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HomeMy WebLinkAboutDRC-2020-021664 - 0901a06880ef6078 1 Aaron M. Paul Staff Attorney Grand Canyon Trust 4404 Alcott Street Denver, Colorado 80211 D: 303-477-1486 November 6, 2020 By Electronic Mail Ty L. Howard Director, Division of Waste Management and Radiation Control Utah Department of Environmental Quality P.O. Box 144880 Salt Lake City, Utah 84114-4850 dwmrcpublic@utah.gov Re: Sur-Reply to Energy Fuels’ Reply to Our Comments on Proposed Amendment No. 10 to the Radioactive Materials License for the White Mesa Uranium Mill Dear Mr. Howard: There’s a claim in Energy Fuels’ response to our comments on the proposed licensing action for the White Mesa mill that sounds a motif. The company asserts that our comments were “incorrect to state that Mill tailings are ‘wastes.’”1 And yet, in 2006, the author of that allegation wrote that “[t]he predominant waste generated by uranium mills on an ongoing basis are the mill tailings themselves….”2 There are other U-turns and inconsistencies in the company’s response. Energy Fuels flip-flops on whether alternate feeds are wastes,3 for example, and faults us for making an “inflammatory” statement when we were directly quoting the company’s founder, George Glasier.4 1 Energy Fuels, Response to Public Comments, p. 99 (Sep. 25, 2020) (“EFR’s Resp.”) (emphasis added). 2 David C. Frydenlund, “Waste Streams, Disposal, and Clean-up Issues Associated with Uranium Mining and Milling,” Rocky Mtn. Mineral Law Found., p. 7-14 (Apr. 27, 2006) attached as Exhibit 28. 3 Compare EFR’s Resp. at 99 with Ex. 28 at 7-18. 4 Compare EFR’s Resp. at 97 with Stephane A. Malin, The Price of Nuclear Power: Uranium Communities & Envtl. Justice, 96 (2015). 2 The core problem with all of this isn’t so much that the company sometimes tripped over its own words in its haste to disagree with us, but that in so doing, it often neglected to engage sincerely with our arguments. It didn’t offer any legal reasoning, for example, to support its claim that the Division lacks the discretion to reject the applications to process the Silmet and Moffat Tunnel materials.5 And it didn’t seriously contend with the evidence showing that the Silmet material will not be “[i]mported solely for the purposes of recycling and not for waste management or disposal….”6 Instead, Energy Fuels asserted only that the material “will be processed” and the company’s purpose is “therefore” solely to recycle the material,7 even though the material also will be disposed of at the mill, and indeed, Energy Fuels admits that it would not import the material at all if it could not discard the post-processing waste at the mill. All told, the company’s responses to our arguments give no reason for us to amend any of the requests we made in our comments, and we reiterate those requests here. Thank you for the opportunity to submit this sur-reply. We are grateful for the Division’s extra effort to solicit and consider the public’s views and develop a more thorough record. I. Energy Fuels’ response sidesteps our argument for denying the alternate-feed applications. Our comments stressed that the Division has the legal authority to reject Energy Fuels’ alternate-feed applications if it finds that they are “inimical to the health and safety of the public.”8 We urged the Division to make that finding on the grounds that the pollution of Utah’s environment and communities from processing the Silmet and Moffat Tunnel materials wouldn’t occur if the market for nuclear fuel, rather than waste disposal, controlled whether these materials were sent to White Mesa, run through the mill, and forever buried there.9 Because the mill was not placed atop White Mesa to serve as an indefinitely running landfill for the world’s radioactive wastes, we believe it is “inimical to the health and safety of the public” to burden Utah’s environment and communities with pollution that wouldn’t happen if Energy Fuels could not sell its clients this waste-disposal service. Our argument here has a great deal to do with process. It’s our view—and we don’t believe it’s an especially controversial one—that only with a clear statutory 5 EFR’s Resp. at 109. 6 10 C.F.R. § 110.2 (emphasis added). 7 EFR’s Resp. at 114. 8 Grand Canyon Trust, et al., Comments on Proposed Amendment No. 10 to the Radioactive Materials License for the White Mesa Uranium Mill, pp. 12–15 (July 10, 2020) (“Trust, et al., Comments”). 9 Id. 3 authorization and only after a thorough public discourse should there be a decision about what places in this country will be blighted by a landfill that accepts radioactive wastes from around the globe for disposal. True enough, the mill was chosen, with some public process, in the late 1970s as a disposal site for radioactive uranium- milling wastes produced over a period projected to last until about 1995.10 But it’s not true that it was chosen as a place for an industrial operation that processes other business’s radioactive wastes endlessly. And that transformation in Energy Fuels’ business perpetuates harms—like dirtying the air, plaguing the roads with massive trucks, and killing wildlife—that wouldn’t occur if the mill operated for its useful life as a supplier of yellowcake and was reclaimed.11 Rather than respond directly to this point, a good share of Energy Fuels’ response is devoted to arguments that the mill provides jobs and that recovering uranium from alternate feeds is environmentally beneficial.12 The core problem with these arguments is that alternate-feed milling began without a public lawmaking process in which these supposed benefits of Energy Fuels’ alternate-feed business were found to outweigh the harms. Instead, Energy Fuels unilaterally decided that existing federal law could be stretched to allow it to undertake its alternate-feed business, and a handful of Commissioners and Nuclear Regulatory Commission staff ultimately consented to that idea, without undertaking a rulemaking, let alone seeking clarification from Congress about whether the laws Congress passed were intended to allow for uranium milling to transform in this way. The balance of Energy Fuels’ response mostly addresses arguments we did not raise. Energy Fuels begins by asserting that “DWMRC is bound to follow federal law on the definition of what is ore, and therefore what is 11e.(2) byproduct,” 10 See Trust, et al., Comments at n.6 (collecting citations). 11 Energy Fuels asks us to demonstrate that processing alternate feeds kills wildlife. See EFR’s Resp. at 109. Our point was that alternate feeds enable the mill to run when it wouldn’t otherwise, and that the mill’s operations kill wildlife. Trust, et al., Comments at 13. On this score, Energy Fuels’ records show that its employees often see birds on the mill’s waste pits and sometimes pull deer out of the mill’s waste pits. See, e.g., Energy Fuels’ tailings system inspection records for March–April 2009, September–October 2009, January–May 2010, November 2010, January 2011, March–June 2011, October– November 2011 (records available upon request). We admit that we cannot prove that these animals thereafter perished, just as Energy Fuels cannot prove that animals have not sunk to the bottom of the waste pits. But we have heard second-hand reports that mill employees have retrieved dead birds from the pits, and our judgment tells us that over the course of four decades, some animals who drank from or took a dip in the mill’s highly acidic waste solutions didn’t survive the experience. After all, Energy Fuels has long insisted that it takes measures to shoo wildlife away from the waste pits, a practice that would be anomalous if the pits weren’t a danger to those animals. See, e.g., Letter from J. Hamrick re: Wildlife in Tailings Area (Sep. 21, 1990), attached as Exhibit 29. 12 EFR’s Resp. 107–109. 