DRC-1992-001041 - 0901a068807b32d4

20530 Federal Register / Vol. 57, No. 93 / Wednesday, May 13, 1992 / Notices
(20.2002) or part 61. Part 61 provides
regulations for the disposal of
radioactive waste received from others,
while § 20.302 (20.2002) allow for
disposal by a licensee of licensed
material in a manner not otherwise
authorized in the regulations.
Since the material proposed for
disposal in tailings impoundments will
be received from licensees other than
the impoundment owner, 10 CFR part 61
is the appropriate regulation for such
disposal. Disposal under § 20.302 has
been used by licensees to dispose of
their own wastes onsite. It does not
preclude disposal of radioactive waste
received from others. Section 20.2002 (in
the new part 20), however, specifically
limits disposals under that Part to
licensed material generated in the
licensee's activities, so it could not be
used for the disposals discussed in this
paper. The new Part 20 became effective
on June 20,1991, with discretion by
licensees to defer implementation until
January 1,1993 (however, the
Commission has under consideration a
proposal to change the discretionary
implementation date to January 1,1994).
Thus, in order to allow disposal of
non-lie.(2) byproduct material at a
tailings impoundment, either a part 61
review would have to be performed and
a license under 10 CFR part 61 would
have to be issued to the mill operator, or
an exemption to such a review and
license would have to be granted. The
part 61 license to allow disposal of the
non-lle.(2) byproduct material in the
tailings impoundment would be in
addition to the amendment to the part 40
license authorizing receipt of the
material.
The basic objectives of parts 40 and
61 are the same; protection of public
health and safety and the environment
by disposal that controls and isolates
the wastes for long periods of time. Part
61.6 of title 10 allows for exemptions
from the requirements of Part 61 if such
an exemption will not endanger life or
property. In order to avoid separate part
40 and 61 reviews and licenses for the
disposal of non-lle.(2) byproduct
material in tailings impoundments, an
exemption under Part 61.6 will be
granted for each such proposed
commingling that meets all of the other
requirements discussed in this analysis.
The basis for such an exemption is that
the proposed disposal will not endanger
life and property by virtue of its meeting
the criteria discussed in this analysis
(which includes demonstrating that the
reclamation and closure criteria in
appendix A to part 40 will be met).
7. Results o f Staff Analysis
NRC staff identified the following
course of action with respect to requests
for direct disposal of non-lle.(2)
byproduct material in tailings
impoundments:
1. Each proposal will be treated on its
individual merits.
2. The guidance discussed in section 5,
will be followed. Specifically, for each
such co-disposal request, the staff will:
a. Reject the request if the non-lle.(2)
byproduct material is NARM waste.
b. Determine whether the request is
for bulk material contaminated with low
concentrations of source material. If the
request is for byproduct material or
SNM, determine if there is a compelling
reason, such as an immediate health and
safety concern, to grant the request. If
so, a specific request for approval by the
Commission will be prepared.
c. Determine whether the proposed
disposal will cause significant
additional effects to public safety,
health and the environment.
d. Determine whether the proposed
disposal will compromise the
reclamation of the tailings impoundment
by determining whether compliance
with the reclamation and closure criteria
stated in 10 CFR part 40, appendix A,
will be ensured.
e. Not approve the request if the nort-
lle.(2) byproduct material contains
hazardous constituents regulated under
RCRA.
f. Notify DOE (with an opportunity to
provide comments) if the staff intends to
approve the proposed disposal.
g. The licensee must provide
documentation showing approval by the
Regional LLW Compact in whose
jurisdiction the waste originates as well
as approved by the Compact in whose
jurisdiction the disposal site is located.
3. Approval of the request will be
accomplished through an amendment to
the part 40 license of the impoundment
owner.
Part B—Position and Guidance on the Use
of Uranium Mill Feed Materials Other Than
Natural Ores
Staff reviewing licensee requests to
process alternate feed material (material
other than natural ore) in uranium mills
should follow the guidance presented
below. Besides reviewing to determine
compliance with appropriate aspects of
appendix A of 10 CFR part 40, the staff
should also address the following issues:
1. Determination o f Whether the Feed
M aterial Is Ore
For the tailings and wastes from the
proposed processing to qualify as lle.(2)
byproduct material, the feed material
must qualify as “ore.” In determining
whether the feed material is ore, the
following definition of ore must be used:
Ore is a natural or native matter that
may be mined and treated for the
extraction of any of its constituents or
any other matter from which source
material is extracted in a licensed
uranium or thorium mill.
