Radioactive Mine and
Low-Level Radioactive Waste
  Regulation In The 21st

        Anthony J. Thompson
    ShawPittman, Washington, D.C.
I.   INTRODUCTION - Are Existing And Past
     Uranium Recovery (UR) And LLRW Regulations
     Prologue For Future Radioactive Mine Waste
  Some Mine Wastes Are Similar To Waste
   Produced From UR Milling Operations;
  While Mine Wastes Are Currently Regulated By
   The States, Some Have Suggested Regulating
   Radioactive Mine Waste In A Similar Fashion
   To Uranium Mill Tailings;
  UR, LLRW And NORM Regulatory Proceedings
   And Requirements Provide A Working,
   Changing, Real-life Laboratory To Evaluate
   Potential Future Regulatory Developments.
          Introduction Cont’d

 Four Entities That Impact UR Recovery,
 LLRW, and NORM Regulation Include
   NRC
   EPA
   DOE
   Interstate Compacts
 We Address Each Below.


 Uranium Recovery (UR) Operations Regulatory
 Low Level Radioactive Waste (LLRW)
  Regulatory Program.

     Nuclear Regulatory Commission
              (NRC) Cont’d

A. The UR Operations Regulatory Program
1.     NMA Issued White Paper On UR
       Regulation In 19981-- Examined Key
       Elements of NRC’s Regulatory
       Program For UR, And Proposed
      Goal Of White Paper: Establish A Rational,
      Coordinated Framework For Regulation Of
      UR Activities.
   Nuclear Regulatory Commission
            (NRC) Cont’d

 NMA’s White Paper Addressed The
 Following Issues:
   Concurrent State/NRC Jurisdiction Over Non-
    Radiological Components of Byproduct Material;
   NRC Regulation of ISL Activities (not discussed);
   Direct Disposal of Non-11e.(2) Byproduct Material
    in UR Tailings Disposal Facilities;
   Use of Alternate Feeds at Licensed UR Mills.

   Nuclear Regulatory Commission
            (NRC) Cont’d

 Concurrent Jurisdiction Issue: Do Non-
 Agreement States Exercise Concurrent
 Jurisdiction Over Non-Radiological
 Aspects of 11e.(2) Byproduct Material?
   1980 NRC Staff Position:2 “Yes”
   Position Developed Just After Passage of
    UMTRCA, When Expansive New Statutory
    Authority Not Well Understood and
    Regulatory Program in Infancy.
   Nuclear Regulatory Commission
            (NRC) Cont’d

 Practical Implications of Concurrent
   Dual Federal/State Regulation -- Resulting
    in Sub-Optimized Disposal Requirements;
   Delays in Site Closure As Licensees
    Attempt to Satisfy Different, Sometimes
    Inconsistent Sets of Requirements;
   Reluctance of DOE to Assume Custody
    Following Site Closure. 3
   Nuclear Regulatory Commission
            (NRC) Cont’d

 White Paper Arguments:
   UMTRCA Establishes a Pervasive Federal
   Scheme of Regulation Over Both
   Radiological and for the First Time Non-
   Radiological Aspects of 11e.(2) Byproduct
   Concurrent Jurisdiction Conflicts With The
   Statute And Frustrates Congress’ Purpose
   Of Ensuring Timely Disposition of Tailings
   Under Uniform National Standards.
   Nuclear Regulatory Commission
            (NRC) Cont’d

 In August 2000, NRC Adopted the
 Position Advocated in NMA’s White
 Paper, Voting to Assert Exclusive
 Jurisdiction Over Both Radiological and
 Non-Radiological Aspects of 11e.(2)
 Byproduct Material.4

   Nuclear Regulatory Commission
            (NRC) Cont’d

 Direct Disposal of Non-11e.(2) Byproduct
 Material In Uranium Mill Tailings
   Sound Policy Due To Limited Capacity for
    High Volume, Low Activity Wastes;
   Current NRC Policy Creates Numerous
    Hurdles Licensees Must Overcome, Making it
    Nearly Impossible to Dispose of Non-11e.(2)
    Material in Tailings Impoundments. 5
   Nuclear Regulatory Commission
            (NRC) Cont’d

