has diminished, remediation programs have grown. NRC’s Site
Decommissioning Management Program (SDMP) was established in 1990 and sites in this
program require disposal of hundreds of cubic meters of low-activity material.4 During this same
period, the uranium mining and milling industry has been in decline and the National Mining
Association (NMA), and the mill operators they represent, have been encouraging the greater
use of existing mill tailings impoundments for disposal of contaminated materials from sites
undergoing decommissioning. NMA stated in its September 11, 2001, petition for rulemaking,
that conventional mill tailings impoundments have 20 million metric tons (or approximately 20
million cubic meters) of additional disposal capacity that could be used for other similar wastes.
Several companies that operate Resource Conservation and Recovery Act (RCRA) hazardous
waste facilities in the U.S. have pursued acceptance of low-specific-activity5 radioactive waste
licensed under the AEA, to complement the technologically enhanced naturally occurring
materials they have been accepting. NRC has approved a number of requests for disposal of
unimportant quantities of source materials in such facilities, and several States have included
acceptance criteria for radioactive wastes in the their RCRA permits for such facilities.
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
11e.(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 LTR.
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 LTR, which would be substantially more costly (an
estimated several tens of millions of dollars more than an onsite cell).
Advantages
•This approach is consistent with previous staff position on this issue and may avoid
some controversy by not reconsidering staff positions on 11e.(2) byproduct material.
The Commissioners -6-
•This approach maintains staff’s previous position on 11e.(2) byproduct material by
defining it in terms of the location where processing takes place, viz., a uranium mill
(although the statute makes no reference to where the processing takes place).
•This approach avoids interpretations based on detailed analyses and arguments over
what constitutes “milling,” “ores,” and “extraction or concentration” -- the key terms in the
definition of 11e.(2) byproduct material.
•This approach utilizes SFC’s existing decommissioning plan.
Disadvantages
•SFC does not have a commitment from an independent third party/custodian for
institutional controls as required by 10 CFR 20.1403, and it is not clear that it will ever be
able to obtain such a commitment. No NRC licensee with a privately owned site has
been able to obtain an independent third party/custodian for institutional controls, and
DOE ownership and control of such sites under Section 151(b) is highly uncertain at this
time. The effort to negotiate an MOU with DOE to facilitate such transfers has been
unsuccessful because of DOE plans to transfer this responsibility to DOI.
•Continued delays in SFC acquiring an independent third party/custodian expend SFC’s
limited financial resources needed for decommissioning.
•Continued delays in implementing decommissioning under LTR increase unnecessary
regulatory burden and it might be inefficient for the staff to continue its safety and
environmental reviews with the feasibility of the LTR option so uncertain.
•The staff’s previous position that 11e.(2) byproduct material can only be produced at a
uranium mill unnecessarily limits flexibility provided by the language in UMTRCA.
•If SFC is unable to obtain an independent third party/custodian, or have DOE assume
long-term care responsibilities, SFC contends would need to decommission the site for
unrestricted use under the LTR, which is substantially more costly.
Option 2:Classify Some SFC Waste as Section 11e.(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 11e.(2) of the AEA. Under this option, SFC has stated,
in its January 5, 2001, submittal, that 11e.(2) byproduct material would be disposed of in a 10
CFR Part 40, Appendix A, tailings impoundment at the site. At the completion of remediation,
ownership and control of the 11e.(2) byproduct material cell would be transferred to DOE, under
Title II of UMTRCA.
The Commissioners -7-
6 Although SFC has not indicated which criteria would be used for areas outside of a disposal cell, cleanup of
these areas for unrestricted release might be more efficient if only one set of regulations, either the LTR or Appendix A of
10 CFR Part 40, were used. The LTR would apply to non-11e(2) byproduct material, and Appendix A to the mill tailings.
The release criteria for mill tailings and source material are both protective, but different in their approaches. SFC could
request an exemption from one set of regulations, assuming the exemption criteria would be met.
7 In fact, in SFC’s April 30, 2002, response to 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.
In its proposal, SFC expects that DOE would also agree to assume control of any non-11e.(2)
byproduct material contained in the 11e.(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-11e.(2) byproduct material. The remainder of the site would be released for
unrestricted use under the LTR and/or Appendix A of Part 40.6
SFC has proposed an onsite disposal cell, but classification of front-end wastes as 11e.(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-11e.(2) byproduct materials. Similarly, if the non-
11e.(2) byproduct material at SFC could not be disposed in the tailings impoundment or left as
residual radioactivity under the restricted release provisions of the LTR, 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 11e.(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 LTR.
•The staff position of 11e.(2) byproduct material under this option is more in line with the
language in UMTRCA than the previous staff position that considered mill tailings to be
produced at uranium mills, only.
The Commissioners -8-
8 The staff is currently considering an amendment to authorize SFC to decommission the facility under the
LTR. 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 11e.(2) materials, SFC would need to resolve its
approach for the non-11e.(2) material and DOE’s acceptance of it in the 11e.(2) cell, if necessary.
•NRC and DOE have experience in implementing the Part 40, Appendix A,
decommissioning process. NRC staff expects to be able to review this option more
efficiently.
•DOE’s Office of Environmental Management and Office of the General Counsel have
reviewed the proposal and indicated that DOE does not have any formal position on the
classification issue, and will accept NRC’s designation (see Attachment 7).
•The Cherokee Indian Nation, in a letter sent on April 11, 2002, prefers this option, if
offsite disposal of all of the material is not possible.
•This option gives SFC flexibility in choosing onsite/offsite disposal options by considering
the front-end wastes to be either 11e.(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 11e.(2) to the SFC site, which was focused on the location of the activity (i.e.,
not at a uranium mill) rather than on the milling process and the language of the statute.
•This option is not consistent with the current source material license and would require
SFC to submit a request to amend its license to reclassify a portion of its waste,8 and to
substantially revise its existing Decommissioning Plan and submit it as a reclamation plan
under Part 40. Although there would be an increased burden on the licensee in the
immediate future, SFC considers it to be worth the investment to have a more certain
path for decommissioning.
•The overall approval of the site decommissioning plan may be delayed because the new
license amendment request would offer an opportunity for a hearing to any affected
party. Presently, the identities of parties that may object to an UMTRCA disposal cell
(11e.(2) cell) at the SFC site are not known.
•For onsite disposal of all wastes, SFC would need to obtain approval for disposal of the
non-11e.(2) wastes in an 11e.(2) cell, which is not guaranteed. The staff does not intend
to approve a decommissioning plan which includes an 11e.(2) cell without the non-
11e.(2) material being addressed.9 This would require DOE, the State of Oklahoma,
The Commissioners -9-
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 11e.(2)
byproduct material. Honeywell has not indicated that it would pursue this classification with NRC.
and, potentially, Central LLW Compact approval, in addition to NRC approval.
Alternatively, SFC could propose that non-11e.(2) wastes be disposed offsite (to meet
the unrestricted release criteria in the LTR), attempt to leave the material onsite under
the restricted release provisions of the LTR, and/or provide another acceptable
approach.
•10 CFR Part 40, Appendix A, does not have the public participation requirements of the
LTR. 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 11e.(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 11e.(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 11e.(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.
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 11e.(2)
byproduct material. Thus, no separation-of-function issues are raised by this paper.
RECOMMENDATION:
Both options are legally viable and protective of public health and safety and the environment.