4 claiming that these definitions “have long been resolved beyond legal dispute.”13 The company then discusses the history of litigation involving Energy Fuels and the State of Utah before the Nuclear Regulatory Commission, and concludes with the observation that “[t]he issues raised by the commenter are an attempt to re-litigate issues already resolved by NRC and the courts and binding on DWMRC.” This line of argument is off base. We didn’t argue in our comments that alternate feeds are not “ore,” nor did we claim that the ensuing wastes are not byproduct material.14 It’s true that the question of how to interpret those terms has been litigated in the past, and while we disagree with the result, we elected not to dispute it in our comments. Our argument, instead, is that, regardless of the definitions of “ore” and “byproduct material,” the Division retains power under Utah state law to deny Energy Fuels’ applications to process the Silmet and Moffat Tunnel materials. Put differently, even if we concede for the sake of argument that those materials are “ore” and that the wastes from processing those materials are “byproduct material” within the meaning of the Atomic Energy Act, the Division is not bound by federal law to allow Energy Fuels to process them. Rather, the Division has the power to reject the applications, at a minimum, on the grounds that allowing the company to process these wastes so that they may be discarded at the mill is “inimical to the health and safety of the public.”15 Energy Fuels addresses this legal standard only briefly, contending that “DWMRC found that the Silmet material is comparable to other materials and therefore is not ‘inimical to the health and safety of the public.’”16 Yet whether or not it is true that the Silmet material is comparable to “other materials,” it doesn’t follow logically that processing it is not inimical to the health and safety of the public, nor does it address our core argument: that the health and safety risks of milling the Silmet and Moffat Tunnel material wouldn’t occur at all if Energy Fuels was confined to operating like a traditional, conventional uranium mill, as was contemplated when the mill was originally built on White Mesa. Put differently, it’s simply not true, contrary to what Energy Fuels has implied,17 that Energy Fuels would go mine 2,000 tons of native uranium ore on the Colorado Plateau if it couldn’t import and process the Silmet material, for today’s market price for yellowcake wouldn’t justify the mining expense. In truth, disallowing Energy Fuels from earning fees to process other business’s radioactive wastes would prevent a sizable share of the pollution caused by 13 EFR’s Resp. at 106. 14 Trust, et al., Comments at 12–15. 15 See Utah Admin. Code R313-22-33(1)(d). 16 EFR’s Resp. at 109. 17 EFR’s Resp. at 115. 5 the mill. According to Energy Fuels, about half of its yellowcake business in the past two decades has come from processing “uranium-bearing materials” other than native uranium ore.18 While the company hasn’t said what share of those feeds (if any) may have been justifiable to process based solely on the value of the yellowcake they yielded, we suspect most of this segment of the company’s business—and the radiation and other pollution it occasions—would never have occurred if the mill were operating only as a conventional uranium mill, as originally planned. No legal impediment bars the Division from finding that it is inimical to the health and safety of the public to allow Energy Fuels to use the White Mesa mill as a waste-disposal facility for alternate feeds like the Silmet and Moffat Tunnel wastes. We urge the Division to make that finding in this licensing action. II. The Commission’s regulations require Energy Fuels to obtain a specific-import license for the Silmet material. A. Energy Fuels’ argument that the Silmet material is source material and therefore cannot “contain” source material is unsound and should be rejected. Energy Fuels contends that, if the Division licenses the company to process the Silmet material, “the entire mass” of the material will become source material and therefore cannot be a material that “contains” or is “contaminated” with source material, as is required for it to qualify as “radioactive waste.”19 The Division should reject this argument. Source material is defined to include two things: (1) natural or depleted uranium or thorium; or (2) ores containing more than 0.05% uranium or thorium.20 Energy Fuels’ argument focuses solely on the second half of this definition. But under that definition’s first half, the natural reading of the term “radioactive waste” includes any material that contains or is contaminated with uranium or thorium.21 Indeed, it is common for the Commission’s regulations to refer to materials, substances, equipment, devices, commodities, and products that “contain” source material, a phrasing that invariably means that the substance at issue contains uranium or thorium.22 18 EFR’s Resp. at 127. 19 Id. at 113. 20 10 C.F.R. § 110.2 (“Source material”). 21 Id. (defining “radioactive waste” as “any material that contains or is contaminated with source … material that by its possession would require a specific radioactive materials license…”). 22 See, e.g., 10 C.F.R. §§ 40.13(c)(2), 171.16(d), 40.52, 140.13b, 40.22, 51.68, 170.11, 170.2, 150.15(a)(6), and 150.17(d)(4). 6 There is no disputing that the Silmet material contains uranium.23 And that aspect of the Commission’s definition of “radioactive waste” is therefore satisfied. Since the same is true of the remaining criteria for a material to qualify as a “radioactive waste,”24 the only question is whether the recycling exclusion applies. B. The recycling exclusion does not apply. As we argued in our comments, the recycling exclusion does not allow Energy Fuels to import the Silmet material using a general license, for the company’s purpose is not “solely” to recycle that material.25 On this point, Energy Fuels makes no argument beyond its ipse dixit: “the material will be processed for its source material content,” Energy Fuels asserts, “and will therefore be imported solely for the purposes of recycling and not for waste management or disposal,” adding that “there is a market for the recycled uranium.”26 This assertion doesn’t respond to the argument we laid out. It does not follow logically that, merely because Energy Fuels will process the Silmet material for its source material content, the company’s sole reason for importing the material is to recycle it rather than dispose of it. The crux of our argument—which Energy Fuels disregards—is that the evidence shows overwhelmingly that the reason for importing the Silmet material is to provide a waste-disposal service to Silmet.27 This is evident from the economics of the deal with Silmet, from the small fraction and value of the material that can be “recycled” and sold, and from how Silmet and the Republic of Estonia have handled the material.28 While these circumstances align precisely with behavior that the Commission warned could amount to “sham recycling,”29 Energy Fuels claims that “[t]he law is clear that processing an ore at a licensed uranium mill for the recovery of uranium is 23 See Silmet Application at 6. 24 It’s indisputable that possessing the Silmet material “would require a specific radioactive materials license....” 10 C.F.R. § 110.2 (“Radioactive waste”). Energy Fuels itself argues that its purpose for importing the material is to “recycle” it by processing it through the White Mesa mill. See, e.g., EFR’s Resp. at 93 (referring to the plans for the Silmet material as “one small recycling project”). And it is beyond question that processing the Silmet material will generate “radioactive material for disposal in … a disposal area as defined in Appendix A to 10 CFR part 40.” 10 C.F.R. § 110.2. 25 Trust, et al., Comments at 18–21. 26 EFR’s Resp. at 114 (emphasis added). 27 Trust, et al., Comments at 18–21. 28 Id. 29 See “Export and Import of Nuclear Equipment and Material,” 75 Fed. Reg. 44,072, 44,076 (July 28, 2010). 7 not a ‘sham,’ regardless of the economics of processing.”30 Yet the company offers no citation for where that “clear” legal proposition can be found. We imagine the company is thinking of the Commission’s ruling in In re Int’l Uranium (USA) Corp., 51 NRC 9 (2000). But as we pointed out in our comments,31 the statutory text that the Commission interpreted in that appeal differs in a crucial way from the text of the Commission’s import regulations. The legal question for domestically sourced alternate-feeds is whether they will be processed primarily for their source material content; the question for foreign-sourced alternate feeds is whether they will be imported solely for the purpose of recycling.32 It consequently does not follow from the Commission’s ruling in In re Int’l Uranium (USA) Corp., that an “alternate feed” may be imported into the United States to be processed and discarded “regardless of the economics.”33 Indeed, Energy Fuels admits that it would not import the Silmet material into the United States if it could not discard the resulting waste at the White Mesa mill, no doubt because of “the economics.”34 We submit that this concession demonstrates that the company’s purpose is not “solely” to recycle the material, but instead to dispose of it at the mill. That being so, the recycling exclusion does not apply, and the Commission’s rules forbid Energy Fuels from importing the Silmet material using a general license. C. The Commission’s 1998 licensing action for the Cameco materials is not relevant. Energy Fuels’ response again stresses that the Commission in 1998 authorized the company to import materials from Canada using a general-import license, reasoning that the Commission’s rules back then allowed Energy Fuels to import anything it was licensed to possess and process.35 But again, this argument does not control the legal analysis that applies today.36 In 1998, the Commission’s general-import license also forbade the importation of “radioactive waste,” but the definition of radioactive waste was significantly different than it is today, and in particular, did not address at all the subject of recycling.37 In 2010, the Commission revised the definition of “radioactive 30 EFR’s Resp. at 113–114. 