Prior to the development of atomic weapons, the primary use
for radioactive ores was for extraction of radium and vanadium. Numerous mining and milling waste sites
still exist in the west remaining from radium and vanadium recovery.
The primary use of these ores changed
when the Manhattan Engineer District (MED) was established in 1942 to develop
nuclear materials for national security under jurisdiction of the U.S. Army
through the first War Powers Act. From 1942 to1946, numerous contractors and several hundred
subcontractors were involved in the production, research, and development
operations at sites were federally, privately, or institutionally owned while
AEC continued the practice of contracting the actual operations.
The urgency and
magnitude of the war effort limited outside knowledge of radioactive
characteristics of uranium ore and processing residual such that many of these
sites became contaminated with radioactivity as a result of work done for the
government. Many
MED-generated wastes were from imported ore and reprocessed vanadium tailings
(today classified as TENORM) obtained before and during WWII. When MED was deactivated, its
responsibilities were transferred to the Atomic Energy Commission (AEC) by the
Atomic Energy Act of 1946.
AEC
also set out to develop a domestic uranium industry that included mining and
milling. Uranium mills were built
by private industry and operated under contract with the AEC. The mills were guaranteed sales of
uranium concentrate by the AEC contracts.
A distinction was made between those sites that processed uranium and
thorium for sale to the U.S. Government as opposed to other operations where the
government already owned the ore. Literally thousands of mine sites also exist
across the west.
UMTRA
The AEA, passed in 1946, and revised in 1954 and 1978, did not
define and regulate 11e.(2) materials until 1978. Under the
revised AEA, the definition of byproduct material was extended with the creation of
11e.(2) byproduct material to bring all processing wastes from the primary recovery of
uranium or thorium under
regulatory control. Wastes
processed for constituents other than uranium or thorium (such as radium or
vanadium) are called non-11e.(2) byproduct materials, even though their
composition is very similar to 11e.(2) materials.
Inactive sties (those with no
NRC license) were administered by DOE under Title I of UMTRCA. The 24 inactive
sites included thousands of contaminated vicinity properties. Sites with an
active NRC or Agreement State license fell under Title II of UMTRCA.
EPA promulgated generally applicable cleanup standards for Title I and
standards for Title II sites of the UMTRA program at 40 CFR 192, in 1983.
Standards for Title II sites differed from Title I requirements in that
groundwater protection standards, designed to be equivalent in protection to the
RCRA groundwater standards, were included. Final groundwater standards were not
published until 1987, were revised in 1996 to allow for alternate
concentration limits (ACLs) and cover radiological and non-radiological hazards
of uranium mill tailings.
The scope
of UMTRCA was narrowly defined to only address sites and affected vicinity
properties at which substantially all the uranium was produced for sale to the
U.S. Government. DOE is the long-term custodian and licensee of UMTRA
facilities.
Until recently, Federal
law was interpreted such that it does not preempt exercise of non-agreement state authority over the
non-radiological aspects of 11e.(2) material (uranium mill tailings). So, non-radiological components of
wastes (this is applied generally to groundwater) can be regulated by the
states. NRC further contended that
states have concurrent jurisdiction since the states regulate NORM, including
the non-radiological components. States
have the ability to take over the sites after license termination, which NRC
interpreted to imply that states have an independent authority over the wastes.
To avoid dual regulation, the definition of hazardous wastes and hazardous
substances under RCRA exclude source, byproduct, or special nuclear material.
Given that the radiological component of these wastes are part of a larger waste
stream, such as tailings that contain heavy metals and groundwater, it was
decided that the whole stream be regulated under one umbrella regulation rather
than having dual regulation over different parts of the waste stream, as happens
in other situations. EPA has authority to regulate radioactive materials not
covered by the AEA, as well as the non-radiological components of non-11e.(2)
wastes.
States role
The 1954 AEA did not define any specific role for the states. In 1959
Section 274 was added to define the state's role and to provide a statutory
basis under which the federal government could relinquish portions of its
regulatory authority to the states. These amendments made it possible for the
states to license and regulate byproducts, source materials, and small
quantities of special nuclear materials. In general, states are taking the lead
in regulating disposal of NORM, but the effort is focused primarily on
industrial wastes from non-nuclear industries, not legacy wastes from MED and
other weapons and nuclear power programs.