Based on the above considerations, and after weighing the advantages and disadvantages of
the options, the staff recommends that the Commission approve Option 2 -- that SFC front-end
waste can be classified as Section 11e.(2) byproduct material.
/RA by CPaperiello Acting For/
William D. Travers
Executive Director
for Operations
Attachments:
1. Background information
2. Staff memo to Commission on SFC Plan, 1993
3. SFC June 2000 slide proposal to categorize waste as 11e.(2)
4. SFC January 2001 Proposal to classify waste as 11e.(2)
5. Uranium Milling Activities at Sequoyah Fuels Corporation
6. Decision-Making Framework
7. DOE letter re taking over site
8. DPV Panel Report
9. DPV
Attachment 1
BACKGROUND INFORMATION
APPLICABILITY OF SECTION 11e.(2) OF THE ATOMIC ENERGY ACT TO MATERIAL AT
THE SEQUOYAH FUELS CORPORATION URANIUM CONVERSION FACILITY
In 1970, Sequoyah Fuels Corporation (SFC), a subsidiary of Kerr-McGee, began operation of a
facility near Gore, in southeast Oklahoma, to convert uranium oxide to uranium hexafluoride, to
prepare the material for enrichment. In early 1987 a second process was initiated to convert
depleted uranium hexafluoride from the U.S. Department of Energy (DOE) enrichment facilities to
depleted uranium tetrafluoride. In late 1987, ownership of the SFC facility was transferred to a
subsidiary of General Atomics (GA). After an uncontrolled release of nitrous oxide in November,
1992, SFC announced cessation of operations. After a December 1993, Commission meeting
with GA and SFC, the U.S. Nuclear Regulatory Commission (NRC) issued a Demand for
Information requiring information on how the facility would be decommissioned and how those
activities would be funded. SFC responded with its “Preliminary Plan for Completion of
Decommissioning,” dated February 16, 1993. In Section 2.4 of this plan (, SFC stated that certain
activities at the site included the concentration of uranium from yellowcake, thereby resulting in
wastes that meet the definition of 11 e.(2) byproduct material, (i.e., “... any ore processed primarily
for its source material content.”). Therefore, SFC argued, the facility would be more appropriately
decommissioned using the criteria in 10 CFR Part 40, Appendix A, which addresses the regulation
and decommissioning of uranium milling facilities. A July 6, 1993, Memorandum from James
Taylor, Executive Director for Operations, NRC, to the Commission (Attachment 2) addressed
SFC’s argument stating that “... hexafluoride conversion plants had never been considered as
uranium mills, and were not contemplated as such in the Uranium Mill Tailings Radiation Control
Act of 1978.”
In March 1999, SFC submitted a decommissioning plan to remediate the site and terminate the
license in accordance with the 1997 License Termination Rule (LTR) in 10 CFR 20.1403 for
restricted conditions. The plan proposes that all waste would be placed in an on-site disposal
cell, the design of which is based on mill tailings disposal cell criteria in Part 40, Appendix A,
followed by institutional controls to be provided by a party “such as DOE.” To date, however, the
State of Oklahoma, the U.S. Army Corps of Engineers, and the Cherokee Nation have declined
the opportunity to assume responsibility for institutional controls. DOE could accept ownership of
the site under Section 151(b) of the Nuclear Waste Policy Act of 1982, but is exploring the transfer
of its land management responsibilities to another federal agency and is not interested at this time
in proceeding with section 151(b) transfers. No other party has been identified to assume this
responsibility.
Because of perceived uncertainties associated with acquiring and implementing institutional
controls, in June 2000, representatives of SFC made a presentation to the staff (Attachment 3)
again asserting that, because of the similarity of the processing at SFC to that at uranium mills,
much of the waste at SFC (75-80 percent) should be considered byproduct material as defined in
Section 11e.(2) of the Atomic Energy Act. In January 2001, SFC submitted a formal request to
NRC to evaluate this concept (Attachment 4).
Attachment 5
URANIUM MILLING ACTIVITIES
AT SEQUOYAH FUELS CORPORATION
1. INTRODUCTION
Sequoyah Fuels Corporation (SFC) describes previous operations at its Gore, Oklahoma, uranium
conversion facility as: (1) the recovery of uranium by concentration and purification processes;
and (2) the conversion of concentrated and purified uranium ore into uranium hexafluoride (UF6),
or the reduction of depleted uranium tetrafluoride (UF4) to 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 11e.(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 11e.(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.
1 As stated in NRC’s December 13, 2000, Director’s Decision, although pre-UMTRCA mill tailings may be
chemically, physically, and radiologically similar to 11e.(2) byproduct material, it is not material over which NRC has
jurisdiction.
2
With the exception of “byproduct material,” as defined in section 11e. of the [Atomic Energy]
Act, all other terms defined in section 11 of the Act shall have the same meaning when used
in the regulations in this part.
A fundamental, plain-language, working definition of uranium milling can be constructed from the
somewhat circular references contained in the above regulatory definitions:
Uranium milling is an activity or series of processes that extracts or concentrates uranium
or thorium from any ore primarily for its source material content, and the resulting tailings or
wastes are 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 10 CFR 40.4 as:
“Source material means: (1) Uranium or thorium, or any combination thereof, in any
physical or chemical form or (2) ores which contain by weight one-twentieth of one percent
(0.05%) or more of: (i) Uranium, (ii) thorium or (iii) any combination thereof. Source material
does not include special nuclear material.”
Ore is not defined in the uranium milling regulations nor its enabling legislation. The common-use
definitions of ore, as defined in Webster’s Ninth New Collegiate Dictionary, are: (1) a mineral
containing valuable constituent (as metal) for which it is mined and worked; (2) a source from
which valuable matter is extracted. For the purposes of alternate feed at licensed conventional
uranium mills, the staff developed the following working definition of ore (NRC, 2000):
“Ore is a natural or native material that may be mined and treated for the extraction of any
of its constituents or any other matter for which source material is extracted in a licensed
uranium or thorium mill.”
This working definition is consistent with the common-use definition and was constructed with a
limitation on where the activity occurred (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 11e.(2) byproduct material. Side-stream
process circuits at mineral processing facilities, which are licensed because they extract uranium
2Licensing source material recovery from side-stream processes at facilities other than uranium mills was
explicitly 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 11e.(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
Figure 1 Conventional Uranium Milling
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
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
4
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 11e.(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 11e.(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
3 The classification and management of wastes as 11e.(2) byproduct material are uniquely limited to uranium
milling. Other fuel-cycle processes that concentrate or purify uranium, such as during conversion, enrichment, or fuel
manufacturing, would not meet the legislative constraints of milling and the resulting wastes would not meet the
classification of 11e.(2) byproduct material.
4 Although uranium milling was not performed at Honeywell in the recent past, the staff is determining whether
uranium milling was ever performed at the facility. If so, some wastes could be potentially classified as 11e.(2)
byproduct material. Honeywell has not indicated that it would pursue this classification with NRC.
5
coarser fractions of conventional uranium mill tailings, and may be devoid of the finer fractions,
because the aggressive ore grinding has not occurred. In-situ extraction wastes resemble the finer
fractions of conventional uranium mill tailings, since the leaching occurs underground and the ore
grinding does not occur at all. Similarly, the characteristics from each process step within a
conventional uranium mill will vary among themselves.