 NMA White Paper Proposed Several
  Modifications to NRC’s Non-11e.(2)
  Disposal Policy, To Facilitate Use of
  Tailings Impoundments For Disposal of
  High Volume, Low Activity Wastes
  Similar to Uranium Mill Tailings.
 Commission Directs Staff to Look at
  Liberalizing Policy.6

   Nuclear Regulatory Commission
            (NRC) Cont’d

 Processing Alternate Feeds At Uranium
 Mills. The Concept: Wastes Containing
 Uranium Can Be Processed Through a
 Mill To Recover Their Uranium Content,
 And the Resulting Tailings and Wastes
 Can Be Disposed Of As 11e.(2)
 Byproduct Material.7

   Nuclear Regulatory Commission
            (NRC) Cont’d

 Disposal As 11e.(2) Byproduct Material
 Effectively Eliminates Long Term
 Contingent Liability For the Generator of
 the Alternate Feed (e.g., Liability Under
 Superfund). Title to the Waste Passes
 to Long Term Government Custodian,
 which is Subject to Perpetual NRC

   Nuclear Regulatory Commission
            (NRC) Cont’d

 Under UMTRCA, Material Must be
 Processed “Primarily” for its Source
 Material Content to Generate 11e.(2)
 Byproduct Material.
 Commission Has Ruled That “Motive” of
 Licensee for Processing to Obtain
 Disposal or Recycling Fee Does not
 Disqualify a Material from Being Used
 as an Alternate Feed.8
   Nuclear Regulatory Commission
            (NRC) Cont’d

 As Long as Uranium Will Be Recovered
 From Alternate Feed Material, “Sham”
 Processing is Not an Issue.
 Disposal/Recycling Fees Make It
 Economically Feasible For Mills to
 Process Alternate Feeds -- Now
 Impossible For Conventional Ores.

    Nuclear Regulatory Commission (NRC)
    NRC Authority to Regulate Tailings And Wastes
     Generated Prior to 1978 -- i.e., “Pre-1978
     Byproduct Material”: 9
      NRC Has Flip-Flopped Position On Jurisdiction Over
       Pre-1978 Byproduct Material;
      NRC Previously Asserted Such Material Was Subject
       to Regulation As 11e.(2) Byproduct Material, and
       NRC Authorized Disposal in 11e.(2) Facilities.
      More Recently, NRC Has Allowed Pre-1978
       Byproduct Material To Be Disposed of in RCRA
       Facilities, Asserting That the Material Is Not Subject
       to AEA Regulation as 11e.(2) Byproduct Material.
   Nuclear Regulatory Commission
            (NRC) Cont’d

 As a Result of its Flip-Flops, NRC Has
 Created a Commingled Waste Problem;
 11e.(2) Byproduct Material Has Been
 Commingled With Non-11e.(2) Wastes:
   Problems With Dual Jurisdiction;
   Questions Regarding DOE’s Willingness to
    Take Custody Following Site Closure;
   Contrary to NRC’s Non-11e.(2) Disposal
    Nuclear Regulatory Commission
             (NRC) Cont’d
 This Issue Has Raised the Profile of Risk-
  Informed Regulation in Congress (i.e., Wastes
  Posing Similar Risks Should Be Treated in a
  Similar Fashion). 11
 To Do So Would Require Major Changes in the
  Current Rules Because AEA and RCRA are
  Definitionally Based (e.g. NORM mine waste can
  be virtually identical to 11e.(2) waste, yet is
  definitionally different; Same for Listed Versus
  Characteristic Hazardous Waste.)
   Nuclear Regulatory Commission
            (NRC) Cont’d

2. Alternate Concentration Limits (ACLs)
 Under NRC’s Regulations Hazardous
  Constituents in Groundwater From Tailings
  Disposal Sites Must Fall Within Specified
  Limits at a Designated ”Point of Compliance”
 The Standard Limits That Must be Achieved
  are Maximum Contaminant Levels ("MCLs"),
  Background, Whichever Is Higher;

   Nuclear Regulatory Commission
            (NRC) Cont’d

 Or, the Regulations Allow the Licensee to
  Propose ACLs for One or More Relevant
 ACLs Must Adequately Protect Human Health
  and Environment at the “Point of Exposure”
  (POE), Defined as the Location(s) at Which
  Humans/Wildlife Reasonably Likely To Be

    Nuclear Regulatory Commission
             (NRC) Cont’d
3. Alternatives
   Alternatives to NRC Requirements for Disposal of 11e.(2)
    Byproduct Materials.
      “A licensee may propose alternatives to specific requirements
         [which]…may take into account local or regional conditions.” 13
        These alternatives will be satisfactory if such alternatives:
           “will achieve a level of stabilization and containment of the
            sites concerned” and;
           “a level of protection for public health, safety, and the
            environment from [the site]”;
           “which is equivalent to, to the extent practicable, or more
            stringent that the level which would be achieved by
            standards and requirements adopted and enforced by the
            Commission or EPA for the same purpose”.