31 Trust, et al., Comments at 17–18. 32 Id. 33 EFR’s Resp. at 114. 34 Id. at 115 (“The commenter’s suggestion that the tailings from this recycling be returned to Estonia is absurd and would defeat the purpose of recycling, by eliminating recycling as a viable option to Silmet.”). 35 10 C.F.R. § 110.27(a) (1998). 36 Trust, et al., Comments at 18. 37 10 C.F.R. § 110.2 (1998) (“Radioactive waste”). 8 waste” and adopted the recycling exclusion that remains codified today.38 As a result, the Commission’s analysis of its import rules in 1998 does not answer the question of how the recycling exclusion applies. This conclusion is not changed by the e-mail from Commission staff that Energy Fuels appended to its response as Attachment C, for that e-mail provides no discussion of the facts and no analysis of the applicable law.39 On the subject of radioactive waste, the e-mail offers only the conclusory statement that “[t]he alternative feed is not radioactive waste, as defined in Part 110.”40 Neither the Commission nor Energy Fuels have set out any legal analysis of the requirement that the Silmet material be imported “solely” for recycling, nor have they presented a case for concluding that the evidence shows this requirement to be satisfied. On the contrary, the evidence shows the opposite: Energy Fuels will not import the Silmet material solely for the purpose of recycling, but rather to dispose of it at the mill. As a result, if the Division approves Energy Fuels’ request to possess and process the Silmet material, its approval should be contingent on Energy Fuels’ acquisition of a specific-import license. D. The balance of Energy Fuels’ response has no bearing on the legal analysis for determining whether a specific import license is required. In addressing our argument that a specific-import license is required, Energy Fuels devotes the rest of its response to asserting that we don’t “understand recycling,” and that processing the Silmet material is beneficial to the environment.41 We disagree, but think it suffices to point out in response that these issues are irrelevant to the legal analysis of whether the Silmet material may be imported using a general-import license. III. Energy Fuels’ claim that mill tailings are not “wastes” is diametrically opposed to its prior statements. In our comments, we urged the Division to revise its assertion that “11(e)(2) byproduct” material is not “waste.”42 By definition, it is waste: “the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content.”43 It should not be a controversial idea that the mill tailings that will be spread over about 300 acres and buried for eternity in southeastern Utah is waste. 38 75 Fed. Reg. at 44,076. 39 See EFR’s Resp. at Attachment C. 40 Id. 41 EFR’s Resp. at 114–115. 42 Trust, et al., Comments at 22. 43 42 U.S.C. § 2014(e)(2). 9 Energy Fuels disagrees, arguing that “[u]ranium mill tailings are not wastes….”44 But its position today is diametrically opposed to its past statements. In 2006, the author of Energy Fuels’ comments explained that: “[t]he predominant waste generated by uranium mills on an ongoing basis are the mill tailings themselves….45 It’s perplexing, to say the least, to be accused of making an “incorrect” assertion by the person whose very words we are merely repeating. 46 Energy Fuels’ about-face on this issue seems to be driven by the idea that the company sometimes makes yellowcake or recovers vanadium from some of the tailings in the mill’s “tailings management system,” and (we infer) that the company thus reasons that tailings are perpetually reused rather than permanently discarded.47 This argument has no merit. It is true that Energy Fuels has sometimes processed some fraction of the mill’s tailings, but nearly all the re-processed tailings are then put right back into the mill’s pits, and it is there that those wastes are meant to remain until the end of time. That some fraction of the content of some of the pits might be run through the mill again sometime in the future doesn’t mean that tailings, writ large, aren’t waste. At the very least, we have no doubt that Energy Fuels has no plans to disinter the tailings in Cells 2 and 3 to run them through the mill again. And it is consequently beyond question that the contents of those cells are wastes that have been discarded into the environment. The truth is that “[t]he predominant waste generated by uranium mills on an ongoing basis are the mill tailings themselves….”48 Our comments simply ask the Division to acknowledge that point so that the public isn’t misled about what 11(e)(2) byproduct materials are. IV. Energy Fuels’ quarrel with our statement of facts is hyperbolic and sometimes contradicts its own prior statements. A good share of Energy Fuels’ response to our comments is directed to a squabble, not about what the facts are, but about how we presented them.49 Though the company claimed that we made statements that are “patently false,” “incorrect,” and “generally not true,”50 it didn’t back those claims up, particularly not with 44 EFR’s Resp. at 99. 45 Ex. 28 at 7-14. 46 EFR’s Resp. at 99 (claiming that “it is incorrect to state that Mill tailings are ‘wastes.’”). 47 See EFR’s Resp. at 99; 96 (contending that an “impoundment” is something that “materials are placed into to store, reuse or evaporate”). 48 Ex. 28 at 7-14. 49 See EFR’s Resp. at 92–101. 50 Id. at 94, 96, 97 10 citations or other evidence to gainsay our account of the facts. Energy Fuels argues, for example, that it was “patently false” for us to observe that “[n]o description of the mill’s operation appears in any of the documents on which the Division is seeking comment.” To ostensibly prove up this allegation, the company then points to a “timeline of controls and license renewal events” from a 2018 public participation summary for a different licensing action.51 Since that is not one of the documents “on which the Division is seeking comment,” there was nothing “patently false” about what we said. Indeed, we think it’s unremarkable for the public to put into the record background about the mill that, for whatever reason, was otherwise omitted. The company also disputes our observations about groundwater contamination at the mill by asserting that the contamination is not from releases from its “tailings management system.”52 And yet, our comments asserted only that Energy Fuels’ business has fouled the groundwater beneath the mill,53 a statement whose accuracy Energy Fuels confirms when it points out that “[t]he chloroform plume appears to have resulted from the operation of a temporary laboratory facility that was located at the site prior to and during the construction of the Mill, and from septic drain fields that were used for laboratory and sanitary wastes prior to construction of the Mill’s tailings cells.”54 Energy Fuels similarly criticizes us for asserting that the mill, at its inception, was expected to process “low-grade” ore for about 15 years.55 And yet this is precisely how Energy Fuels’ described the plan for the mill to the Nuclear Regulatory Commission,56 and how the Commission portrayed that plan to the public in the environmental impact statement published in 1979 to determine whether to issue a license for the mill’s operation.57 If this was not in fact the plan for the mill, then the public-facing documents prepared for the purpose of determining whether to issue a license were intentionally misleading. While much of the disagreement on these points has only minor bearing on 51 EFR’s Resp. at 94. 52 Id. at 100. 53 Trust, et al., Comments at 9. 54 EFR’s Resp. at 100. 55 Id. at 97–98. 56 Trust, et al., Comments, Ex. 4 at 1-2 (“The mill is planned to have a 2,000 tons-per- day capacity and a projected life of 15 years.”); id. at 10-1 (referring generally to the uranium ore to be processed at the mill as “low grade ore”). 57 Trust, et al., Comments, Ex. 2 at 10-21 (describing average projected ore grades of 0.125% as “low grade”); 1-1 (describing projected project lifetime as 15 years); id. at 3-18 (chart showing that “mill operation ends” at the end of year 15); 3-12, 3-15, 4-3, 10-9, 10- 11, 10-13 (describing design features intended for 15 years’ of use). 