Wastes generated during the later concentration and purification stages at a conventional mill (e.g.,
the solvent extraction processes) will have little or no radium composition in the waste stream,
since the radium-bearing fractions are typically removed in the early stages. The distinctiveness of
these later-stage wastes is lost when they are ultimately blended with other waste streams in the
tailings impoundment. If, for some reason, these wastes had been segregated and handled
differently at a conventional uranium mill, they would still have been managed as 11e.(2) byproduct
material, even though their characteristics would be dissimilar to other wastes from earlier process
stages.3
3. SFC INITIAL PROCESSING AS URANIUM MILLING
A reasonable argument can be made, from a technical perspective, that the initial processing
conducted at the SFC facility in Gore, Oklahoma, is merely the completion of the milling process
started at other locations. Uranium milling entails many processing steps, which, as previously
discussed, are not required to occur at a single location, but often do. The later stages at a
conventional mill involve concentrating and purifying the source material, using solvent extraction,
precipitation, and drying processing circuits. These same processes were performed at the front-
end of the SFC facility for the same reason they are conducted in the later stages of the milling
process at a conventional mill.
The source material that is processed at a conventional uranium mill and was processed at the
front-end of the SFC facility are the same chemical form, natural uranium oxide. The later stages
at the SFC facility converted the natural uranium oxide (typically U3O8) 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
6
facility accepted the U3O8 from those facilities and further processed it to remove those impurities
and it produced an acceptable grade of U3O8 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 11e.(2)
byproduct material determinations for the classification of wastes for each stage. Similarly,
uranium milling has, and does, occur at different locations under regulatory oversight without the
construct of individual processing feeds meeting the definition of “ore.” Thus, there is no need to
consider the feed at SFC as ore, because the front-end process at SFC was simply the last step in
the milling activity, which occurred away from a uranium mill, before the material was suitable for
conversion to UF6.
SFC, with the front-end purification process, had been licensed as a conversion facility under 10
CFR Part 40 at the time UMTRCA was enacted. In retrospect, a pure licensing separation
between the front-end purification processes and the remaining conversion processes could have
been made at that time. However, such a distinction would have probably been viewed as
unnecessarily burdensome for the time, given that protection of public safety, the environment, and
the common defense were maintained under the existing license.
4. REFERENCES
DOE (U.S. Department of Energy). 2002. “Draft Site Observational Work Plan for the Green River,
Utah, UMTRA Project Site.” UMTRA Ground Water Project document GJO-2002-290-
TAR, February 2002.
NRC (U.S. Nuclear Regulatory Commission). 1980. NUREG-0706, “Final Generic Environmental
Impact Statement on Uranium Milling,” Project M-25. Office of Nuclear Material Safety and
Safeguards.
NRC (U.S. Nuclear Regulatory Commission). 2000. Regulatory Issue Summary 2000-23, ”Recent
Changes to Uranium Recovery Policy.” Accession Number ML003773008 November
30, 2000.
1 In a staff requirements memorandum dated August 22, 1989, the Commission directed the staff to develop a
comprehensive strategy for NRC activities to deal with contaminated sites, to achieve closure on decommissioning
issues in a timely manner.
2 The Jurisdictional Working Group was formed in response to the Commission’s SRM on SECY-99-259, dated
March 9, 2000.
1 Attachment 6
DECISION-MAKING FRAMEWORK
1. BACKGROUND
Since the passage of the Uranium Mill Tailings Radiation Control Act (UMTRCA) of 1978,
decommissioning and waste disposal programs have significantly changed. States and Compacts
had at one time planned on developing a dozen new low-level radioactive waste disposal sites,
but have been unable to develop any new regional disposal capacity under the Low-Level Waste
Policy Act of 1980. As a result, future disposal options are uncertain. Costs for conventional low-
level radioactive waste (LLW) disposal have increased by more than a factor of 10 as disposal
options have become more limited. At the same time, there are now large programs for
remediating contaminated sites, including the Nuclear Regulatory Commission’s (NRC) Site
Decommissioning Management Program (SDMP).1 These programs have of millions of cubic
meters of radioactive waste that required isolation and/or disposal. For comparison, much of the
wastes from these sites, that are contaminated by uranium and thorium, would be classified as
very low-level waste if the wastes were under the purview of the European Community.
With the small number low-level radioactive waste (LLW) disposal facilities and the high costs of
disposal, generators have pursued other options. Several Resource Conservation and Recovery
Act (RCRA) hazardous waste facilities are authorized by their State regulatory agencies to accept
very low-activity nuclear fuel cycle waste for disposal and are an option for certain types of low-
activity waste at NRC-licensed sites. NRC has granted approval for disposal at several of these
sites for “unimportant quantities” of source material. The U.S. Army Corps of Engineers (COE), in
implementing the Formerly Utilized Sites Remedial Action Program, has also explored new and
less costly options for disposal of low-activity waste, and continues to use RCRA Subtitle C
facilities. In addition, COE has sent materials to uranium mills as an “alternate feed material” for
natural ores. The materials from a contaminated site, which normally would be considered waste,
are processed in the uranium mill, the residual uranium extracted, and the tailings disposed of in
the existing tailings impoundment. In some cases, waste from contaminated sites have also been
directly disposed of in mill tailings impoundments. With the decline in the uranium mining and
milling business over the last two decades, companies with uranium mills, and the National Mining
Association representing these companies, have pursued this business and have asked NRC to
reconsider its policies that govern direct disposal and alternate feed material and allow for the
expanded use of tailings impoundments for disposal of other types of materials.
NRC has been aware of these changes in the external environment and the need for revising its
regulatory program. The rulemaking on transfer of “unimportant quantities” of source material will
address transfers for disposal of these materials and clarify NRC’s expectations for such
disposals. NRC’s Jurisdictional Working Group,2 consisting of representatives from Federal
agencies with responsibilities for low-activity materials and the Organization of Agreement States
2
and Conference of Radiological Control Program Directors, is examining methods for more
rationally addressing risk management of low-end materials, particularly technologically enhanced
naturally occurring radioactive materials (TENORM) and low-activity source materials. In
November 2000, at the direction of the Commission, the staff issued NRC Regulatory Issue
Summary 2000-23, “Recent Changes to Uranium Recovery Policy,” that provides more flexibility in
allowing non-11e.(2) byproduct material to be disposed of in uranium mill tailings impoundments.
All these changes are informed by the increased use of risk insights. Waste disposal regulations
are often based on the pedigree of the waste (uranium mill; spent fuel; and non-fuel cycle
activities, such as oil drilling, that produce TENORM, etc.) rather than the hazard that wastes
pose. Consideration of risks and alternative means for managing risk have opened up other
options, such as RCRA hazardous waste facilities for low-activity source material.
In 1997, NRC issued its License Termination Rule (LTR) in 10 CFR Part 20, Subpart E. The rule
allows for restricted release of sites under certain conditions. The rule defines conditions for
leaving greater amounts of residual radioactivity on site than for unrestricted release. In practice,
however, no NRC licensee has yet been able to find an independent third party/custodian who
would enforce the institutional control provisions of the rule. In effect, the only options available to
many licensees with sites contaminated with uranium or thorium is to clean up to unrestricted
release levels or to keep their site under a specific license. The U.S. Department of Energy
(DOE) has thus far not been willing to exercise its authority, under section 151(b) of the Nuclear
Waste Policy Act (NWPA) of 1982, to become the long-term custodian for sites desiring restricted
release. DOE does not have similar discretion if the residual radioactivity is 11e.(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.