     Nuclear Regulatory Commission
              (NRC) Cont’d

4.    Supplemental Standards:
 EPA’s Regulations at 40 C.F.R. Part 19214
  Establish Groundwater Concentration Limits
  for Various Contaminants at “Inactive” (Title
  I) Uranium Mill Sites;
 These Standards Allow for Natural Flushing
  and Institutional Controls If Active
  Remediation Is Not Appropriate.

   Nuclear Regulatory Commission
            (NRC) Cont’d

 When Restoration Of Groundwater To The
 Limits Established In The Regulations Is
 Technically Impracticable, or When the
 Groundwater Cannot Be Used For Drinking
 Because Of Background Conditions,
 Supplemental Standards May Be Applied; or

   Nuclear Regulatory Commission
            (NRC) Cont’d
 If Achieving The Standards Set Out In
 The Regulations Would Result in More
 Harm Than Good.
 Supplemental Standards Must:
     Assure Protection of Human Health And the Environment;
     Preserve Current And Projected Groundwater Uses.

 Supplemental Standards as an
 “Alternative” at a Title II Site.15

     Nuclear Regulatory Commission
              (NRC) Cont’d

B. Low Level Radioactive Waste

1.   NRC Decommissioning & Decontamination
 1988 NRC Regulations Defined
  Decommissioning to Mean “to remove
  nuclear facilities safely from service and to
  reduce residual radioactivity to a level that
  permits unrestricted use and termination of
  the license.” 16

    Nuclear Regulatory Commission
             (NRC) Cont’d
 1993-1994 Concerns About the Pace and Quality of
   facility decommissioning and decontamination (D&D)
   efforts involving NRC, EPA, DOE, DOD and states led
   to generic regulatory inquiries to determine:
     Who must pursue D&D;
     To what level and by what means;
     When D&D should or must take place;
     How much waste will be generated by D&D;
     What are the conditions for control or disposal
       of such waste.
   Nuclear Regulatory Commission
            (NRC) Cont’d

 1994 - NRC’s Timeliness in Decommissioning
  rule issued requiring licensed facilities (or
  portions thereof) that have not been used for
  licensed activities for 24 months must begin
  the D&D process or seek a waiver. 17

   Nuclear Regulatory Commission
            (NRC) Cont’d

 1994 - NRC proposes “Radiological Criteria
  For License Termination”   18

    Risk limit (15 mrem/y) Plus ALARA
       (which=s 3 mrem/y);
      Risk goal (e.g. Like an MCLG);
      Best efforts (e.g. BACT);
      Return to background;
      Possible separate groundwater standard.

   Nuclear Regulatory Commission
            (NRC) Cont’d
 1997 NRC issues final D&D regulations 19
    25 mrem/y for all pathways risk limit for
     1,000 years plus ALARA for unrestricted
    A tiered system allowing sites to be
     released for restricted use under certain
     conditions (e.g.. durable institutional
     controls (ICs) that can reasonably be
     expected to be effective into the
     foreseeable future; financial assurance; a
     100mrem/y fail safe cap if ICs fail;
   Nuclear Regulatory Commission
            (NRC) Cont’d

 Costs (including environmental
  impacts) of unrestricted use of would
  be unreasonable; and,
 Must Consult with potentially affected
  and/or interested members of the

    Nuclear Regulatory Commission
             (NRC) Cont’d
 Alternative criteria for license termination other
  than in compliance with the 25 mrem/y limit
  (i.e. reasonable assurance that dose to
  members of the critical group will not exceed
  100 mrem/y based on comprehensive risk
  analysis; ICs to restrict site use, ALARA,
  detailed public involvement).
 An exception for up to 500 mrem/y in “ unusual
  site specific circumstances” if approved by the
  Commission and verification of ICs every five