11 the decisions facing the Division, two especially important observations emerge. First, it reveals that Energy Fuels’ arguments today sometimes contradict its past statements. The company’s claim that tailings are not “wastes” is but one example. Energy Fuels also now argues that “[a]lternate feed materials are valuable ores and are not wastes, any more than conventional ore are wastes before they are processed.”58 And yet, in the 2006 paper we discussed above, the author of Energy Fuels’ response to our comments listed “alternate feed materials,” under the heading “Wastes Accepted by Mills from Third Parties,” having introduced the subject with the observation that: “uranium mills can accept other types of materials, which may be wastes in the hands of the generator of the materials, thereby helping to solve the gernator’s waste management problems.”59 Another paper by the same author for the Waste Management Symposia in 2002 is devoted wholly to explaining how “mixed wastes” can be disposed of at uranium mills by processing them as “alternate feeds.”60 Another example surfaces in the company’s many complaints61 that our comments contain “misleading, inflammatory, and speculative language”: The statement that the mill was once sold for “almost nothing” isn’t our phrasing, but a direct quote from the company’s founder, George Glasier.62 In each of these examples, the company has in effect asserted that its own prior statements were incorrect, misleading, or inflammatory. And in each instance, when the company wasn’t battling our comments and had no incentive to be mealy- mouthed, the company’s past statements agreed with our comments. We think this is a good indication that our characterization of these now-disputed issues is the better one. Second, the fact that the company is displeased by our effort to talk about the mill in an everyday way, without using the bureaucratese it prefers, shows that word choice matters in public-facing discussions about the mill. Energy Fuels is piqued, for example, that we often use the word “pit” instead of “impoundment,” arguing that the word pit is “patently incorrect and inflammatory.”63 Yet we imagine most people would guess an “impoundment” is the place where you retrieve your car after parking it illegally. And while we don’t dispute that the definition of “pit” that 58 EFR’s Resp. at 99. 59 Ex. 28 at 7-18 (emphasis added). 60 David C. Frydenlund, “Accepting Mixed Waste as Alternate Feed Material for Processing and Disposal at a Licensed Uranium Mill (Feb. 2002) attached as Exhibit 30. 61 See EFR’s Resp. at 94, 96–98, 101. 62 Stephane A. Malin, The Price of Nuclear Power: Uranium Communities and Environmental Justice, 96 (2015) (quoting George Glasier). 63 EFR’s Resp. at 96. 12 Energy Fuels cites64 captures one sense of the word’s meaning, so too does the definition in our dictionary, which says that “pit” means “a large hole in the ground.”65 It’s an overstatement, to say the least, for Energy Fuels to insist that it’s “patently incorrect and inflammatory” for us to describe a 40-plus-acre cavity in the earth where the mill’s waste is deposited as “a large hole in the ground.” Using code words like “impoundment” instead of “pit” and “byproduct” instead of “waste” sanitizes a business that’s off-putting to many people when you talk about it in a normal way. Put differently, our narrative about the mill is only so “inflammatory” as Energy Fuels’ is anodyne. V. Conclusion We are grateful for the opportunity to reply to Energy Fuels’ comments on the proposed license amendments. Please don’t hesitate to reach out with any question about our comments or to discuss any matters we’ve raised. Very truly yours, Aaron M. Paul Staff Attorney Grand Canyon Trust Allison N. Melton Staff Attorney, Public Lands Program Center for Biological Diversity Preston J. Truman Director Downwinders, Inc. Josh Ewing Executive Director Friends of Cedar Mesa Shelley Silbert Executive Director Great Old Broads for Wilderness 64 Id. 65 New Oxford Am. Dictionary, 1333 (3d Ed. 2010). Scott Williams, M.D., M.P.H. Executive Director Healthy Environment Alliance of Utah Susan Gordon Coordinator Multicultural Alliance for a Safe Environment Eric Jantz Staff Attorney New Mexico Environmental Law Center Neal Clark Wildlands Program Director Southern Utah Wilderness Alliance 13 Phil Hanceford Conservation Director The Wilderness Society Steve Erickson Policy Advocate Utah Audubon Council Woody Lee Executive Director Utah Diné Bikéyah Carly Ferro Director Utah Sierra Club Kelly Fuller Energy and Mining Campaign Director Western Watersheds Project Chris Krupp Public Lands Guardian WildEarth Guardians Enclosures Exhibit 28 Exhibit 29 Exhibit 30 WM’02 Conference, February 24-28, 2002, Tucson, AZ 1 ACCEPTING MIXED WASTE AS ALTERNATE FEED MATERIAL FOR PROCESSING AND DISPOSAL AT A LICENSED URANIUM MILL David C. Frydenlund Vice President and General Counsel International Uranium (USA) Corporation Ron F. Hochstein President and Chief Executive Officer International Uranium (USA) Corporation Anthony J. Thompson Law Offices of Anthony J. Thompson ABSTRACT Certain categories of mixed wastes that contain recoverable amounts of natural uranium can be processed for the recovery of valuable uranium, alone or together with other metals, at licensed uranium mills, and the resulting tailings permanently disposed of as 11e.(2) byproduct material in the mill’s tailings impoundment, as an alternative to treatment and/or direct disposal at a mixed waste disposal facility. This paper discusses the regulatory background applicable to hazardous wastes, mixed wastes and uranium mills and, in particular, NRC’s Alternate Feed Guidance under which alternate feed materials that contain certain types of mixed wastes may be processed and disposed of at uranium mills. The paper discusses the way in which the Alternate Feed Guidance has been interpreted in the past with respect to processing mixed wastes and the significance of recent changes in NRC’s interpretation of the Alternate Feed Guidance that sets the stage for a broader range of mixed waste materials to be processed as alternate feed materials. The paper also reviews the legal rationale and policy reasons why materials that would otherwise have to be treated and/or disposed of as mixed waste, at a mixed waste disposal facility, are exempt from RCRA when reprocessed as alternate feed material at a uranium mill and become subject to the sole jurisdiction of NRC, and some of the reasons why processing mixed wastes as alternate feed materials at uranium mills is preferable to direct disposal. Finally, the paper concludes with a discussion of the specific acceptance, characterization and certification requirements applicable to alternate feed materials and mixed wastes at International Uranium (USA) Corporation’s White Mesa Mill, which has been the most active uranium mill in the processing of alternate feed materials under the Alternate Feed Guidance. WM’02 Conference, February 24-28, 2002, Tucson, AZ 2 INTRODUCTION Under U.S. rules, mixed waste is waste that contains hazardous constituents regulated under the Resource Conservation and Recovery Act (“RCRA”) and radioactive constituents regulated under the Atomic Energy Act (“AEA”), as amended, and is hence subject to dual jurisdiction by the Environmental Protection Agency (“EPA”) (or the equivalent State authority) and the Nuclear Regulatory Commission (“NRC”) (or the equivalent State authority) or the Department of Energy (“DOE”)1. Thus far, there have been limited disposal options for mixed waste, with the result that large quantities of such wastes (particularly DOE wastes) have had to be exempted from RCRA storage limitations. As a result, disposition of mixed waste has posed a difficult regulatory conundrum that neither generators nor regulators have been able to solve effectively to date. In light of this substantial regulatory uncertainty, it is useful to know that certain mixed wastes can be processed at a licensed uranium mill as alternate feed material under NRC’s “Final Position and Guidance on the Use of Uranium Mill Feed Material Other Than Natural Ores” (the “Alternate Feed Guidance”)2 for the recovery of contained natural uranium, and the resulting tailings and wastes, including the RCRA constituents, disposed of permanently in the mill’s tailings impoundment as 11e.(2) byproduct material, typically at much less cost than direct disposal at a mixed waste disposal facility. As 11e.