NRC regulations addressing the licensing of byproduct material are found at
10 CFR Part 40. Specific requirements for 11e.(2) byproduct material are found
in Appendix A of Part 40. Disposal of radioactive material is addressed under 10
CFR 61. To comply with NRC requirements for Agreement State status, the
Agreement States must conform to strict controls on radiological and
non-radiological components of 11e.(2) byproduct materials. Non-agreement
states, however, had concurrent jurisdiction over the non-radiological
components through ground water protection programs, and state hazardous waste
laws. However, lobbying from the National Mining Association has resulted
in a change to that policy. The US NRC has made a determination that they have
authority over radiological and non-radiological components of wastes at mill
tailings sites.
FUSRAP
In 1980, Congress
authorized FUSRAP as a project and directed DOE to initiate cleanup. There were
46 identified sites in 14 states and 309 vicinity properties that were estimated
to have 2.3 million cubic yards of soil and debris that required removal or
other management.DOE determined
that FUSRAP wastes qualify as 11e.(2) byproduct material.Two of the sites, Maywood and Colonie,
were not MED sites, but were added by Congress.
FUSRAP sites did not qualify under UMTRA because the uranium and
thorium processed at these sites was generally owned by the government. No
FUSRAP facilities were at any time licensed for conducting the MED/AEC
activities because many were either in operation before licensing requirements
were established or were excluded from licensing requirements pursuant to
Section 110 of the AEA. This authority covers the radiological as well as the non-radiological
(hazardous) components, a unique situation.
By 1995, 22 FUSRAP sites and 175 vicinity properties had been cleaned up
under DOE oversight. DOE estimated that the completion of the program would cost
an additional $2.5 billion and extend the program until 2016. The House
Appropriations Energy and Water Subcommittee recommended moving the program to
the Corps of Engineers. The FY 1998 Energy and Water Appropriations Bill
transferred management of FUSRAP to USACE beginning in FY 98.
The Corps of Engineers and FUSRAP
On October 15, 1998, the Natural Resources Defense Council (NRDC) petitioned
the NRC to exert authority to ensure that the USACE handling of radioactive
materials in connection with FUSRAP is effected in accord with properly issued
license and all other applicable requirements.
NRC forwarded the petition to
both USACE and DOE for review and comment. On April 5, 1999, in response to the
NRDC request, the NRC determined that it lacks the authority to license the
USACE's FUSRAP activities.
Guidance for
Disposal
Prior to the implementation of the
revised 10 CFR 20 in 1996, the 1981 Branch Technical Position (BTP) addressed
four options for disposal of uranium and thorium wastes (USNRC 1981).
1992 Staff Guidance
The next guidance about
non-11e.(2) byproduct material appeared in the Federal Register in 1992 (NRC
1992). There were four
requirements:
1. Disposal could not have significant additional effects on public safety
and health, and the environment,
2. Disposal had to comply with the reclamation and closure criteria set
forth in 10 CFR 40, Appendix A,
3. Disposal could not result in the tailings pile becoming subject to RCRA
or CERCLA, or
4. DOE or the state had to agree to take title to the site upon completion
of reclamation.
1995 Staff Guidance
NRC subsequently published
“Final Revised Guidance on Disposal of non-AEA 11e.(2) Byproduct Material in
Tailings Impoundments; Final Position and Guidance on the Use of Uranium Feed
Materials Other Than Natural Ores” on September 22, 1995 (USNRC1995).NRC
listed ten criteria that had to be met for disposal of non-11e.(2) material.It should be noted that NRC defined
‘‘non-11e.(2) byproduct material’’ as “...simply an encompassing term
for source, special nuclear, and 11e.(1) byproduct materials.”It kept the first four criteria,
but then expanded on them.
1. Disposal of material similar to 11e.(2) will be conducted under Part 40,
2. Radioactive material not authorized under the AEA shall not be authorized for disposal in
an 11e.(2) byproduct material impoundment (NARM or NORM excluded because of NRC
authority issue).
3. Special Nuclear Material and 11e.(1) byproduct material should not
be considered as candidates without compelling reasons to the contrary. Specific proposals should be prepared.
4. The licensee must demonstrate that the material is subject to
applicable RCRA or other EPA standards for hazardous or toxic wastes.