2. Determination o f Whether the Feed
M aterial Is M ixed Waste
Note to Federal Register notice
readers: For further explanation of this
complex issue, see the discussion
section of the Staff Analysis that
follows.
If the proposed feed material were
hazardous or mixed waste, it would be
subject to EPA regulation under RCRA.
To avoid the complexities of NRC/EPA
dual regulation, such feed material will
not be approved for processing at a
licensed mill. If the licensee can show
that the proposed feed material would
not be a hazardous or mixed waste, if
not proposed for processing at the mill,
this issue is resolved.
Feed material exhibiting only a
characteristic of hazardous waste
(ignitable, corrosive, reactive, toxic)
would not be regulated as hazardous
waste and could therefore be approved
for recycling and extraction of source
material. However, this does not apply
to residues from water treatment, so
acceptance of such residues as feed
material will depend on their not being
hazardous or mixed waste. Additionally,
if proposed feed material contained a
waste listed under Subpart D (261.30-33)
of 40 CFR, it would be a hazardous
waste and should not be approved.
3. Determination o f Whether the Ore Is
Being Processed Primarily for Its
Source-Material Content
For the tailings and waste from the
proposed processing to qualify as lle.(2)
byproduct material, the ore must be
processed primarily for its source-
material content. There is concern that
wastes that would have to be disposed
of as radioactive or mixed waste would
be proposed for processing at a uranium
mill primarily to be able to dispose of it
in the tailings pile as lle.(2) byproduct
material. In determining whether the
proposed processing was primarily for
the source-material content or for the
disposal of waste, either of the following
tests can be used:
a. Co-disposal test Determine if the
feed material would be approved for
disposal in the tailings impoundment
under the guidance contained in the July
27,1988, memorandum from Hugh L.
Thompson to Robert D. Martin, or
subsequent revisions (e.g., as described
Federal Register / Vol. 57, No. 93 / Wednesday, May 13, 1992 / Notices 20531
in Part A of this notice). If it would, it
can be concluded that if a mill operator
proposes to process it, the processing is
primarily for the source-material
content. The material would have to be
physically and chemically similar to
lle.(2) byproduct material and not be
subject to RCRA or other EPA
hazardous-waste regulations, as
discussed in Part A.
b. Licensee certification test. If the
licensee certifies under oath or
affirmation that the feed material: (1) is
being reclaimed or recycled in accord
with RCRA, or does not contain RCRA
hazardous waste; and (2) is to be
processed primarily for the recovery of
uranium and for no other primary
purpose, it can be accepted.
If it can be determined, using the
aforementioned guidance, that the
proposed feed material meets the
definition of ore, that it will not
introduce a hazardous waste not
otherwise exempted, and that the
primary purpose of its processing is for
its source-material content, the request
can be approved.
NRC Staff Analysis of the Use of
Uranium Mill Feed Materials Other
Than Natural Ores
1. Introduction
The Nuclear Regulatory Commission
(NRC) and Agreement States have
received, and in some cases approved,
requests to allow a uranium mill to
process feed material that was not
natural (native, raw) uranium ore and
dispose of the resulting waste in the
facility’s tailings impoundment. In those
cases, the feed material was generally
either processing wastes from other
extraction procedures or the residues
from mine-water treatment. These
requests were handled on a case-by­
case basis, and approvals were based
on the interpretation that the proposed
feed material was refined or processed
ore. This designation of the feed
material as ore is critical to the
determination of disposal methods. This
stems from the definition under section
lle.(2) of the AEA, which limits
byproduct material origin to “ore
processed primarily for its source
material content.”
If the alternate feed material does not
meet the definition of ore, or is not
processed primarily for its source
material, there are two concerns. The
first is that complicated, dual regulation
of the tailings pile by both NRC and the
Environmental Protection Agency (EPA)
under RCRA could result. The second
concern is that the requested activity
might jeopardize the ultimate transfer of
the reclaimed tailings impoundment to
the State or Federal Government for
perpetual custody and maintenance.