(2) byproduct material, the wastes are not mixed wastes and are regulated solely by NRC, thereby eliminating dual EPA/NRC jurisdiction. This paper will briefly discuss the regulatory background applicable to hazardous wastes, mixed wastes and uranium mills and, in particular, the Alternate Feed Guidance under which alternate feed materials that contain mixed wastes may be processed and disposed of at uranium mills. The paper will discuss the way in which the Alternate Feed Guidance has been interpreted in the past with respect to processing mixed wastes and the significance of recent changes in NRC’s interpretation of the Alternate Feed Guidance that sets the stage for a broader range of mixed waste materials to be processed as alternate feed materials. REGULATORY BACKGROUND Regulation of Hazardous Wastes Hazardous wastes are regulated by EPA (or the equivalent state authority)3 under RCRA. If a material is a “solid waste,” as defined in 40 C.F.R. § 261.2, it may be classified as either a characteristic hazardous waste, as defined in 40 C.F.R. §§ 261.20-24, or a listed hazardous waste, as defined in 40 C.F.R. §§ 261.30-33. Generally, a characteristic hazardous waste is a solid waste that exhibits one of the characteristics of toxicity, ignitability, corrosivity or reactivity, and listed hazardous wastes are solid wastes that are enumerated on any one of a number of specified lists of chemicals and metals, or that resulted from any one of a number of specifically listed processes. WM’02 Conference, February 24-28, 2002, Tucson, AZ 3 Unless specifically exempted, characteristic and listed hazardous wastes must generally be disposed of in a facility that is regulated under 40 C.F.R. Part 264 (a “RCRA Subtitle C” facility), and is hence subject to the jurisdiction of EPA. There are a number of exemptions from these requirements, most notably, the Bevill exemption, which exempts extraction, beneficiation and certain mineral processing wastes from regulation under RCRA in certain circumstances; the ability to obtain a “contained out” determination where environmental media such as soils or sediments contain listed hazardous wastes at de minimus levels; the “recycling” exemption, which exempts materials that exhibit a hazardous characteristic but are reclaimed to recover a valuable material in accordance with RCRA guidelines; and the source material exemption. The recycling exemption and the source material exemption will be discussed in more detail below. Regulation of Uranium Mills Under the AEA, NRC (or the equivalent state authority4) has sole jurisdiction over the regulation of source material (i.e., uranium and thorium), special nuclear material and byproduct material (which includes uranium recovery tailings and wastes, i.e., 11e.(2) byproduct material). As uranium mills process source material ores for the recovery of source material, and in so doing create and dispose of 11e.(2) byproduct material, uranium mills and their operations are primarily subject to regulation by NRC under the AEA, as amended by the Uranium Mill Tailings Radiation Control Act (“UMTRCA”). UMTRCA requires NRC to conform its requirements with applicable EPA environmental standards for uranium mill tailings. Uranium mills are also subject to the requirements of Clean Air Act radon emission limits, and typically air quality permits issued by the state in which the mill is located. The AEA, as amended by UMTRCA, gives NRC wide-ranging authority to regulate the disposal of 11e.(2) byproduct material. EPA and NRC regulations, developed under UMTRCA, provide a unique and extremely protective regime of controls to limit releases of radionuclides and non-radiological (e.g., hazardous) materials into the environment. In addition, when uranium mills are finally decommissioned and tailings are stabilized, NRC regulations require “passive” control systems, paid for by the licensee, which will provide reasonable assurance that potential radiological and non-radiological hazards will be controlled for a minimum of 200, and to the extent practicable, 1,000 years, without “active” (i.e., ongoing) maintenance. Finally, UMTRCA requires transfer of the tailings impoundments and any other property required for the disposal of byproduct material, along with associated long-term care funds, to DOE or the State where located for perpetual care. As a practical matter, this means that the U.S.Government, through DOE, will become an NRC licensee for each uranium mill site in perpetuity, and will have the funds provided by the mill licensee for long term surveillance and any necessary long-term care. Each operating mill must maintain an NRC-approved financial surety arrangement, adequate to cover the estimated costs, as accomplished by a third party, for decommissioning and decontamination of the mill and the mill site, reclamation of any tailings or waste disposal areas, ground-water restoration as warranted, and long-term surveillance. WM’02 Conference, February 24-28, 2002, Tucson, AZ 4 NRC’s Alternate Feed Guidance Under a uranium mill’s NRC license, the mill is licensed to process natural uranium ores. In 1995, NRC issued the Alternate Feed Guidance. Alternate feeds consist of uranium- bearing residues from uranium processing facilities or other metal processing facilities, as well as environmental media (soils) contaminated with natural uranium. Under the Alternate Feed Guidance, NRC permits licensees to process alternate feed materials in uranium mills if the following three conditions are satisfied: The alternate feed material meets the NRC definition of “ore,” which 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 [i.e., uranium or thorium] is extracted in a licensed uranium or thorium mill” [emphasis added]. This includes 11e.(2) byproduct material from other facilities, and other processing wastes from ores which have previously been beneficiated for other minerals (i.e., refined or processed ores). The proposed alternate feed material does not contain any RCRA listed hazardous wastes. However, potential alternate feed materials that exhibit only a characteristic of RCRA hazardous waste may be processed as alternate feed materials at uranium mills. The alternate feed material must be processed “primarily” for its source material content. This has recently been interpreted by NRC to mean that the material is actually processed at the uranium mill for the recovery of uranium (alone or in combination with other metals) and it is reasonable to expect that uranium will be recovered. There is no minimum amount of uranium that must be recovered, nor is there any requirement that the value of the uranium recovered must exceed the cost of processing or any processing or recycling/disposal fee Currently, NRC policy requires that a specific license amendment must be obtained for processing each proposed alternate feed material. If a proposed alternate feed material satisfies these three conditions, then, upon application by the licensee, NRC will issue an amendment to the license permitting processing of such materials as ore, with the resultant wastes, including tailings, being classified as 11e.(2) byproduct material. 11e.(2) byproduct material is subject to the federal regulatory framework described above under the heading “Regulation of Uranium Mills.” Regulation of Mixed Wastes As stated above, mixed wastes are wastes that contain hazardous wastes regulated under RCRA and radionuclides regulated under the AEA. As such, they are subject to dual jurisdiction by EPA and NRC. There are a limited number of facilities in the United States that are licensed to treat and dispose of mixed waste. As is evident from the foregoing discussion, however, any waste that, were it to be disposed of would be classified as a mixed waste, because it contains characteristic WM’02 Conference, February 24-28, 2002, Tucson, AZ 5 hazardous wastes5 together with natural uranium, alone or together with natural thorium and their respective progeny6, may be processed as an alternate feed material at a uranium mill if it is reasonable to expect that uranium can be extracted from the materials7. The resulting tailings would be disposed of permanently in the mill’s tailings impoundment as 11e.