3 Licensees, of course, may request, and NRC may grant, exemptions to regulations under certain conditions.
However this section, does not address exemptions.
3
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 11e.(2)
byproduct material is discussed.
1.Consistent with law and regulations – Classification of wastes is one of the primary factors
affecting the remediation of contaminated sites. Whether a waste is LLW, TENORM,
11e.(2) byproduct material, or pre-UMTRCA mill tailings determines the set of regulations
that apply for cleanup and disposal, and may have a significant impact on the costs of
remediation, even though these wastes are often similar in their radiological hazards.
Classification of wastes as 11e.(2) byproduct material or some other waste category must
be consistent with existing law and regulations.3 Legislative and regulatory language is
often developed to broadly address issues, but at the same time, allows some flexibility in
implementation and interpretation. When a material clearly falls completely within the
constraints of a particular legislative or regulatory definition, absent any compelling
reasons, the staff does not intend to expend any effort to remove or modify that
4
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 11e.(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 staff’s justification for
classification of front-end SFC wastes as 11e.(2) byproduct material. OGC has concluded
that such a position is consistent with laws and regulations, for the reasons described in
the analysis.
2.Maintain safety, protection of the environment, and the common defense and security –
This factor, like the first, must be met when deciding the proper disposition of a material.
This factor embraces NRC’s regulatory mission over the civilian uses of radioactive
materials such that the proposed disposition must assure protection of public health and
safety, the environment, and the common defense. Ultimately, the classification and
disposition of a material must assure that this factor is adequately achieved.
There are opportunities for more risk-informed management of low-activity materials
containing uranium and/or thorium. Presently, for example, the classification of a material
as 11e.(2) byproduct material or licensable source material often allows for only one
disposal method for each, even though the physical, chemical, and radiological
characteristics, and the resulting risk, may be similar. In some cases, 11e.(2) byproduct
material, source material, TENORM, and other types of LLW could be safely disposed of
in either mill tailings impoundments, LLW disposal facilities, or RCRA Subtitle C, or even
Subtitle D, facilities (for very low concentrations). These facilities use different methods
for managing risk that have been developed consistent with the laws and regulations for
each program. Although the legal definitions may preclude disposal in alternative facilities,
risk considerations may not. Thus, at the request of a licensee, where flexibility is
appropriate and legally allowed for classifying materials, the staff will use that flexibility to
determine whether other types of disposal facilities may be protective.
SFC Considerations: Wastes consisting of yellowcake and materials contaminated with
yellowcake have, since the passage of UMTRCA, been considered to be 11e.(2)
byproduct material at uranium mills and are disposed of in tailings impoundments at mills
[by definition, all wastes generated at a uranium mill are 11e.(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 January 5, 2001, letter from John Ellis, Sequoyah Fuels Corporation, to Larry Camper, NRC, Table 2.
Average concentrations of total 11e.(2) byproduct material at SFC derived from values in tables.
5
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 11e.(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 LTR, 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 LTR provisions rely on reducing the residual
radioactivity at the site to levels that would not result in radiation exposures over 25
mrem/yr and as low as is reasonably achievable with restrictions in place, and 100
mrem/yr or 500 mrem/yr, if restrictions fail. Although these regulations are different, both
can be protective for the SFC wastes. The back-end wastes from the SFC conversion
processes, which will likely be proposed for disposal in the tailings impoundment, are also
expected to be safely isolated, given the requirements of 10 CFR Part 40, Appendix A.
3.Make NRC activities and decisions more effective, efficient, and realistic – There are
several considerations affecting this factor that may arise for a site undergoing cleanup.
They include the following:
•Staff use of established procedures and practices (such as 10 CFR Part 40,
Appendix A) for onsite stabilization, in lieu of developing new or unique ones.
•Staff use of the restricted release provisions of the LTR in 10 CFR Part 20,
Subpart E, which are relatively new and haven’t yet resulted in a completed
termination and require experience in the establishment of procedures and
practices.
6
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 LTR is expected to be problematic. DOE is proposing to transfer its stewardship
responsibilities to another Federal agency, and is therefore unwilling to proceed with a
memorandum of understanding that would define the conditions under which it would
assume responsibility for NRC sites under Section 151(b) of the NWPA. Determining
whether DOE’s successor for stewardship would be willing to take the SFC site is unclear
and will take staff time to resolve. SFC has been unable, to date, to find an organization
willing to accept the independent third party/custodian responsibilities needed to have a
restricted release under the LTR. Thus, Option 1 may not be viable, and it would not be
efficient for NRC staff to continue its review of the current SFC LTR 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 10 CFR Part 40, Appendix A, in Option 2 would provide more
certainty for success and is expected to be more efficient. Staff requested DOE’s opinion
on SFC’s proposal. DOE responded, in a May 2001 letter (Attachment 8), stating that it
does not have any formal position on the issue, leaving classification of the material up to
NRC. DOE acknowledged its statutory responsibilities under section 83 of the Atomic
Energy Act (AEA), as amended by UMTRCA, and requested prior notice, for budget
purposes, if NRC decides that the materials from the front-end process are to be defined
as 11e.(2) byproduct material. DOE did not address whether it would accept non-11e.(2)
byproduct material in the disposal cell. Before the staff could approve a licensing action
for 11e.(2) byproduct material, SFC would need to resolve its approach for the non-11e.(2)
byproduct material.
4.Reduce unnecessary regulatory burden on stakeholders – The licensee is primarily
responsible for determining the safety of an operation and the disposition of its licensed
material. This is considered and integrated into the prevailing laws and regulations, and is
a necessary burden that the licensee must bear. NRC assures the licensee’s actions are,
at a minimum, adequate to address safety. As the regulator, NRC might impose additional
burdens on the licensee, either intended or unintended, which may or may not enhance
the adequacy of safety. The staff should be aware of those burdens when evaluating
proposed alternatives and interpreting legal and regulatory requirements. The staff
should take those burdens into account and discriminate between those that are
necessary and those which are not. The staff, for example, is generally aware of a range
of disposal costs for different types of facilities and is able to approximate the cost of
disposal in consideration of potential economic burdens.
Because licensees are best equipped to determine what the burdens may be, their specific
proposals to NRC for disposal or decommissioning will consider this factor. The staff will
also consider what the burdens might be and, more importantly, not rule out approaches
5 SFC has not provided a cost estimate for an 11e.(2) cell. The staff estimates, based on the cost for a cell
meeting the 10 CFR Part 40, Appendix A, requirements, that SFC would save several tens of millions of dollars with an
onsite remedy.
6 Although uranium milling was not performed at Honeywell in the recent past, the staff is determining whether
uranium milling was ever performed at this facility. If so, some wastes could be potentially be classified as 11e.(2)
byproduct material. Honeywell has not indicated that it would pursue this classification with NRC.
7
that are safe and meet applicable laws and regulations. This is particularly important for
sites such as those where the cost differences between different regulatory approaches
can be so significant.
For any new interpretations or changes from previous staff positions, the staff will also
consider what potential “unintended consequences” might result, so that potential impacts
on previous decisions or future decisions are anticipated and factored into the decision-
making process.
SFC Considerations: SFC thus far has been unable to identify an independent third
party/custodian willing to accept the responsibilities needed to have a restricted release
under the LTR. 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 independent
third party/custodian for the site, to use restricted release provisions of the LTR. 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 11e.(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 clearly
different from SFC and could not be considered for an 11e.(2) byproduct material
classification of their wastes. Once the fuel cycle is beyond natural uranium oxide, and the
conversion processes is initiated, the milling process is clearly completed.
