Testimony of Earl E. Hoellen, International Uranium (U.S.A.) Corporation,
Before the United States Senate Committee on Armed Services,
Subcommittee on Strategic Forces
September 3, 1998
Mr. Chairman and members of the Subcommittee, it is a privilege to appear before you to share with you my thoughts and experiences regarding the commercial capabilities that exist to accept low level radioactive materials and mixed wastes from the Department of Energy (DOE). My testimony today will focus, in particular, on the unique opportunities presented by existing uranium milling facilities to provide for the disposition of large volumes of these DOE materials. In addition, I hope to point out some of the regulatory, political and other impediments that now stand in the way of more fully utilizing the unique capabilities presented by these types of facilities for the processing and disposal of a wider range of DOE materials.
My name is Earl Hoellen. I am the president and CEO of International Uranium (U.S.A.) Corporation (IUSA). IUSA is in the business of producing and selling uranium concentrates and other fuel cycle products in the nuclear fuel market; in addition, as a co-product to its uranium production, IUSA also produces and sells vanadium and other metals. IUSA operates uranium mining and processing facilities in the western United States, including the White Mesa Uranium Mill (the "Mill") near Blanding, Utah. Constructed in 1980, the Mill is a state-of-the-art facility, with a capacity to process 2,000 tons of ore per day.
In addition to processing mined (or "conventional") uranium ores, the White Mesa Mill also processes other suitable uranium-bearing materials, referred to as "alternate feedstocks" or "alternate feeds," for the extraction of uranium. These alternate feeds may consist of ores that have previously been processed through a uranium mill or some other type of processing facility, or they may be remediation or other wastes containing source material. IUSA takes these alternate feed materials (which are typically considered to be wastes by the facilities from which they are obtained) and processes these materials through the Mill to recover uranium and sometimes other metals. The uranium produced from these alternate feedstocks is identical to that produced from conventional ores, and the residuals or "tailings" that result from the processing of alternate feedstocks are physically, chemically, and radiologically similar to existing tailings at the Mill produced from the processing of conventional ores. Tailings generated at IUSA's Mill are disposed of in an NRC-approved tailings disposal system on site at the Mill, which consists of lined tailings cells or impoundments, with a leak detection system and a series of groundwater monitoring wells designed to provide early detection of any releases from the impoundments. In addition, the Mill is ideally sited to prevent groundwater impacts from disposal, with more than 1,000 feet of low permeability rock separating the tailings impoundments from the nearest aquifer.
At full capacity, the Mill is capable of producing about 6 million pounds of uranium per year from higher grade Arizona Strip ores, or approximately 3 ½ million pounds of uranium and 18 million pounds of vanadium per year from Colorado Plateau ores. Since beginning operations in 1980, the Mill has produced over 28 million pounds of uranium and 45 million pounds of vanadium. Over the past year alone, the Mill has produced over 600,000 pounds of uranium from "alternate feed" materials. Throughout these operations, the Mill has maintained an exceptional environmental compliance and health and safety record, with no releases to groundwater, and IUSA is dedicated to continuing this record of excellence.
As I hope will become apparent in the remainder of this testimony, one of the key elements that makes the Mill a unique resource for the processing of alternate feeds is that tailings and other wastes from the processing of uranium ores and alternate feeds at the Mill are regulated as "11e.(2) byproduct material" under the Atomic Energy Act (AEA), as amended by the Uranium Mill Tailings and Radiation Control Act (UMTRCA). Congress, when it enacted UMTRCA, created this new category of regulated material, which was (and remains) unique among those regulated under the AEA because it is defined broadly, to include all wastes -- including radiological and non-radiological (i.e., "hazardous") wastes -- resulting from the processing of ores for the recovery of source materials (i.e., uranium or thorium).