(2) byproduct material. The ability to process these types of mixed wastes as alternate feed materials at a licensed uranium mill and recycle a valuable energy resource provides an alternative to more costly disposal of these types of mixed wastes at mixed waste treatment and disposal facilities. HISTORICAL APPLICATION OF ALTERNATE FEED GUIDANCE TO PERMIT THE PROCESSING AND DISPOSAL OF MIXED WASTE While a few alternate feed materials were processed by uranium mills in the 1980’s, the primary processor of alternate feed materials since the beginning of the 1990’s has been International Uranium (USA) Corporation’s (“IUC’s”) White Mesa Mill, located near Blanding Utah Since 1994, the White Mesa Mill has received 14 license amendments to process alternate feed materials. The White Mesa Mill is the only facility to have received amendments from NRC under the Alternate Feed Guidance to receive and process alternate feed materials. To date, IUC has not been denied a license amendment request to process alternate feed materials. Several of these alternate feed materials have exhibited characteristics of RCRA hazardous wastes. One of these alternate feeds, the Cotter Concentrate, was actually classified as mixed waste at the Nevada Test Site, due to its RCRA characteristics, but was reclassified as an alternate feed material and processed at the White Mesa Mill for the recovery of uranium. Until January 2001, EPA and the State of Utah Department of Environmental Quality (“UDEQ”), which has RCRA authority in the State of Utah, did not question the ability of uranium mills to process alternate feed materials that contain RCRA characteristic wastes under the Alternate Feed Guidance. The agencies relied implicitly on the RCRA recycling exemption that is available to exempt a RCRA characteristic waste from regulation under RCRA if it is legitimately recycled in accordance with RCRA guidance. However, no independent analysis under RCRA was ever performed to determine whether or not the RCRA recycling guidance actually applied to exempt any particular alternate feed material from the RCRA requirements. It appears that each agency implicitly accepted the concept that if a material is approved by NRC for processing at a uranium mill for the recovery of uranium, it must be considered to be legitimately recycled under the RCRA Guidance such that it is exempt from RCRA. WM’02 Conference, February 24-28, 2002, Tucson, AZ 6 RECENT APPLICATION OF ALTERNATE FEED GUIDANCE TO PERMIT THE PROCESSING AND DISPOSAL OF MIXED WASTE In December 2000, IUC filed an application to amend its NRC license to allow the White Mesa Mill to receive and process certain waste materials from a rare earth producer as alternate feed material pursuant to the Alternate Feed Guidance. The materials consisted of approximately 17,750 tons of lead sulfide sludge containing uranium. The materials, which resulted from the extraction of lanthanides and other rare earth materials, were stored in ponds at the generator’s facility. The materials were estimated to have an average uranium content of approximately 0.15%. The lead content in the materials was a natural component of the ore (similar to many ores processed by IUC) and was at levels such that the materials might not have passed EPA’s Toxicity Characteristic Leaching Procedure (“TCLP”). Consequently, unless exempted from RCRA, the materials potentially could have been subject to regulation as a RCRA characteristic hazardous waste. The materials did not however, contain any listed hazardous waste as defined in RCRA. In a letter received by NRC on February 12, 2001, EPA headquarters expressed concerns regarding IUC’s application. Specifically, EPA advised NRC that according to EPA’s Region 9 Office, the materials were regulated under RCRA as a characteristic hazardous waste and had been classified by the State of California as such.8 EPA further stated that it is “unclear whether RCRA jurisdiction would apply to some components of the waste after it is licensed as a source material,” and, in particular, questioned IUC’s analysis, as stated in the license amendment request, that once NRC has determined the waste to be deemed source material it could be removed from the generator’s facility as a “recycled mineral waste.” In the letter, EPA requested that NRC meet with EPA to clarify this point and to work with EPA to reach a consensus on the issue. In a follow-up letter received by NRC on April 5, 2001, EPA advised NRC that the determination as to whether the materials were hazardous waste required resolution of several issues, including whether the materials in question were “solid wastes.” EPA noted that generally materials are not classified as “solid wastes” when they are legitimately reclaimed, and therefore such materials are not considered hazardous wastes under Subtitle C of RCRA. The letter further stated that EPA had authorized the State of California and the State of Utah to implement their State RCRA programs in lieu of the Federal RCRA program and that NRC should obtain the views of California, Utah and Nevada (through which the materials were to be transported) on this matter. In discussions with the State of Utah Division of Solid and Hazardous Waste (“UDSHW”), UDSHW advised IUC that it interpreted the April 5, 2001 EPA letter as EPA deferring to the State with respect to whether the processing of the materials as an alternate feed material would be exempt from RCRA. UDSHW advised IUC that, based on the letter from EPA, UDSHW would apply standard RCRA guidance to determine whether or not the materials would be legitimately “recycled” at the White Mesa Mill, and hence exempt from RCRA pursuant to 40 C.F.R. § 261.2(e). WM’02 Conference, February 24-28, 2002, Tucson, AZ 7 In response, IUC argued that the primary issue was not whether the materials would be “recycled” and, therefore, would not be hazardous waste, but rather whether the materials were source material ore and hence were not solid waste and, therefore, not regulated under RCRA. Specifically, IUC argued that only “solid wastes” may be regulated as “hazardous waste” under RCRA. See 42 U.S.C. § 6903(5); 40 C.F.R. § 261.3. Source material is expressly excluded from the definition of “solid waste.” RCRA provides that the term “solid waste” does not include: source, special nuclear or byproduct material as defined by the Atomic Energy Act of 1954, as amended, (68 Stat. 923) [42 U.S.C. §§ 2011 et seq.]. 42 U.S.C. § 6903(27); see also 40 C.F.R. § 261.4(a)(4). Consequently, since source material is not a “solid waste,” it cannot be classified as “hazardous waste.” Therefore, source material is not subject to regulation by EPA or an authorized state pursuant to RCRA. Since RCRA must rely on the AEA definition of source material, an understanding of what qualifies as “source material” under the AEA was critical to IUC’s argument. See 42 U.S.C. § 6903(27); 40 C.F.R. § 261.4(a)(4). The term source material is defined to mean: (1) uranium, thorium, or any other material which is determined by the Commission pursuant to the provisions of section 61 to be source material; or (2) ores containing one or more of the foregoing materials, in such concentration as the Commission may by regulation determine from time to time. 42 U.S.C. § 2014z (emphasis added). NRC has determined that licensable or licensed source material ore must contain at least 0.05% uranium and/or thorium. See 10 C.F.R. § 40.4. Thus, any material that satisfies NRC’s definition of ore and contains 0.05% or greater uranium is source material and, therefore, is excluded from regulation under RCRA. As discussed above, in order to be approved for processing at a uranium mill under the Alternate Feed Guidance, an alternate feed material must be an ore. Therefore, an alternate feed material with a uranium content of 0.05% or greater is source material ore, and, for the reasons stated above, such source material ore is exempt from regulation under RCRA. Based on this logic, and because the lead sulphide sludge material contained in excess of 0.05% uranium, it was unnecessary to engage in a RCRA recycling analysis with respect to the materials. IUC argued that upon issuance by NRC of an alternate feed material license amendment to IUC to process the materials as source material ore at the White WM’02 Conference, February 24-28, 2002, Tucson, AZ 8 Mesa Mill, and the materials were destined for processing at the White Mesa Mill pursuant to that amendment, neither EPA nor a state with delegated RCRA authority had jurisdiction over the materials under RCRA. NRC and EPA accepted these arguments, and NRC issued the license amendment on this basis. SIGNIFICANCE OF THE RECENT NRC DECISION ON THE PROCESSING OF MIXED WASTES AS ALTERNATE FEED MATERIALS NRC’s recent position on this issue is significant for three reasons. First, it makes it absolutely clear that any alternate feed material that exhibits characteristics of RCRA hazardous waste and contains at least 0.05% uranium and/or thorium can be processed at a uranium mill for the recovery of uranium, without any need to refer to RCRA recycling guidance. The alternate feed materials are source material ore and are exempt from RCRA. Second, while not applicable in the case of the lead sulphide sludge materials discussed above, which had an expected average concentration of greater than 0.05% uranium, and hence not yet specifically addressed by NRC, alternate feed materials containing less than 0.05% uranium should also be considered alternate feed ores and hence exempt from RCRA for different reasons. Any alternate feed material that is approved by NRC for processing at a uranium mill, regardless of its concentration of uranium, must be an ore that is subject to AEA jurisdiction. As such it should be considered to be a primary raw material feedstock for AEA and RCRA purposes, cease to become a solid waste and therefore cease to be regulated under RCRA. This argument, while consistent with NRC’s position on alternate feed materials that contain in excess of 0.05% uranium or greater, has not yet been specifically addressed by NRC. Third, there is no reason why the foregoing analysis and conclusions should apply only to RCRA characteristic wastes and not to RCRA listed wastes, as listed hazardous wastes are not necessarily more hazardous than characteristic hazardous wastes. Whether or not the alternate feed materials contain 0.05% or greater uranium, in which case they are source material ore under the AEA, or they contain less than 0.05% uranium and are exempt from RCRA because they are ores and are not solid wastes, the exemption from RCRA should apply equally to listed hazardous wastes as to RCRA characteristic hazardous wastes because once processed and the uranium removed the resulting 11e.