During the past three years, several
additional requests for approval of
alternate feed materials have been
received. Decisions on those requests
are pending until development of a
generic agency position. The analysis
addresses the need for a definition of
the term “ore" as used in the definition
of byproduct material in the Uranium
Mill Tailings Radiation Control Act of
1978 (UMTRCA), and for criteria to
determine if mill-processing wastes from
alternate feed material will meet the
requirements for byproduct material
under a 10 CFR part 40 license.
2. Background
The UMTRCA amended the AEA to
include uranium and thorium mill
tailings and other wastes from the
milling process as material to be
licensed by NRC. Specifically, the
definition of byproduct material was
revised in section lie of the AEA by
adding:
And (2) the tailings or wastes produced by
the extraction or concentration of uranium or
thorium from any ore processed primarily for
its source material content.
Such byproduct material includes all
the wastes resulting from the milling
process, not just the radioactive
components. In addition, title II of
UMTRCA amended the AEA to
explicitly exclude the requirement for
EPA to permit lle.(2) byproduct material
under the RCRA. The definition and
RCRA exemption of lle.(2) byproduct
material contrasts significantly with the
situation for source material and low-
level radioactive waste (LLW), where
only the radioactive component is
regulated under the authority of the
AEA. EPA has to address hazardous
constituents in those materials
separately.
As a result of UMTRCA, the NRC
amended 10 CFR Part 40, to regulate the
uranium and thorium tailings and
wastes from the milling processes. Thus,
under normal operation, all tailings and
wastes in an NRC or Agreement State
licensed mill producing uranium or
thorium are classified as “lle.(2)
byproduct material,” and are disposed
of in tailings piles regulated under part
40. They are not subject to EPA
regulation, under RCRA. However, if
material that did not qualify as lle.(2)
byproduct material was placed in a
mill's tailings impoundment, any
hazardous constituents it contained
could lead to regulation by EPA.
The UMTRCA also required either the
United States, or the State in which the
byproduct material has been disposed
of, to maintain long-term custody of, and
surveillance over, the byproduct
material and the land used for its
disposal. Hie AEA currently designates
the Department of Energy (DOE) as the
Federal “custodial agency.” However,
the UMTRCA specifically referred only
to lle.(2) byproduct material, and
contains no provision allowing for the
transfer of custody or title of any other
material. While the application of
section 151(b) of the Nuclear Waste
Policy Act could mbot this issue in a
specific case, it does not provide a legal
basis for avoiding the labeling of a
tailings disposal impoundment as either
a mixed waste facility or a low-level
waste disposal facility with the complex
regulatory burdens these labels carry.
One of the purposes of the guidance is to
avoid these consequences.
The term “alternate feed materials” is
used to indicate sources of uranium or
thorium (throughout this analysis
references to uranium mills or ore
should be taken to apply to thorium
mills or ore, also), for a mill, that are not
natural ore (ore is not defined in the
AEA nor in UMTRCA). NRC staff has
approved requests, in the form of license
amendments, to allow processing of
alternate feed materials in uranium
mills. The requested license
amendments generally were to allow the
mill to use feed materials that were
either processing wastes such as those
derived through the extraction of other
elements, or the residues from mine-
water treatment.
The following are examples of license
amendments approved in the past:
1. Processing Wastes From Other
Operations
The Rio Algom (Lisbon uranium mill
in Utah has had its source-material
license amended several times in the
period from 1982 to 1987, so the mill
could receive alternate feed materials.
The mill was authorized to use
processing wastes from: a uranium
hexafluoride conversion facility, a
niobium-tantalum recovery facility, and
from an yttrium-lanthanides recovery
facility. The materials were
radiologically consistent with the
existing tailings, but, in the first
example, the fluoride was in higher
concentration (greater than one percent)
than in the existing tailings. In 1987,
NRC also authorized the Quivira Mining
Company to process raffinate sludge
from a uranium hexafluoride conversion
plant. The uranium content of these
wastes (the yttrium-lanthanides wastes
averaged 1.17 percent and the uranium
hexafluoride waste streams 0.6 to 6.7
percent) was higher than the average
20532 Federal Register / Voi. 57, No. 93 / Wednesday, May 13, 1992 / Notices
natural ore processed in the United
States.