8
5.Increase public confidence – Each site has specific public confidence issues that need to
be considered. Holistically, the staff expects that the public’s confidence in NRC’s
regulatory activities will increase if all the other previous factors are adequately addressed
and communicated to all stakeholders. However, site-specific public issues and concerns
may overtake the importance of some of the other factors in the decision-making.
SFC Considerations: The staff will gain a thorough understanding of the public’s views on
these alternatives when it prepares the EIS and publishes it for public comment. In the
meantime, the staff is aware of several of the views of stakeholders. The State of
Oklahoma is opposed to becoming the third party for enforcing institutional controls for a
license terminated under the restricted release provisions of the LTR. 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 LTR. A few
members of the local public appear to be opposed to any onsite disposal remedy.
In theory, any decision which might facilitate decommissioning and minimize delays would
increase the likelihood of SFC’s successful remediation of the site and termination of its
license. Thus, public confidence could be increased by Option 2 that offers the prospect
for a long-term custodian and a path to completion.
March 8, 2002
MEMORANDUM TO:Martin J. Virgilio, Director
Office of Nuclear Material Safety
and Safeguards
FROM: Daniel M. Gillen, Chairman /RA/
Differing Professional View Panel
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 11e.(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
2
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”
_____________/s/_______________
Daniel M. Gillen, Chairman
_________________/s/___________
Andrew C. Campbell, Member
____________/s/________________
Dennis M. Sollenberger, Member
Date: March 8, 2002
3
Purposes
The purposes of this Ad Hoc Panel were as follows: 1) to review the Differing Professional View
(DPV) on recommendations presented in the Draft Commission Paper on the “Applicability of Section
11e.(2) of the Atomic Energy Act (AEA) to Material at the Sequoyah Fuels Corporation (SFC) Uranium
Conversion Facility,” 2) to review the Draft Commission Paper with respect to the issues raised in the
DPV, and 3) to report to the Director, NMSS on the merits of the positions taken in the DPV with
regard to the recommendations of the Commission Paper.
Background
The SFC uranium conversion facility is one of the sites included in the Site Decommissioning
Management Plan. In 1993, SFC submitted its “Preliminary Plan for Completion of Decommissioning,”
in which it stated that certain activities at the site included the concentration of uranium from yellow
cake. SFC argued that the resulting wastes meet the definition of 11e.(2) byproduct material, and the
site could be remediated under the Uranium Mill Tailings Radiation Control Act of 1978, as amended
(UMTRCA).
In a memorandum to the Commission (July 6, 1993), the NRC Executive Director of Operations, stated
that the Office of the General Counsel had provided an informal view that “the uranium contaminated
decommissioning wastes at Sequoyah Fuels do not fit the definition of 11e.(2) byproduct material and
thus fall outside the coverage of the Act.”
In March 1999, SFC submitted a decommissioning plan to remediate the site and terminate the license
in accordance with the 1997 License Termination Rule (LTR), in 10 CFR 20.1403, for license
termination under restricted conditions.
In January 2001, SFC formally requested that the staff evaluate whether a portion of the SFC waste
could be considered as 11e.(2) byproduct material. The Division of Waste Management Commission
Paper prepared in response to that request discusses two options for responding to the request: (1)
continue with the historical view that would disagree with the SFC arguments, and continue
decommissioning the site under the LTR; or (2) agree with the SFC arguments and classify some SFC
waste as Section 11e.(2) byproduct material. The staff concludes that both options are legally viable,
and ultimately, after discussing the advantages and disadvantages, recommends that the SFC waste
from the front-end of its Gore, Oklahoma operation be considered 11e.(2) byproduct material.
Mr. Fliegel and Mr. Lusher reviewed the Draft Commission Paper and prepared a DPV. They believe
that in reaching its recommendation, the Draft Commission Paper does not adequately discuss the
complex issues involved. They consider that the significance of this decision is whether NRC adheres
to and appropriately follows legislation and regulations governing the remediation of mill tailings sites
and the disposition of 11e.(2) byproduct material. They do not believe there is a significant safety
issue involved. They believe that the staff recommendation in the Draft Commission Paper arbitrarily
reinterprets the fundamental definition of 11e.(2) byproduct material and will create more problems
for the NRC in future site decommissioning activities under both the LTR and UMTRCA.
Discussion
4
Areas of Agreement in the DPV and Draft Commission Paper
Prior to discussing the areas of differing views, it is important to summarize some key areas of
agreement on this issue. The Draft Commission Paper and the DPV both consider the two options
for disposal of the Sequoyah wastes to be technically feasible and provide equivalent health and
safety protection. In addition, the Draft Commission Paper and the DPV both acknowledge that if the
wastes are 11e.(2) material, the Department of Energy (DOE) would be required to take custody of
the disposal area for long term care under the general license in 10 CFR 40.28.
The Draft Commission Paper and the DPV both acknowledge that approximately 20 to 25% of the
wastes are not from the solvent extraction (SX) process and would have to be addressed separately,
including getting prior DOE approval for the material to be disposed of in any SFC 11e.(2) disposal
cell. However, the Commission Paper should state specifically that the termination of the Sequoyah
license ultimately is based on DOE agreeing to take title to source material wastes and provide
perpetual care either as a LLW disposal cell under Section 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 11e.(2) byproduct material. The DPV addresses
three questions about this issue: 1) does the material fit the definition of 11e.(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 11e.(2) byproduct material? This report
considers these questions relevant to the issue, and discusses each of them in the context of what
is discussed in the Draft Commission Paper and the merits of information provided by the DPV.
1. Definition of 11e.(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 11e.(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 11e.(2) byproduct material and
thus fall outside the coverage of the Act.”
The 11e.(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 11e.(2) byproduct material two issues need to be considered: 1) whether
the material was produced by the “extraction or concentration of uranium” and 2) whether the yellow
cake material that was processed at Sequoyah was an “ore.” The panel agrees that these are the key
considerations in assessing this material against the 11e.(2) definition.
5
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 11e.(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.
6
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
11e.(2) byproduct material, as the uranium or thorium would have started out as ore at some uranium
or thorium mill.
The Panel considers that the Draft Commission Paper has not fully addressed the historical
background associated with the NRC definition of “ore” for classifying wastes as 11e.(2) byproduct
material.
2. Intent of UMTRCA
In further responding to the Draft Commission Paper recommendation that the Sequoyah wastes be
considered 11e.(2) material, the DPV discusses UMTRCA and its intended purpose with regard to
byproduct material regulation. The DPV points out that prior to the enactment of UMTRCA, uranium
mill tailings were not regulated under the AEA, because the tailings usually contained less than 0.05
percent uranium and thorium and thus were exempt, under 10 CFR 40.13(a), as unimportant
quantities of source material. Uranium mill tailings did contain sufficient quantities of radium, left from
the processing of the uranium ore, to present a potential radiological hazard. UMTRCA was enacted
to close a regulatory gap by creating the legislative framework to control the radiological hazard of
previously unregulated radioactive material, which it defined in adding Section 11e.(2) to the AEA.