(2) byproduct material is exempt from RCRA regulations.9 At this time, NRC has not addressed the question of whether or not RCRA listed hazardous wastes should be treated the same as RCRA characteristic wastes under the Alternate Feed Guidance. It should be noted, however, that to the extent an alternate feed material that either exhibits RCRA characteristics or contains RCRA listed hazardous wastes is exempt from RCRA, NRC in approving the license amendment for the alternate feed material will ensure that adequate safeguards exist at the uranium mill to ensure that public health, safety and the environment are protected. WM’02 Conference, February 24-28, 2002, Tucson, AZ 9 POLICY RATIONALE FOR EXCLUDING ALTERNATE FEED MATERIALS FROM RCRA JURISDICTION Congress gave NRC the authority to regulate both the radiological and non-radiological aspects of source material ore processing and the resulting byproduct material, in conformity with standards set by EPA. In Section 84 of the AEA, Congress directed NRC to regulate both the radiological and nonradiological components of mill tailings in conformance with the manner in which EPA manages hazardous waste under RCRA. Specifically, EPA promulgated standards that NRC relied on when promulgating its 10 C.F.R. Part 40, Appendix A criteria. However, unlike the EPA standards, NRC criteria include additional protections and slight variations to address the unique issues associated with the presence of radionuclides in source material ore and byproduct material. The AEA, as amended by UMTRCA, requires NRC to regulate wastes from processing source material based on standards that provide equivalent protection to EPA standards, and, as a result, no permit is required under the Solid Waste Disposal Act for the “processing, possessing, transfer, or disposal of byproduct material.” Section 275 b.(2). NRC, not EPA, is charged with active implementation and enforcement of UMTRCA- generated requirements including ensuring that the standards providing equivalent protection to RCRA, set forth at 40 C.F.R. Part 192, Subpart D, are applied “during and following processing of uranium ores.” 40 C.F.R. § 192.30. Similarly, the applicable surface impoundment design standards and groundwater protection requirements for Subtitle C facilities are incorporated into 10 C.F.R. Part 40 Appendix A, which include the requirements applicable to mill tailings impoundments and the operations of uranium mills generally. See 40 C.F.R. § 192.32. For example, since the long-lived nature of radionuclides pose an additional potential threat beyond mere characteristic waste, the Appendix A criteria, incorporating the 40 C.F.R. Part 192, Subpart D standards, have unique features such as passive controls for 1,000 years through an engineered encapsulation system and a mandatory governmental custodian licensed in perpetuity by NRC, which provide additional protection above and beyond that provided by a state of the art RCRA impoundment. Congress in adopting the AEA, as amended by UMTRCA, delegated to NRC exclusive jurisdiction over AEA definitions for source material and 11e.(2) byproduct material. Had it been intended that EPA should have jurisdiction over these materials, either of which could and both of which frequently do contain hazardous constituents, Congress would not have exempted them from RCRA and provided that where there is a conflict between AEA and RCRA, RCRA yields.10 Therefore, it is only proper that alternate feed material, which NRC determines to be source material ore, is exempt from regulation as hazardous waste under RCRA. If NRC did not assert its sole authority over these materials, it could result in an entangled web of dual jurisdiction of the very kind Congress intended to avoid. From the standpoint of environmental protection, RCRA recycling management requirements are duplicative of NRC’s license amendment process and could lead to confusion or conflicts as a result of the application of two similar, yet distinctly different, regulatory programs.11 The ultimate objective of the RCRA analysis is the same as the WM’02 Conference, February 24-28, 2002, Tucson, AZ 10 analysis NRC performs under the AEA when evaluating whether to approve an alternate feed license amendment—to evaluate whether materials proposed for recycling/processing will indeed be recycled/processed to produce a valuable product (i.e. yellow cake) and to assure that all wastes generated will not avoid appropriate regulatory controls, and will be used and managed in a manner that is protective of human health and the environment. ADVANTAGES OF PROCESSING MIXED WASTES AS ALTERNATE FEED MATERIALS VERSUS DIRECT DISPOSAL Mixed waste that contains recoverable amounts of natural uranium, alone or together with other recoverable metals may be recycled for the uranium content and other metals. These resources would otherwise be wasted were the mixed wastes to be directly disposed of (either with or without stabilization treatment). In some circumstances, the recovery of such resources can offset or eliminate the costs associated with disposal. To the extent that uranium is extracted from the materials, not only are energy resources preserved, but the wastes that will ultimately be disposed of will be less radioactive than they would otherwise be, which reduces further long term concerns about potential impacts to the environment. From a regulatory standpoint, as discussed above, the conversion of mixed wastes into 11e.(2) byproduct material will result in the maximum amount of protection to the generator from long term liabilities. EPA and NRC regulations, developed under UMTRCA, provide a unique and extremely protective regime of controls to limit releases of radionuclides and non-radiological (e.g., hazardous) materials into the environment. In addition, as noted above, when uranium mills are finally decommissioned and tailings stabilized, the “passive” control systems and mandatory perpetual governmental custodian will provide control and protection for 1,000 years. CHARACTERIZATION, CERTIFICATION AND ACCEPTANCE OF ALTERNATE FEED MATERIALS CONTAINING CHARACTERISTIC HAZARDOUS WASTES General As is evident from the foregoing discussions, uranium mills such as IUC’s White Mesa Mill, can currently accept mixed wastes that contain characteristic hazardous wastes for processing as alternate feed materials.12 In order to determine whether or not a proposed mixed waste is acceptable for processing at a uranium mill it is therefore necessary to determine if the waste qualifies as an alternate feed material that may be processed at the mill. The following sections summarize the relevant characterization, certification and acceptance procedures for materials that are proposed for processing at IUC’s White Mesa Mill as alternate feed materials. Any mixed waste that satisfies these procedures and requirements may be processed and disposed of at the White Mesa Mill. WM’02 Conference, February 24-28, 2002, Tucson, AZ 11 IUC’s Acceptance Procedures for Alternate Feed Materials IUC's alternate feed recycling and disposal program involves the general procedures illustrated in Table I. Table I. IUC’s Acceptance Procedures for Alternate Feed Materials Step 1: Determine if material meets Feed Acceptance Criteria through initial screening/characterization. See FACTS described below under the heading “Characterization – IUC’s Feed Acceptanceteria Criteria for Alternate Feed Materials.” Step 2: Complete any further site or material characterization if required and complete Radioactive Materials Profile Record (“RMPR”) described below under the heading “Certification.” Step 3 Conduct initial scoping process testwork. Step 4 Finalize commercial arrangements. Step 5: Apply for routine license amendment. Typical required information includes: Site and material history Radiochemical data Material composition and volume Hazardous constituent data Transportation/logistics Special health/safety handling requirements Step 6: Arrange transport of material to White Mesa Mill. Characterization -- IUC’s Feed Acceptance Criteria for Alternate Feed Materials In addition to compliance with applicable federal and state laws, IUC is required to operate the White Mesa Mill in compliance with the conditions of its NRC License and in conformance with the environmental parameters that formed the technical basis for that License. In order to ensure that alternate feed materials conform to the environmental assumptions included in the White Mesa Mill’s License, IUC applies Feed Acceptance Criteria and Tests (“FACTS”) to alternate feeds. IUC's FACTS include Content and Volume Requirements, Physical Requirements, Analytical Requirements, and General Acceptance Requirements. A copy of IUC’s FACTS is available on IUC’s web site at www.intluranium.com. While reference should be made to the FACTS for all specific detailed acceptance criteria, generally IUC can accept and process alternate feed materials that satisfy the following requirements: WM’02 Conference, February 24-28, 2002, Tucson, AZ 12 Radionuclides Materials containing natural uranium in any form and associated daughter products From relatively low grade FUSRAP type material to very high grade materials - IUC has handled material grading over 40% U3O8 Classification of material, whether 11e(2), pre-1978 11e(2), LLRW, NORM or TENORM does not matter if it otherwise satisfies the Alternate Feed Guidance. The tailings from the processing of the alternate feed materials will always be 11e.(2) byproduct material Must contain recoverable amounts of uranium. What constitutes “recoverable amounts” of uranium must be determined on a case-by-case basis. The White Mesa Mill has processed alternate feed materials in the 0.01% U3O8 (0.0085% U) range and would consider materials that contain lower levels of uranium if the circumstances warrant. Can contain Thorium 232 and its daughter products, so long as it contains recoverable amounts of uranium Cannot accept depleted uranium, special nuclear materials or transuranics13 Mixed Waste Mixed waste that contains characteristics of hazardous waste is generally acceptable. Currently cannot accept listed RCRA hazardous waste14 Acceptable Physical Characteristics: Any non-gaseous form, e.g. soil, ore, sands, slag, liquid, slurry are acceptable White Mesa Mill can accommodate a large range of particle sizes and any moisture content White Mesa Mill can accommodate most forms of debris that are consequential to excavation activities (cement, asphalt, timbers, etc.) Other Recoverable Metals Other metals such as vanadium, tantalum, niobium, titanium, zirconium, and scandium can be recovered in certain circumstances in conjunction with uranium processing Certification If the proposed alternate feed material meets the FACTS, the generator of the materials must certify to the characterization of the materials by completing and executing a Radioactive Materials Profile Record (“RMPR”), a copy of which is available on IUC’s web site at www.intluranium.com, which includes a certification as to the accuracy of the information contained therein. WM’02 Conference, February 24-28, 2002, Tucson, AZ 13 CONCLUSION Mixed wastes that contain recoverable amounts of natural uranium and that meet the acceptance criteria discussed in this paper can be processed for the recovery of valuable uranium, alone or together with other metals, at licensed uranium mills, and the resulting tailings permanently disposed of as 11e.(2) byproduct material in the mill’s tailings impoundment. Recycling of wastes in this manner can be accomplished at costs to the generator that are less than have traditionally been charged by mixed waste disposal facilities, and in a manner that provides maximum protection to the environment and that minimizes any potential long term liability to the generator. FOOTNOTES 1 DOE has self-regulatory authority under the AEA and, indeed it has by far the largest volume of mixed waste. However, for convenience sake, references in this paper are primarily to NRC regulatory authority, as uranium mills are NRC (or the equivalent state authority) licensees. 2 See Final Position and Guidance on the Use of Uranium Mill Feed Materials Other than Natural Ores, 60 Fed. Reg. 49296 (September 25, 1995), as amended by Regulatory Issue Summary 2000-03 (Nov. 2000) (Interim Position and Guidance on the Use of Uranium Mill Feed Material Other than Natural Ores). 3 EPA can delegate authority to approved states for primacy under statutes such as the Clean Air Act and RCRA. For convenience, all references to EPA in this paper will include states with such delegated authority. 4 Under Section 274 of the AEA, a state can elect to assume the responsibilities of NRC in a number of areas, including the regulation of uranium mills and mill tailings, by becoming an “Agreement State” in those areas. For convenience, all references to NRC in this paper will include Agreement States. 5 At the present time, alternate feed materials may only contain RCRA characteristic hazardous wastes. However, recent pronouncements by NRC logically would lead to the conclusion that any type of RCRA hazardous wastes may be processed as alternate feed materials, it they otherwise meet the requirements applicable to alternate feed materials. See the discussion below under the headings “Recent Application of Alternate Feed Guidance to Permit the Processing and Disposal of Mixed Waste” and “Significance of the Recent NRC Decision on the Processing of Mixed Wastes as Alternate Feed Materials.” 6 At this time, uranium mills are not licensed to receive any materials that contain special nuclear materials or transuranics. However, the National Mining Association (“NMA”) and the Fuel Cycle Facilities Forum (“FCFF”) are preparing submissions to NRC aimed at allowing uranium mills to accept de minimus levels of these types of materials. These submissions are currently under discussion between NRC, NMA and FCFF. 7 As discussed above, so long as the alternate feed material will be processed at the uranium mill and it is reasonable to expect that uranium will be recovered from the processing, the materials will be acceptable feed materials. It is irrelevant whether or not the value of the uranium recovered justifies the cost of processing or whether or not a recycling/disposal fee is paid to the mill by the generator of the waste. 8 IUC understands that while the State of California had previously classified a lead precipitate stored in drums at the generator’s facility as hazardous waste, it had never asserted jurisdiction over the lead sulfide sludge that was stored in the ponds. Moreover, under EPA guidance, 54 Fed. Reg. 36597 (September 1, 1989), because the lead sulfide sludge materials had not been actively managed since the mid-1980’s, IUC understands that they were not subject to regulation as hazardous wastes. WM’02 Conference, February 24-28, 2002, Tucson, AZ 14 9 Prior to a uranium mill accepting alternate feed materials that contain listed hazardous wastes, NRC would have to amend its Alternate Feed Guidance to reflect this legal conclusion. No such amendment has been made by NRC to date. 10 Congress has made it clear that, in the event of a conflict between RCRA and the AEA, RCRA requirements must yield. RCRA § 6905(a) provides that: Nothing in this chapter shall be construed to apply to (or to authorize any State, interstate, or local authority to regulate) any activity or substance which is subject to … the Atomic Energy Act of 1954 except to the extent that such application (or regulation) is not inconsistent with the requirements of such Acts. 11For example, RCRA recycling guidance considers economics as a factor (although acknowledging that all mineral recovery recycling does not necessarily have to be profitable to be legitimate). NRC however, as explained supra, has determined that the economics of uranium recovery at a uranium mill are irrelevant to valid recycling as long as uranium can reasonably be expected to be (or is) extracted at a mill. 12As discussed above, the recent pronouncements by NRC logically would lead to the conclusion that NRC should amend its Alternate Feed Guidance to allow the processing of alternate feed materials that contain listed hazardous wastes. No such amendment has been made to date. 13 See note 6 Supra 14 See note 5 Supra.