   Nuclear Regulatory Commission
            (NRC) Cont’d

 Restricted Use and ICs
    NRC D&D regulations 21 - Stringent ICs,
      “such as legally enforceable deed
      restrictions” and/or engineering controls
      backed by government ownership should
      be established” “with the objective of
      lasting 1,000 years.”
          ICs and controls or barriers that
            restrict access to the site to limit
            potential exposure (e.g. industrial
            versus residential use or industrial
            versus domestic groundwater use).
Nuclear Regulatory Commission
         (NRC) Cont’d
 NUREG 1727 (September, 2000) Chapter
  16.0 “NMSS Decommissioning Standard
  Review Plan” sets forth restricted use
  criteria and durable ICs (e.g., legal
  opinion regarding enforceability of IC
  under particular state law). 22

 Nuclear Regulatory Commission
          (NRC) Cont’d
 “Institutional Controls: A Site Manager’s
  Guide to Identifying, Evaluating and
  Selecting Institutional Controls at
  Superfund and RCRA Corrective Action
  Changes” (September 29, 2000); 23
    Non-engineered instruments such as
      administrative and/or legal controls
      that minimize the potential for human
      exposure from contamination by
      limiting land or resource use;

Nuclear Regulatory Commission
         (NRC) Cont’d

 Even in the unusual case where a CERCLA
  Record of Decision (ROD) only requires
  implementation of ICs, it is considered to
  be a ‘limited action’, not a ‘no action’
 Informational devices (Deed Notations)
  are most likely to be used as a secondary
  “layer” to help insure the overall reliability
  of other ICs.

Nuclear Regulatory Commission
         (NRC) Cont’d

 “Protecting Health and Safety with
  Institutional Controls, Larry Snapf, NR&E
  “(Spring 2000)”. 24
 Thus, it is important that the instrument
  creating the institutional control identify
  the party who will have the right to
  enforce the restrictions and be responsible
  for maintaining and repairing the controls.

    Nuclear Regulatory Commission
             (NRC) Cont’d
   Responsibilities of the enforcer may include:
     Making periodic site inspections to ensure
      that prohibited activities are not taking
     Checking the integrity of caps, fencing
      and other barriers;
     Ensuring that site use has not extended
      into prohibited areas; and
     Inspecting drinking water wells to make
      sure that they are not being used.

    Nuclear Regulatory Commission
             (NRC) Cont’d

2. Guidance
   Site Characterization and Cleanup
      Multi Agency Radiation Survey & Site
      Investigation Manual (MARSSIM):25
        Excellent discussion of issues, goals,
         policies and techniques;
        Problematic for demonstrating compliance
         with 25 mrem/y with naturally occurring
Nuclear Regulatory Commission
         (NRC) Cont’d
   D&D Code:
      Alternative to RESRAD but is very
       conservative and impractical - i.e., One
       Nuclide and Only homogenous, surface
       contamination and no groundwater

  Nuclear Regulatory Commission
           (NRC) Cont’d
C. Source Material (S/M) Reconsideration
 2000 - NRC considers amending 10 CFR 40
  requiring NRC approval for transfers of
  unimportant quantities (e.g. < 0.05%) of
  S/M from licenses to exempt persons.26
    Section 40.13(a) exempts from licensing s/m
     w/less than 0.05% of U or Th or a combination
    Raised question of reducing the licensable level
     to less than 0.05%.
Nuclear Regulatory Commission
         (NRC) Cont’d

   Would bring significant parts of the
    mining industry under NRC regulation;
   Could be considered to violate AEA
    without Congressional approval;
   Could provide EPA with AEA authority
    (i.e. opportunity) to regulate U and Th
    below 0.05%.

A. Low Level Radioactive Waste

1. LLRW 1993 - EPA publishes an ANPR outlining potential D&D
    issues including: LLRW, Mixed Waste, NORM/NARM, regulatory
    approaches, waste management and waste recycling and reuse
    issues under AEA and CERCLA:27

          Cleanup to detection limits;

          Cleanup to background levels;

          Cleanup to a risk level or range of risk levels;

          Cleanup to BACT.