2. Wastes From Treatment of Mine
Water
Some mines have to be dewatered as
the shafts or pits fill with ground-water.
This water often contains dissolved
constituents as a result of flow through
and contact with ore bodies. It must
therefore be treated before it can be
discharged offsite. Treatment is often
via ion-exchange columns which
concentrate high levels of uranium on
resins or the eluate. Several mills
(Western Nuclear Inc., Split Rock,
Wyoming, and Atlas Minerals Corp.,
Moab, Utah) have obtained license
amendments and processed these
residues/wastes through the mill.
The NRC staff approved the
processing of these alternate feed
materials, considering them to be
refined and processed ore.This
designation as ore is essential so that
the residue from uranium processing can
qualify as lie.(2) byproduct material for
the reasons stated earlier. With this
interpretation, the resultant milling
wastes were legitimately classified as
lle.(2) byproduct material.
However, because there is not a
definition of ore in 10 CFR Part 40 and
because of the potential policy issues
involved in approving the processing of
feed material other than natural ore, the
staff has put recent requests on hold,
pending establishment of an agency
position.
3. Discussion
Uranium mills were designed and
operated to process natural uranium-
bearing rock (i.e., ore), usually mined
nearby, in order to produce uranium (in
the form of yellowcake). There usually
was no question of other feed material
or what constituted ore. However, there
have been occasions when other
material has been proposed for
processing at uranium mills.
Mill tailings that meet the definition of
lie.(2) byproduct material must be
stabilized in accordance with the
criteria in appendix A of 10 CFR part 40,
but are not subject to separate
regulation as LLW or as hazardous
waste under RCRA. The wastes and
tailings produced in a uranium mill
processing uranium-bearing rock from
nearby mines would meet the definition
of lie.(2) byproduct material. However,
it is not obvious, from the definition
alone, whether wastes produced from
processing feed material that is
something other than rock mine from the
earth meets the definition of lle.(2)
byproduct material.
Neither the AKA nor 10 CFR part 40
contains a definition of “ore” as it
appears in the definition of lle.(2)
byproduct material. The term “unrefined
and unprocessed ore” is, however,
defined separately in part 40, in relation
to the exemption in 10 CFR 40.13(b) for
source material in ore, as:
Ore in its natural form prior to any
processing, such as grinding, roasting or
beneficiating, or refining.
The fact that the term "any ore”,
rather than "unrefined and unprocessed
ore,” is used in the definition of lle.(2)
byproduct material implies that a
broader range of feed materials could be
processed in a mill, with the wastes still
being considered as lle.(2) byproduct
material.
Legislative history confirms the
validity of a broad interpretation of the
term “any ore.” The definition of lle.(2)
byproduct material as originally
presented in UMTRCA was:
The tailings or wastes produced by the
extraction or concentration of uranium or
thorium from any source material.
However, there was a concern that
tailings resulting from the processing of
ore containing less than 0.05 percent
uranium (the minimum concentration
that would still meet the definition of
source material) would fall outside the
definition. To preclude that possibility, it
was suggested that the words "any ore
processed primarily for its source
material content” be substituted for
"any source material.”
In its decision in a case involving
whether certain material in and near the
West Chicago, Illinois, facility of Kerr-
McGee Chemical Corporation (Kerr-
McGee Corporation v. NRC, 903 F2d 1
(D.C. Cir. 1990) was lie.(2) byproduct
material or source material, the United
States Court of Appeals arrived at a
broad interpretation of the definition of
byproduct material in which the concept
of ore is not restricted to native rock. It
also cited Chairman Hendrie’s
testimony before Congress that led to
the wording that now exists, in the AEA,
defining lle.(2) byproduct material as
establishing that a broad reading of the
definition was in line with
Congressional expectations.
The previous discussion leads to the
conclusion that the term “ore” in the
definition of lle.(2) byproduct material
can be applied to a broad spectrum of
feed materials from which uranium or
thorium is extracted. In view of the
foregoing, NRC staff has recommended
a definition of ore as follows:
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.