The DPV authors note that, in contrast to uranium mill tailings, the wastes at the Sequoyah facility
were always under NRC regulatory authority as source material. Thus, UMTRCA does not provide
additional protection to the public with respect to the Sequoyah facility wastes nor to source material
wastes at other NRC regulated facilities. The DPV concludes that there is no evidence that Congress
sought to include such material, that was already under NRC regulatory jurisdiction, in the definition
in AEA Section 11e.(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 11e.(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:
7
•The DPV concludes that the radiological characteristics of the Sequoyah wastes are
significantly different from current Title I wastes and the radiological impacts considered in the
GEIS.
•The radiological content of the Sequoyah wastes (in particular the sludge which was
discussed in the DPV) equate to 1.7% source material content for uranium only. This is
higher grade material than was processed to generate the original yellow cake that was sent
to Sequoyah.
•The DPV points out that the mix of radionuclides in the Sequoyah wastes are significantly
different than those analyzed in the 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 plan
for this site. Design issues could include groundwater protection, limiting water infiltration,
and the ingrowth of radium from the high thorium concentration of the wastes during the 1000
year design life of the facility. Radon emanation, which was the focus of UMTRCA, does not
appear to be the major radiological risk to be managed from these wastes.
Although the definition of 11e.(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 11e.(2) may have unanticipated
consequences, both with respect to the Sequoyah facility and to other facilities subject to NRC
regulation. It further points out 1) that there might be other facilities that could, under the
recommended revised interpretation, reclassify some wastes as 11e.(2) byproduct material, and 2)
that the proposed reclassification might have the effect of bringing some wastes that have not been
regulated by NRC, such as from side stream recovery operations at phosphate facilities, under NRC
authority. These possibilities are not discussed in the Draft Commission Paper.
The Panel agrees with the DPV that the proposed Sequoyah proposal and staff recommendation
could leave open the possibility for other facilities in the fuel cycle to make similar arguments for
11e.(2) waste. This issue needs to be considered more fully in the Final Commission Paper.
Other Points of the DPV
The DPV also considers the question of whether the Commission Paper recommendation provides
an easier path to remediating the Sequoyah site, and discusses the two options of the Draft
Commission Paper in light of the performance goals identified in the NRC Strategic Plan. Although
the Panel comments on the path to remediation in its recommendations, it does not consider these
discussions as primary determining factors in answering the question of where to draw the line in
defining 11e.(2) byproduct material, and as such has not addressed these discussions specifically.
8
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 11e.(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 11e.(2), or the particular change in OGC’s position on the
applicability of UMTRCA to the SFC waste.
•Although the Commission Paper acknowledges the need for DOE approval, it should state
specifically 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.
•In discussing extraction/concentration, the Draft Commission Paper does not recognize that
although concentration occurs, the goal at the front end of this conversion facility is primarily
aimed at achieving the specific chemical form needed to match the particular requirements
of the UF6 conversion process.
•The Draft Commission Paper has not fully addressed the historical background associated
with the NRC definition of “ore” for classifying wastes as 11e.(2) byproduct material.
•The Draft Commission Paper does not present a position on the intent of UMTRCA, and the
panel believes that the intent of UMTRCA is an additional factor that should be included in
the Paper for the Commission’s full consideration of this issue.
•The Draft Commission Paper does not address the waste characteristics at the Sequoyah
facility, nor any significance of its differences from typical uranium milling wastes.
9
•The Draft Commission Paper does not address the possible unintended consequences of
its recommendation with regard to other facilities in the fuel cycle making similar arguments
for 11e.(2) waste.
It appears that the impetus for the staff recommendation to define SFC wastes as 11e.(2) byproduct
material primarily is based on concerns about providing for long-term institutional control of the site.
In its proposal, SFC makes a number of arguments dealing with the staff experience with
decommissioning under Appendix A of 10 CFR part 40 in contrast to limited experience with
decommissioning under the License Termination Rule (LTR) in Subpart E of 10CFR Part 20.
Further, the Draft Commission Paper recommends that the Sequoyah facility waste be classified as
11e.(2) byproduct material, because it would result in a well tested and defined process for
decommissioning the site. The panel believes that it may be more appropriate for the staff to seek
ways to ensure the LTR 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 LTR 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.

10
Figure 1. Graphical representation of uranium fuel cycle taken from NRC’s website. The DPV argues
that the definition of 11e(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.
November 9, 2001
MEMORANDUM TO:Melvyn Leach, Chief
Fuel Cycle Licensing Branch
Division of Fuel Cycle Safety & Safeguards, NMSS
FROM:Myron Fliegel /RA/
Senior Project Manager
Fuel Cycle Licensing Branch
Division of Fuel Cycle Safety & Safeguards, NMSS
John Lusher /RA/
Health Physicist
Fuel Cycle Licensing Branch
Division of Fuel Cycle Safety & Safeguards, NMSS
SUBJECT:DIFFERING PROFESSIONAL VIEW ON COMMISSION PAPER TITLED:
APPLICABILITY OF SECTION 11e.(2) OF THE ATOMIC ENERGY ACT
TO MATERIAL AT THE SEQUOYAH FUELS CORPORATION URANIUM
CONVERSION FACILITY”
Please find attached our Differing Professional View (DPV) on the subject Commission Paper. We
request that the DPV be attached to the Commission Paper.
Attachment: DPV
November 9, 2001
DIFFERING PROFESSIONAL VIEW ON COMMISSION PAPER TITLED:
“APPLICABILITY OF SECTION 11e.(2) OF THE ATOMIC ENERGY
ACT TO MATERIAL AT THE SEQUOYAH FUELS CORPORATION
URANIUM CONVERSION FACILITY”
Myron Fliegel
Senior Project Manager
Fuel Cycle Licensing Branch, FCSS, NMSS
John Lusher
Health Physicist
Fuel Cycle Licensing Branch, FCSS, NMSS
We have reviewed the Commission Paper that this Differing Professional View is attached to and
disagree with its recommendation. Furthermore, we believe that the Commission Paper does not
adequately discuss the complex issues involved in reaching its recommendation. We recognize
that the safety significance of the decision on whether to treat the Sequoyah facility wastes as
byproduct material as defined in sec. 11e.(2) of Atomic Energy Act of 1954, as amended (AEA) or
as source material waste, are minimal. The significance of the decision relates more to whether
we adhere to legislation and regulations and follow them appropriately, even if that sometimes
creates problems in the short term. We believe that arbitrarily reinterpreting fundamental
definitions will, in the long term, create more problems.
Can the material reasonably be considered to be 11e.(2) byproduct material?
The first issue that must be addressed is whether the material at the Sequoyah Fuels Corporation
(SFC) facility can reasonably be considered to be 11e.(2) byproduct material. We will address
three aspects of this issue: 1) how well does the material fit the definition of 11e.(2) byproduct
material, 2) how does it comport with the intent of Congress when it enacted the Uranium Mill
Tailings Radiation Control Act of 1978, as amended (UMTRCA), and 3) how do the radiological
characteristics of the material compare with typical 11e.(2) byproduct material.
Definition of 11e.(2) byproduct material
The definition of byproduct material in section 11e.(2) of the AEA is “the tailings or waste
produced by the extraction or concentration of uranium or thorium from any ore processed
primarily for its source material content.” There is no argument that the material in question at
Seguoyah is waste. However, two questions that need to be considered are whether the waste
was produced by the “extraction or concentration” of uranium and whether the material that was
processed at Sequoyah was an “ore.”
The material that was processed at Sequoyah was an impure form of yellow cake, with the
product of the processing being a purer form of yellow cake. The licensee argues that the
process is “concentration” of the yellow cake (and thus of the uranium), is similar to what is done
1 The Commission directed the staff to put the definition in NRC regulations. On several
occasions the staff initiated efforts to do that, but for various reasons, never completed the effort.