    Never Promulgated!
        AGENCY (EPA) Cont’d
2. EPA/NRC Dispute
 1997 - EPA challenges NRC intent to and actual
  decision to abandon 15 mrem/y limit for 25
  mrem/y; and decision not to require a 4 mrem/y
  separate groundwater limit.28
 EPA threatens to consider NRC’s rule not
  protective under CERCA and national
  groundwater policy and to reconsider exempting
  NRC sites from the NPL.
        AGENCY (EPA) Cont’d

   This dispute continues:
        NRC has requested that Congress resolve the
        EPA has issued Superfund Radiation Guidance
         questioning protectiveness of NRC regulations
         for CERCLA purposes;29
        15 mrem/y is not to be considered a cleanup
         limit but rather a preliminary remediation goal;
        (15 mrem/y = 3x10-4).

       AGENCY (EPA) Cont’d
 EPA states:
     – 40 CFR Part 190 25 mrem/y limit actually =
      s 15 mrem/y;

     – 40 CFR Part 192 5/15 pCi/g standard for
      radium in Soil (EPA Estimated dose of up to
      80 mrem/y when promulgated) also = s 15
     – If 25 = 15 and 80 = 15 why quarrel with
      NRC’s 25?
      AGENCY (EPA) Cont’d
B. EPA Council of State Radiation Control
Program Directors (CRCPD) Dispute
(1) 1997 - EPA challenges draft CRCPD NORM
regulations as inconsistent with Superfund
protectiveness goals30
     Draft rule only requires SDWA MCL’s be
       met at the tap and no separate
       groundwater standard;
     Draft rule allows for 100 mrem/y
       AGENCY (EPA) Cont’d

 Draft expresses no preference for
  permanent remedies;
 Result -- may lead to creation of more
 Superfund sites.

    AGENCY (EPA) Cont’d
2. Council of State Radiation Control Program
   Directors (CRCPD) TENORM Model Standards:

 Long term effort cumulated w/proposal from
  NORM Commission which utilized NORM
    Advisory Committee;
 Moved to dose based approach in Final Subpart
  N Model Regulations.31

     AGENCY (EPA) Cont’d
 No Licensee shall cause a member of the public to receive TEDE
    from all licensed sources including TENORM in excess of 100
   Does not apply to indoor radon or source Material under AEA (i.e.,
    U & Th) or TENORM regulated under CERCLA or RCRA;
   Release for unrestricted use must assume that reasonable
    maximally exposed individual will receive an annual TEDE in excess
    of “some fraction” of 100 mrem/y “above background”.
              left states with freedom to choose fraction;
              NJ has chosen 15 mrem/y;
   Incorporates 5/15 pCi/g RA-226 rule for soil contaminated
   Disposal of TENORM in UR tailings impoundment or other AEA
    licensed disposal facility or in accordance w/authorized Agency
        AGENCY (EPA) Cont’d
3. EPA TENORM Project

 EPA published several draft Diffuse NORM Reports
  such as: “Diffuse NORM Wastes: Waste
  Characterization and Preliminary Risk Assessment”
  (1993) that were filled with so many inaccuracies
  and irrelevancies as to be useless;32
 EPA moving to a series of individual reports on
  TENORM wastes and products for different
    UR is first on the list;
    Designed to be information gathering and not for
     regulation.                                        51
        AGENCY (EPA) Cont’d
C. Mixed Waste
 Dual Regulatory Scheme imposed by NRC under the
  AEA and EPA under RCRA;34
 RCRA §1006 mandates that RCRA yield to the AEA to
  prevent inconsistencies, however the section has
  never been used successfully to exempt materials
  from regulation under RCRA;
 Has been interpreted to prohibit RCRA regulation
  only in cases where it is “physically impossible” to
  comply with both statutes.
 LLRW standards would provide adequate protection -
  maybe some EPA movement in that direction.
           AGENCY (EPA) Cont’d
D.     Radioactive Mine Waste on Federal Lands
 Executive Order 12580 amended by President Clinton to
  authorize Federal Natural Resource Trustees and Land
  Management Agencies to issue unilateral administrative orders
  under §106 of CERCLA;35
 April 1998 - Meeting in Grand Junction, Colorado to initiate
  discussions about cleanup of inactive and abandoned uranium
  mines on government lands pursuant to the above amendment;
 EPA urged federal agencies to pursue clean up under §106 to
  the 15 mrem/y level;
 Concerns about elevated radionuclide emissions and
  mobilization of uranium by acid mine drainage.