Two major considerations that went
into this proposed definition of ore were:
1. It is broad enough to include a wide
variety of feed materials.
2. The definition continues to be tied
into the nuclear fuel cycle. Because the
extraction of uranium in a licensed mill
remains the primary purpose of
processing the feed material, it excludes
secondary uranium side-stream
recovery operations at mills processing
ore for other metals. Thus, tailings from
such side-stream operations at facilities
that are not licensed as uranium or
thorium mills, would not meet the
definition of lle.(2) byproduct material.
Although the intent of Congress in
defining lle.(2) byproduct material
appears to have been to encompass the
wastes from all feed material processed
primarily for its source-material content,
two significant issues result from the
proposed definition of ore.
Since some of the feed material could
contain hazardous components, in
addition to source material, the first
significant issue is whether material that
would otherwise have to be disposed of
as hazardous waste can be processed in
a uranium mill and disposed of in the
tailings impoundment as lle.(2)
byproduct material. If such feed material
were not processed at a uranium mill, it
would be classified as mixed waste
(radioactivity regulated under AEA, plus
hazardous waste regulated by EPA) and
would thus have to be disposed of in a
mixed waste facility.
To determine if the feed material
would be regulated as hazardous waste,
one must first determine if it meets the
definition of solid waste, since
hazardous waste is a subset of solid
waste, under RCRA. The EPA
regulations that implemented RCRA
state (40 CFR 261.1-261.4) that solid
waste is any discarded material not
excluded in the regulations and includes
recycled material. A material is recycled
if it is reclaimed. Reclaimed is defined
as,“* * * processed to recover a usable
product * * *” Since alternate feed
material would be reclaimed at the mill,
it would be considered solid waste. It
also would be classified as byproduct,
which EPA defines as, “* * * not one of
the primary products of a productive
process * * *” However, 40 CFR
261.2c(3) provides that byproducts that
exhibit only a characteristic of
hazardous waste (ignitable, corrosive,
reactive, toxic) and that are being
reclaimed are not regulated as
hazardous waste. To support the
“reclaimed” provision, it must be
demonstrated that there is a known
20533Federal Register / Vol. 57, No. 93 / Wednesday; May 13, 1992 / Notices
market for the material and
documentation provided, such as
contracts showing that a second person
uses the material as an ingredient in a
production process. An exception to this
exemption is sludge from a water
treatment plant, so residues from mine-
water treatment would not qualify.
Since feed material is being used as
an ore from which a useable product
(uranium) is to be extracted, it is being
reclaimed and thus would meet the EPA
exemption to regulation as
characteristic hazardous waste, except
if it were mine-water treatment residues.
The proposed feed material would
still be hazardous waste if it contained a
waste listed under subpart D (part
261.30-.33) of the EPA regulations. It is
unlikely that feed material for uranium
mills would contain such substances.
Assurances need to be provided that
these proposed feed materials do not
contain RCRA or TSCA listed hazardous
wastes.
Constituents with hazardous
characteristics that were in feed
materials processed at a uranium mill
would eventually end up in the tailings
impoundment as lle.(2) byproduct
material. As such, they would be
regulated under appendix A of 10 CFR
part 40 which provides for monitoring
and control of hazardous constituents.
Thus, the ultimate fate of hazardous
constituents that might be in uranium
mill feed material would not escape
regulatory oversight.
The second significant issue that must
be addressed is the potential of
converting material that would have to
be disposed of as LLW or mixed waste
into ore, for processing and disposal as
lle.(2) byproduct material. The
possibility of converting such wastes to
lle.(2) byproduct material can be very
attractive to owners of such material.
This is because of the high cost of
disposing of LLW and especially of
mixed waste. An owner of such material
could pay a mill operator substantially
less to process it for its uranium content
and dispose of the resulting lle.(2)
byproduct material than to dispose of
the material as waste at an appropriate
facility. Utah officials have already
expressed concern over "sham disposal"
(i.e., converting a mill into a LLW
disposal site).
The proposed definition of ore would
include any material from which source
material is extracted in a licensed mill
and would thus seem to allow such
sham disposals. However the definition
of lle.(2) byproduct material requires
that the ore be processed "* * *
primarily for its source material
content" and thus would not permit such
sham disposals. Material that was
processed primarily to convert what
would have been LLW or mixed waste
into lie.(2) byproduct material would
not meet the definition of lle.(2)
byproduct material.