-3-
at a uranium mill, and thus meets that aspect of the definition in AEA sec 11e.(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 11e.(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 11e.(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 11e.(2), but that argument
does not withstand scrutiny. While neither the AEA nor NRC regulations define the term “ore,”
and it thus could be broadly construed, its meaning is not unlimited in scope and should be
properly constrained. “Ore,” in the context of the AEA, has been used to refer to material which is
the source of the uranium and/or thorium that is, or can be, used to produce special nuclear
material. The historical view has been that its meaning should be confined to material from which
natural uranium and/or thorium is initially extracted or concentrated, at a uranium or thorium mill
during the milling process. Under this view, "ore" would not include uranium or "yellow cake" that
has already been extracted from the "ore" even if it was further refined (i.e., concentrated and
purified). It follows under this view that the term "ore" should be limited to natural ores and other
materials, such as alternate feed material, that are traditionally used in the milling process to
obtain uranium and thorium for eventual production of special nuclear material.
Furthermore, in a Federal Register notice on May 13, 1992 (57 FR 20525) staff proposed a
definition of the term “ore” to be applied in the definition in AEA section 11e.(2). The definition
proposed was: “ore is a natural or native matter that may be mined and treated for the extraction
of any of its constituents or any other matter from which source material is extracted in a licensed
uranium or thorium mill.” Although the definition has not been codified in NRC regulations,1 it has
been reviewed and approved by the Commission on several occasions since then and has
remained unchanged. The intent of the definition was to allow tailings and wastes from
processing of alternate feed material at a licensed mill to meet the 11e.(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
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mill. Under this view, the ore would be the original ore brought to the mill that supplied the yellow
cake to the Sequoyah facility. The difficulty with this view is similar to that identified above in the
discussion on concentration. That is, any process at any nuclear fuel cycle facility that results in
an increase in the concentration of uranium (or thorium) would have its wastes qualify as 11e.(2)
byproduct material, as the uranium would have started out as ore at some uranium mill.
In sum, a plain reading of the definition in sec. 11e.(2) of the AEA would lead one to conclude that
the wastes at the Sequoyah facility do not meet that definition. Recognizing that the agency has
some latitude in interpreting the AEA and its regulations, it may be helpful to consider the intent of
Congress in creating the definition in sec.11e.(2) of the AEA.
Intent of UMTRCA
The AEA was amended by UMTRCA to include a second definition of byproduct material [sec.
11e.(2)]. The reason for this addition of radioactive material brought under NRC regulatory
authority is discussed Sec. 2.(a), which states “The Congress finds that uranium mill tailings at
active and inactive mill operations may pose a potential and significant radiation health hazard to
the public, and that the protection of the public health...require...the stabilization, disposal,, and
control...of such tailings in order to prevent or minimize radon diffusion into the environment...”
Prior to the enactment of UMTRCA, uranium mill tailings were not regulated under the AEA
because the tailings usually contained less than 0.05 percent uranium and thorium and thus were
exempt, under 10 CFR 40.13(a), as unimportant quantities of source material. Uranium mill
tailings did contain sufficient quantities of radium, left from the processing of the uranium ore, to
present a potential radiological hazard, including that of radon release, if they were not properly
stabilized and controlled. UMTRCA was enacted to close a regulatory gap by creating the
legislative framework to control the radiological hazard of previously unregulated radioactive
material.
In contrast to uranium mill tailings, the wastes at the Sequoyah facility were always under NRC
regulatory authority as source material. UMTRCA did not provide additional protection to the
public with respect to the Sequoyah facility wastes nor to source material wastes at other NRC
regulated facilities. There is no evidence that Congress sought to include such material, that was
already under NRC regulatory jurisdiction, in the definition in AEA sec. 11e.(2).
Radiological characteristics of Sequoyah waste
It is interesting to consider the radiological characteristics of the Sequoyah facility wastes and
compare them to typical uranium mill tailings. In its January 2001 request, SFC included a table
(Table 2, p. 46) listing concentrations of various constituents in the Sequoyah waste and in mill
tailings at inactive (i.e., UMTRCA Title I) mill sites and in soils. The table below contains
radiological information for the wastes at the Sequoyah facility and for Title I tailings, extracted
from the SFC table, and similar information for a “model mill” described in NRC’s Final Generic
Environmental Impact Statement on Uranium Milling, NUREG-0706, 1980.
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Radiological constituent concentrations in SFC wastes and U mill tailings
Constituent
(pCi/g)
Sequoyah
Raffinate Sludgea
Title I
mill tailingsb
NRC “model
mill” tailingsc
Uranium 2500 - 19,200
avg - 8990
38 - 380 39
Th-230 2930 - 48,200
avg - 23,030
340 - 1000 280
Ra-226 <14 - 190
avg - 118
340 - 1000 280
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. 11e.(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 11e.(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
Does this provide an easier path to remediating the site?
The Commission Paper recommends that the Sequoyah facility waste be classified as 11e.(2)
byproduct material because it would “result in a well tested and defined process for
decommissioning the site...” 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 11e.(2) byproduct
material is, at best, weak. If the Commission makes the decision that the wastes are 11e.(2)
byproduct material, the issue is closed within NRC and to stakeholders - unless it is challenged in
Federal Appeals Court. However, if it is challenged in Federal Appeals Court, the weak basis for
classifying the Seqouyah facility wastes as 11e.(2) byproduct material will be examined in detail by
an impartial judiciary. The issues and arguments raised in the first section of this paper, along
with perhaps other issues identified by the parties, will be argued, reviewed, and debated. This
process can take a considerable amount of time. If, at the end of the process, it is decided that
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the Sequoyah facility wastes are not 11e.(2) byproduct material, the decommissioning process will
have to start over again.
Additionally, as the Commission Paper points out, even accepting the licensee’s argument
concerning the classification of the wastes at the Sequoyah facility, a significant amount of waste
would still not be classified as 11e.(2) byproduct material. In its January 5, 2001 submittal, SFC
states that almost a quarter of the waste (23 percent, which amounts to almost 2 million cubic feet)
could not be classified as 11e.(2) byproduct material. This material would have to be disposed of,
either with the 11e.(2) byproduct material as non-11e.(2) byproduct material, or in a separate cell.
For the material to be disposed of as non-11e.(2) byproduct material, the recently updated “Interim
Guidance on Disposal of Non-Atomic Energy Act of 1954, Section 11e.(2) Byproduct Material in
Tailings Impoundments” would be followed. The Commission Paper states that approval from the
State of Oklahoma, the Central Compact, and the Department of Energy (DOE) would be needed,
in addition to NRC approval. It is not clear that such approvals would be readily obtained.
Additionally, the argument in the Commission Paper that the recommended approach would
“result in a well tested and defined process for decommissioning the site...” is predicated on the
assumption that SFC receives the approvals for the non-11e.(2) component of the waste.
However, the non-11e.(2) process is not well tested or defined; indeed the industry has
complained on several occasions about the difficulty of process. Thus, even if NRC agrees to
classifying some of the Sequoyah facility wastes as 11e.(2) byproduct material, decommissioning
the site may be frustrated by the inability to get the necessary approvals for the non-11e.(2)
component of the waste.