The AEA (as amended by UMTRCA) and the implementing regulations promulgated by
the U.S. Environmental Protection Agency (EPA) and the Nuclear Regulatory Commission
(NRC), set out at 40 C.F.R. Part 192 and 10 C.F.R. Part 40, respectively, create a comprehensive
system for regulating 11e.(2) byproduct material. Under this regulatory scheme EPA and NRC
share responsibility for regulating 11e.(2) byproduct material in a manner that protects public
health, safety and the environment from both the potential radiological hazards associated with
11e.(2) material and the potential non-radiological hazards associated with such material. In
particular, the requirements imposed by EPA and NRC under UMTRCA must afford protection
against potential non-radiological hazards that is equivalent to that provided under the Resource
Conservation and Recovery Act (RCRA) for comparable materials. Accordingly, 11e.(2)
byproduct material, such as the tailings and other wastes produced during the processing of
conventional ore and alternate feeds at the IUSA Mill, is by statute excluded from regulation
under RCRA. Moreover, EPA is expressly prohibited from requiring RCRA permits for the
possession, transfer, processing or disposal of this type of material.
IUSA's CAPABILITIES TO SERVICE THE DEPARTMENT OF ENERGY'S (DOE's) MATERIAL RECYCLING/WASTE MANAGEMENT NEEDS
As the operator of the only fully operational uranium mill in the U.S. with experience in processing alternate feed materials, IUSA is uniquely qualified to provide both treatment and disposal services at its Mill for uranium-bearing DOE materials. Among the advantages that IUSA offers are the following:
(i) The Mill uses a proven technology to process alternate feed materials and dispose of the resulting tailings in a manner that results in waste that is less radioactive and that results in a smaller volume of waste for ultimate disposal as compared to direct disposal options;
(ii) The recycling technology used at the Mill allows for the recovery of uranium and other valuable minerals from feedstocks that would otherwise be disposed of as wastes;
(iii) Processing and disposal at the Mill utilizes existing disposal capacity, at a time when there is a critical shortage of disposal capacity for high volume, low activity wastes;
(iv) The regulatory framework for the processing of alternate feed materials at the Mill is already in place;
(v) This regulatory regime, which is administered by NRC and EPA ensures that IUSA's processing of alternate feed materials and disposal of the resulting tailings is conducted in a manner that protects public health, safety and the environment, with an appropriate margin of safety; and
(vi) Processing and disposal of these alternate feed materials can be accomplished at the Mill at a cost that is substantially lower than other disposal options.
Each of these advantages is addressed below.
THE WHITE MESA MILL USES A PROVEN TECHNOLOGY TO PROCESS
ALTERNATE FEEDS AND DISPOSE OF THE RESULTING TAILINGS
As a technology, conventional uranium processing at a mill, followed by disposal of the residual 11e.(2) byproduct material in on-site tailings impoundments, is well-proven. Only the application of this technology to recover uranium from materials that might otherwise be considered "waste" is innovative. IUSA has processed alternate feeds at the White Mesa Mill since 1993. These feedstocks have come from both government and private sites in Colorado, Illinois, Nevada, Pennsylvania, and Texas.
In 1997, this technology was proven to DOE to be effective for processing and disposal of a government-owned waste stream, when IUSA safely processed a uranium byproduct material from the DOE inventory known as the "Cotter Concentrate." Cotter Concentrate was most recently stored as a strategic material in inventory at the Nevada Test Site. When it was placed into storage it was anticipated that the material would undergo further processing for additional uranium extraction, in order to support the nation's nuclear weapons program. However, suspension of large-scale weapons production eventually resulted in DOE no longer having a need for the material. Consequently, disposal of the material was considered to be the only available option, and the Cotter Concentrate was declared a waste. (Indeed, because of the corrosive nature of the material and its relatively high selenium content, the Cotter Concentrate was considered to be a mixed hazardous and radioactive waste.) Subsequently, when it was determined that the Cotter Concentrate could be recycled through a uranium mill for recovery of valuable uranium, it was determined that the material would not be regulated as a waste under RCRA. This decision was supported by the Nevada Division of Environmental Protection and the Utah Department of Environmental Quality.