Therefore, as part of its review of a
licensee proposal to process material
other than natural ore, the staff would
have to determine whether the
processing was primarily for the source-
material content or for the disposal of
waste. This determination would have
to be made on a case-specific basis, but
either of the following tests can be used:
1. Co-disposal test: If the feed material
would be approved for disposal in the
tailings impoundment, under the
guidance contained in the July 27,1988,
memorandum from Hugh L. Thompson
to Robert D. Martin, or subsequent
revisions, it can be concluded that if a
mill operator proposes to process it, the
processing is primarily for the source-
material content. The material would
have to be physically and chemically
similar to lle.{2) byproduct material and
not be subject to RCRA or other EPA
hazardous-waste regulations, as
discussed in this notice.
2. Licensee certificate test: If the
licensee certifies under oath or
affirmation that the feed material: (1) is
being reclaimed or recycled in accord
with RCRA, or does not contain RCRA
hazardous waste; and (2) is to be
processed primarily for the recovery of
uranium and for no other primary
purpose, it can be accepted.
4. Results o f Staff Analysis
The staff has determined to issue
guidance on the definition of ore and on
the issues related to feed material that
could be considered waste. Although
Agency guidance does not carry the
weight of a regulation, the staff
concludes that the time and resources
required for rulemaking on the definition
of ore would not be justified in this
instance. There are only a few mills that
are in active or standby status and that
would be able to process alternate feed
material, and it is estimated that the
Agency would receive only one or two
such requests a year. However, the staff
will include the definition of ore the next
time amendments to 10 CFR Part 40 are
proposed.
Issuance of the guidance would also
assist Agreement States. As a policy, the
Agreement States are not required to
adopt this guidance as a matter of
compatibility. However, if an Agreement
State implements a similar policy, the
State will have some assurance that
NRC will not question its policy in
program reviews and in making the
determination as required in 10 CFR
150.15a(a) prior to the State terminating
the license.
D a te d a t R o ck v ille , M a ry la n d , th is 7th d ay
o f M ay 1992.
For the Nuclear Regulatory Commission.
John Surmeier,
C hief Uranium Recovery Branch, D ivision o f
Low-Level Waste Management and
Decommissioning, O ffice o f Nuclear M aterial
Safety and Safeguards.
[FR D o c. 9 2 -1 1 2 1 5 F ile d 5 -1 2 -9 2 ; 8:45 am ]
BILLING CODE 7490-01-M
[Docket No. 50-416]
Entergy Operations, Inc.; Notice of
Consideration of Issuance of
Amendment to Facility Operating
License, Proposed No Significant
Hazards Consideration Determination,
and Opportunity for Hearing
The U.S. Nuclear Regulatory
Commission (the Commission) is
considering issuance of an amendment
to Facility Operating License No. NPF-
29, issued to Entergy Operations, Inc.
(the licensee), for operation of the Grand
Gulf Nuclear Station, Unit 1, located in
Clairbome County, Mississippi.
The proposed amendment would
increase the trip setpoints of four circuit
breakers for the suppression pool
makeup (SMPU) valves.
In response to NRC Generic Letter 89-
10, the licensee has identified the need
to replace four valve actuators for the
SPMU valves with larger actuators.
During the design change process, it was
determined that the required larger
valve actuator motors would require
circuit breakers with higher trip
setpoints. These trip setpoints are
specified in the Technical Specifications
(TS), and the licensee must request a TS
change to permit the use of the higher
trip setpoints. Allowing for the standard
30-day Federal Register notice would
delay approval of the requested change
beyond the scheduled end of the current
refueling outage. The staff concludes
that the licensee has provided an
acceptable basis for its request and that
exigent circumstances exist.
Before issuance of the proposed
license amendment, the Commission
will have made findings required by the
Atomic Energy Act of 1954, as amended
(the Act) and the Commission’s
regulations.
The Commission has made a proposed
determination that the amendment
request involves no significant hazards
consideration. Under the Commission's
regulations in 10 CFR 50.92, this means
that operation of the facility in
accordance with the proposed