5. No CERCLA disposal issues,
6. No significant environmental impact from disposal
7. Will not compromise reclamation of the tailings impoundment by
demonstrating compliance with appendix A of 10CFR40
8. Must show concurrence from regional compact from where waste
originates as well as where its being disposed.
9. Concurrence and commitment from either DOE or the State to take
title to the impoundment after closure must be received before granting the
license amendment.
10. The mechanism to authorize disposal of non-11e.(2) byproduct material in
a tailings impoundment is a license amendment under 10 CFR Part 40.
An exemption to the requirements of 10
CFR Part 61 must be granted. If the disposal impoundment is in an Agreement State with low-level licensing
authority, the State must take appropriate action to exempt the non-11e.(2)
waste from regulation as low level waste.
Final Position and
Guidance on the Use of Uranium Mill Feed Material Other Than Natural Ores
1. Feed material must qualify as ore under the following definition:
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. No listed hazardous waste.
3. The waste must be processed primarily for its ore content. There are two tests to pass:
a) If the material would qualify for co-disposal without processing, then it can be
assumed that the operator is reprocessing for the ore content; and
b) the
licensee must certify under oath.
The purpose of the ten criteria was to prevent
“commingling“ of mill tailings with non-11e.(2) materials in tailings piles
in order to prevent a mixed-waste situation. This would cause dual regulation by either EPA or a state,
which may keep DOE from taking long-term custody of the wastes.
The revised definition of ore may allow
disposal of many types of NORM wastes into the 11e.(2) through reprocessing.
The mining lobby argued that the criteria were too restrictive, and keeping the
alternate feed policy and codisposal from being utilized to its potential.
In fact, NMA proposed to open the tailings piles to SNM through a generic
license amendment framework that would list conditions needed to be met so that
a review wouldn't be required every time a new waste was proposed for
processing. Such a framework, under current law, would allow a pile to be a
low-level waste site and an UMTRA site, with complex regulatory
requirements.
It is questionable whether DOE could or would want to take title, thus,
leaving the license in a condition where it cannot be terminated. Additionally,
states can impose groundwater standards up the boundary of the pile for
hazardous and non-hazardous properties that may be much stricter than NRC. The
revised definition of ore may allow disposal of all types of NORM wastes into
the 11e.(2) through reprocessing.
10CFR41 rulemaking
These changes in policy over the years have created
a situation that is at odds with the NWPA, state regulations, other federal
agencies, environmental and local groups, and has resulted in political and
industry pressure to resolve the issue. The
NRC decided to start preliminary scoping of the need for a new 10 CFR
Part 41 addressing the licensing or uranium and thorium recovery facilities,
partly because of the in-situ leach method of uranium recovery, which is not
adequately covered under current rules. However, now the NMA has decided
that maybe the rulemaking wouldn't be desirable after all since there are so
few licensees and the cost of rulemaking through licensees would be burdensome
on the licensees. This of course doesn't recognize the millions realized
by the few licensees for disposal of material in their cells. As
discussed below, this rulemaking was killed.
There were basically four regulatory areas for NRC to reassess in the rulemaking
that are now still not completely resolved:
1. Jurisdiction of
nonagreement states over nonradiological components on 11e.(2) byproduct
material (concurrent jurisdiction),
2. NRC
jurisdiction over in-situ leaching facilities,
3. Disposal
of non-11e.(2) byproduct material in tailings impoundments,
4. Use of alternate feed.
Concurrent Jurisdiction
NRC agreed that it will not terminate any site-specific license until the
site licensee has demonstrated that all issues with the state regulatory
authorities have been resolved. According to NMA, the NRC's failure to
assert Federal preemption over all components of 11e.(2) byproduct material is
leading to the very thing that the staff says should be avoided, that is
non-Agreement State review of NRC approved reclamation plans. In January
2001, NRC changed its policy and has declared it does have authority over
non-radiological components and will change policy to match the NMA
request.
A staffer pointed out that dual regulation can work, there are times where
it is productive. Under a recent Supreme Court ruling, EPA does not have
regulatory authority over byproduct material under the CWA. Clearly, there is a
discrepancy in policy and ruling.
ISL Facilities
Pre-AEA milling for the most part did not involve in-situ leaching.
NRC responded to the NMA white paper by making decisions about ISL wastes in
that portions are 11e.(2) byproduct material.