   AGENCY (EPA) Cont’d
E. EPA Maximum Containment Levels (MCLS)
   for Radionuclides under the Safe Drinking
   Water Act (SDWA)

 Tap water standards that will be applied to
  groundwater corrective action under CERCLA;
 NRC opposes EPA MCL Package for radionuclides as
  inconsistent and outmoded but failure to satisfy
  MCL’s could leave a terminated NRC license
  vulnerable to EPA reopeners.

       AGENCY (EPA) Cont’d

 Radionuclide MCL’s:36
      Radium - 5 pCi/l is retained in spite of evidence
       of a radium threshold in humans.
      Uranium - 30 U/g/l (27 pCi/l) will pose a
       potentially significant cleanup problem for
       mining waste operations.

IV. Department of Energy (DOE)

 Section 151(b) of the Nuclear Waste Policy Act
  (NWPA) provides DOE with the authority to
  take wastes under certain circumstances.37
 DOE Established a Long-term Stewardship
  Program under Environmental Restoration
  Division to address waste sites that it already
  must take (eg.Title I) and those that it may
  need to take under 151(b).

 Department of Energy (DOE) Cont’d

 Critical issues for DOE include:
    Concerns that state may attempt to regulate sites
     under FFCA for hazardous materials;
    Concerns that Long-Term Financial Assurance will
     not be in place;
      Potential Use of trust mechanisms to insure financing.


A. Compacts Have Become Irrelevant
     GAO (September 1999) reports that States
      have spent almost $600 million attempting
      to find and develop about 10 sites for
      disposing commercially created LLRW;
      “none of the states or compacts have
      successfully developed a new disposal
      facility.” “[T]he efforts by states to develop
      new disposal facilities have essentially

 Barnwell, S.C. facility’s “remaining disposal
  capacity could be used up in 10 years.”
 Northwest/Rocky Mountain Compacts - 11 states
  here use the Richland, WA facility.
B. Envirocare is seeking authority to dispose of
    Class B and C wastes.

VI. Lessons Learned That May or
    Will Affect Waste Regulation in
    This Century
 Goal of White Paper: To Proactively
 Stimulate Conservation of a Rational,
 Coordinated Framework for Regulation
 of UR Activities.

             Summary Cont’d

 Risk-informed performance based
 regulation works and has established a
   Pre-1978 11e.(2) issue has elevated the
   risk based regulatory approach to public
   Performance based licensing is established
   at NRC even with reactors (eg. 10CFR
             Summary Cont’d

 The Active controls (i.e., treatment)
 first in all cases approach is giving way
 to less active controls (i.e., ACL’s and
 IC’s) to remediate sites in the face of
   Eg; Pump and treat is too expensive and
    often ineffective so:
     ACL’s;
     Supplemental standards.

           Summary Cont’d

 Long term stewardship and restricted use
 make sense:
   IC’s

            Summary Cont’d

 Duplicative Regulation Will Continue to
 Be a Problem:
   D&D Rule Conflict
   Mixed Waste

            Summary Cont’d

 Anything That Resonates Thru CERCLA
 and RCRA Program That Threatens
 Change May Hit a Road Block With EPA.
   Absolute Power Corrupts Absolutely and So
   It Is With EPA and CERCLA Which Has
   Taken On A Deified Life of Its Own.

            Summary Cont’d

 Huge Volumes of Waste-high Cost of
 Removal And/or Treatment (Particularly
 With NORM) Are Leading to Creative
 Thinking That Is Forcing Rigidity of the Past
 Aside -- So:
   Regulators and Regulated Need to Be Creative
   and Think Outside the Box;
   Public Opinion Must Be Addressed but More and
   More Frequently Will Accept in Situ Closure
   Rather Than Costs and Risks of Removal;
            Summary Cont’d

 Flexibility To Address Site-Specific
  Conditions At Complex Sites (Such As
  ACL’s, Alternatives, Supplemental
  Standards, Restricted Use through IC’s
  And Informational Devices.) Is An
  Absolute Necessity If Successful Site
  Closures Are To Be Achieved.


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