The other option identified in the Commission Paper for the non-11e.(2) component of the waste,
is to dispose of it in a separate cell at the site, under the License Termination Rule (LTR).
However, this would bring us back to the problem that classifying some of the waste as 11e.(2)
byproduct material was designed to resolve; i.e., obtaining an institutional control custodian.
In summary, even if some of the waste material at the Sequoyah facility could be reasonably
considered to be 11e.(2) byproduct material, it is problematic whether reclassifying it as such
would result in a more expedient path to site decommissioning.
Unanticipated consequences of “novel” interpretation of 11e.(2)
In addition to the concerns identified above, another potential problem is that reclassifying the
Sequoyah wastes as 11e.(2) may have unanticipated consequences, both with respect to the
Sequoyah facility and to other facilities subject to NRC regulation. An example of unanticipated
consequences resulting from reinterpretations of what is, and what is not, 11e.(2) byproduct
material may be instructive.
Recently, the staff revised its interpretation of 11e.(2) byproduct material. It concluded that
material that met the definition in sec. 11e.(2) of the AEA (i.e., material that was tailings or waste
produced by the extraction or concentration of uranium or thorium from any ore processed
primarily for its source material content) was not 11e.(2) byproduct material if it was not under
NRC (or Agreement State) license at the time of, or after, the enactment of UMTRCA. The intent
of the revised interpretation was to preclude NRC from having to regulate the U.S. Army Corps of
Engineers (ACE) as it worked at remediating sites under the Formerly Utilized Sites Remedial
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Action Program (FUSRAP). Much of the radioactive material at FUSRAP sites met the definition in
AEA sec. 11e.(2). Before being transferred to ACE, remediation activities at FUSRAP sites had
previously been performed by DOE, which is not a “person” subject to NRC regulation under the
AEA and thus neither the material nor the DOE activities were licensed by NRC at most of the
FUSRAP sites. The reinterpretation of 11e.(2) byproduct material solved the immediate problem
of regulating ACE activities at FUSRAP sites. However, it was not recognized, until late in the
process, that material from FUSRAP sites had been sent by DOE to an NRC licensed site for
disposal as 11e.(2) byproduct material. Under the revised interpretation, that site now has a
mixture of 11e.(2) byproduct material and similar radioactive material not regulated under the AEA,
along with material that may be regulated under the Resource Conservation and Recovery Act, in
its 11e.(2) byproduct material cell. The long-term ramifications of that situation have not yet been
resolved.
The change in interpretation of AEA sec. 11e.(2) recommended in the Commission Paper is a
significant departure from past practice by the agency. As such, it may affect other licensees or
facilities in ways not currently anticipated. For example, are there other facilities that could, under
the recommended revised interpretation, reclassify some wastes as 11e.(2) byproduct material?
Could the proposed reclassification have the effect of bringing some wastes that have not been
regulated by NRC, such as from side stream recovery operations at phosphate facilities, under
NRC authority? Any time we reinterpret legislation and regulations and reverse years of agency
practice, we run the risk of unanticipated consequences.
The problem is with decommissioning process
The underlying reason for the proposal to reclassify some Sequoyah facility wastes as 11e.(2)
byproduct material is that the decommissioning process applicable to the facility has
implementation problems. It appears to us that the solution should be to remedy those problems,
rather than try to force the Sequoyah facility wastes into the mill tailings program.
As we understand it, the major problem confronting SFC under the decommissioning regulations in
10 CFR 20.1403 is the need to identify a long-term custodian. DOE apparently is reluctant to
accept the role as custodian for the site, even though it could do so under current legislation.
Perhaps a reinterpretation of the requirements in §20.1403 rather than the definition in AEA sec.
11e.(2) may be possible. Perhaps a request from the highest levels in NRC to DOE would help.
Perhaps a request to Congress, to enact legislation requiring DOE to take such sites, is needed.
The solution to problems related to implementing the requirements in §20.1403 should begin
there, rather than in reinterpreting the definition in AEA sec. 11e.(2), with all the potential problems
that could create.
Performance goals
We have also analyzed the two options presented in the Commission Paper (continue
decommissioning the site under the requirements in the LTR, and reclassify some of the wastes
as 11e.(2) byproduct material) with respect to the performance goals identified in the NRC
Strategic Plan.
Maintain safety, protection of the environment, and the common defense and security
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Decommissioning the Sequoyah site under the requirements in either 10 CFR 20.1403 (option 1)
or 10 CFR Part 40, Appendix A (option 2) would meet this goal. A major argument to reclassify
some of the wastes as 11e.(2) byproduct material is that it would be more likely to lead to actual
site decommissioning than it would be if the current process were continued. However, as shown
above, that argument is highly problematical. We conclude that neither option is more likely to
lead to achievement of this goal.
Increase public confidence
To reach this goal, the NRC must be viewed as an independent, open, efficient, clear and reliable
regulator. It can be argued that reclassifying the Sequoyah wastes as 11e.(2) byproduct material,
primarily because the licensee sees that as a more expedient path to decommissioning, will not
increase public confidence. As discussed in the Commission Paper, in 1993 SFC made an
argument that some of the wastes could be considered to be 11e.(2) byproduct material. In a
July 6, 1993 Memorandum to the Commission, the Executive Director of Operations wrote “The
uranium contaminated decommissioning wastes at Sequoyah Fuels do not fit the definition of
11e.(2) byproduct material...” The Commission Paper does not present a strong argument to
revise that conclusion, other than the perception that it may be more expedient. In 1997, NRC
promulgated the LTR to address decommissioning at sites like Sequoyah. However, because of
problems with the LTR, SFC is once again asking NRC to reclassify some of the wastes as
11e.(2) byproduct material. Agreeing to the reclassification will not make NRC look independent,
efficient, or reliable. We conclude that option 1 will enhance achievement of this goal, while
option 2 will be detrimental to this goal.
Make the NRC activities and decisions more effective, efficient, and realistic
The Strategic Plan states “In working toward this performance goal, the NRC will apply its
Principles of Good Regulation, which include efficiency, clarity, and reliability.” The primary
justification for option 2 is that the current regulatory framework for decommissioning the
Sequoyah facility, §20.1403, is proving difficult to implement. It appears to us that improving the
regulatory framework of §20.1403 would be the appropriate way of achieving this goal.
Reclassifying material because of implementation problems with the regulatory framework under
which it has always been regulated, does not appear to us to be a sign of reliable regulation. We
conclude that option 2 will be detrimental to this goal.
Reduce unnecessary regulatory burden on stakeholders
Decommissioning the Sequoyah site under the requirements in either 10 CFR 20.1403 or 10 CFR
Part 40, Appendix A imposes a regulatory burden on SFC. The argument for option 2 could be
construed as an argument that doing so would reduce the regulatory burden on SFC. However,
as shown above, that argument is highly problematical. Furthermore, another stakeholder, the
State of Oklahoma, has initiated a hearing on SFC’s proposed decommissioning plan. The
Commission Paper states that if option 2 is approved, the current decommissioning plan would
require significant changes. If Oklahoma (or another stakeholder) identifies concerns with the
revised decommissioning plan, it would have to initiate another hearing to address those
concerns. The regulatory burden on stakeholders other than SFC could therefore be increased
under option 2. We conclude that option 2 could be detrimental to this goal.
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Conclusion
For all the reasons identified and discussed above, we conclude that the wastes at the Sequoyah
facility should not be reclassified as 11e.(2) byproduct material, i.e., that option 1 should be
chosen.