Co-disposal of non-11e.(2) byproduct material in tailings impoundments
10CFR40 App A, Criterion 5, has design requirements calling for liners,
however many NRC tailings cells were built before this requirement passed, so
many are not in compliance. Additionally, Subtitle C calls for leachate
collection systems and double liners, not a requirement of Appendix A.
It is not clear what types of containerization would be required for various
wastes. Nor is it clear what responsibility the generator will have in properly
characterizing the waste coming into the facility. How is the waste
characterized, and does there need to be some verification of the
characterization (and classification). Is the groundwater monitoring program at
these facilities adequate? (Utah is requiring IUC to get a permit).
The DOE wants congressional direction (legislation or guidance) before there
are any actions that increase the burden on DOE. Allowing material that is
chemically and radiological (sic) similar to byproduct material to be placed in
the tailings pile is a reasonable thing to consider, however, DOE does not want
to get into a problem with dual regulation.
NMA issued an addendum to its White Paper in August, 1999 encouraging
NRC to recognize Pre-1978 byproduct materials as 11e.(2) byproduct material, and
that pre-1978 byproduct material at FUSRAP sites (or other DOE sites) become
subject to licensing and regulation by NRC if disposed of at a non-DOE facility.
NRC’s alternate feed policy
Recent changes in
USNRC policy on feedstocks for uranium mills has led to a series of reprocessing
of industrial waste streams from non UMTRA sites to recover uranium. The wastes from these reprocessed
materials are being disposed of in UMTRA disposal cells.
Some of
the issues raised in the NRC hearings include:
1) When originally
proposed in 1994, the guidance was trying to prevent processing of radioactive
waste that would have to be disposed of primarily in a low level waste facility,
simply to change its classification from low level waste to 11e.(2) byproduct
material. That is how sham recycling was defined. "Primarily processed
for" meant was the waste being processed really to get uranium out, or is
it processed to change the definition of what the waste is? The Presiding
Officer in a 1999 hearing interpreted "primarily" to mean merely that
the licensee actually did run the feed through the mill and did extract uranium
from that material without regard for the financial benefit that accrued from
removal of that uranium.
There is also the
direct disposal test in that if the material meets the proposed classification
as being able to classified as 11e.(2) by definition, then it could be directly
deposited in the cell without processing such that if they do process the waste,
it must be for the purpose of recovering the uranium. A third issue is that the
revised guidance also proposed a performance-based amendment whereby the
licensees wouldn't have to come back to staff every time they wanted to process
alternate feed material. They would have to assess the material that they are
considering to run through the mill to whether it is reasonable to process it
for its uranium content. An opposing view is: "From a policy basis, from a
citizen's perspective, performance-based licensing poses great concern because
what it does is that it significantly reduces the accountability of a licensee
to the public, and also the public's ability to participate in the
decision-making process, because, in general, it involves making very, very
broad prescriptions in the license and then allowing the licensee to make
changes as it goes along in the operation of the facility without providing the
kind of public notice and decision-making process that is usually provided in
the license amendment cases. So that as a practical matter, the public is
effectively excluded from being an effective participant in this decision-making
process which may have significant impacts on the health of the safety of the
citizens surrounding these facilities."
A NRC staffer
noted that uranium ore at a few tenths of a percent yield several pounds of
uranium per ton, whereas soil containing 0.37 Bq/g (10 pCi/g) (a typical cleanup
level) uranium is a pound per 34 tons. This example was brought up to show the
lack of economic validity the process can have. Uranium is selling for less than
$15.00 a pound, yet the mills can charge thousands of dollars per ton for
disposal. Mock mills may spring up. If a mill operator only is
making pennies per ton on the value of the uranium in the ore, but is making
hundreds of dollars a ton for disposal, the mill efficiency becomes irrelevant,
then one gets the question of what is a mill. What the essence of the
problem is that the mill becomes a low level waste facility that is not licensed
under Part 61.
NRC staff
issued recommendations in November, 1999 with respect to licensing of source
material below 0.05%.
RIS November 2000.
At the same
time that the Part 41 rulemaking was killed, NRC revised the guidance one more
time. The criteria are basically the same, with the caveat that EPA and
DOE be consulted before co-disposal in UMTRA cells to preclude concurrent
jurisdiction over material in the pile that may jeopardize long term
stewardship.
More to follow!
Stay tuned, as this portion of the site is still "Under Construction"