Shortly thereafter, DOE contracted with IUSA to process the Cotter Concentrate and dispose of any resulting tailings at the White Mesa Mill. In this manner, between September 1997 and January 1998 approximately 400 tons of Cotter Concentrate were processed at the Mill, and approximately 60,000 pounds of uranium was recovered from the material. The Cotter Concentrate has now been completely processed and the tailings from that processing disposed of at the Mill. DOE estimates that it saved expenses totaling $3 million (or approximately 80% of the total project budget) by utilizing the Mill for recycling and disposal of the Cotter Concentrate, as compared to the costs for direct disposal of the material.
In addition to processing Cotter Concentrate from the Nevada Test Site, IUSA has applied for, and received, an amendment to its Mill license to allow the facility to process as alternate feed soils containing low levels of radioactivity from the Ashland 2 FUSRAP site in Tonawanda, New York. The Formerly Utilized Sites Remedial Action Program, or FUSRAP, was begun by the Atomic Energy Commission (AEC) in 1974. The purpose of this program was to study and remediate if necessary, sites potentially contaminated with radioactive materials as a result of activities by the Manhattan Engineer District (MED) or AEC, predecessors to DOE. Management of the FUSRAP program is currently the responsibility of the U.S. Army Corps of Engineers (the "Corps").
In 1998, the Corps undertook a study to evaluate various alternatives for the disposition of FUSRAP materials. Using value engineering techniques, the Corps identified recycling of FUSRAP materials as alternate feed in a licensed uranium mill as a desirable alternative to direct disposal. Among the advantages cited by the Corps for advocating the use of uranium mills for processing and disposing of FUSRAP materials were the following:
Disposition of FUSRAP materials in this manner conforms to Congressional and regulatory mandates which encourage the use of recycling, since the process recycles uranium and other valuable minerals;
Processing the material through the mill reduces the radioactivity and the volume of material to be disposed of (and thus renders the residual material safer for disposal);
Disposal at the mill results in substantially lower disposal costs than direct disposal at other types of facilities, in part because of the benefits of recycling;
Treatment and disposal are performed at a single location, and residuals (tailings) from recycling are disposed of in an NRC-compliant disposal system, meeting 10 C.F.R. Part 40 design criteria;
Residual 11e.(2) byproduct material is disposed of in existing tailings impoundments which is consistent with the intent expressed by NRC in 10 C.F.R. Part 40 Appendix A, to avoid proliferation of small disposal sites; and
Processing and disposal at uranium mills offers another potential, competitive option in a commercial disposal market that is monopolized by one facility -- the Envirocare facility.
Having identified uranium mills as an attractive option for the disposition of FUSRAP materials, the Corps, through its contractor, entered into an agreement with IUSA in 1998 to process FUSRAP material from the Ashland 2 site in Tonawanda, New York. On July 24, 1998, the first flatbed rail car left the Ashland 2 site bound for the Mill, carrying four intermodal containers, each loaded with 20 tons of soil containing low levels of radioactive material. Excavation and shipment of material from the Ashland 2 site will continue through September of 1998, and recycling of the material should commence within a few months after all of the material has been received at the Mill.
IUSA believes that this important project will serve as a model for further FUSRAP cleanups, using recycling as an innovative, cost-effective and environmentally superior option to direct disposal. The Corps' initiative to apply value engineering principles, combined with NRC's expeditious review of IUSA's license amendment request, enabled the Corps and its contractor to take advantage of this option. Although Envirocare and the State of Utah have requested hearings before NRC to air their concerns regarding the economic feasibility of this project and to raise unfounded environmental concerns about the project, IUSA remains committed to completion of the project and to providing further recycling services to the FUSRAP program. To that end, IUSA has presented its recycling option to the Corps' St. Louis and Kansas City Districts, as well as to potential contractors. In addition, IUSA is developing a submittal to the NRC requesting a license amendment to enable IUSA to recycle materials from the FUSRAP St. Louis Downtown, Airport, and Latty Avenue sites.
Finally, IUSA has sought to utilize materials from Silo 3 at the Fluor Daniel Fernald site
as an alternate feedstock for the White Mesa Mill; however, as I discuss in more detail later in
my testimony, because of the DOE contractor's unnecessarily rigid and narrow interpretation of
the Record of Decision (ROD) for the Fernald site, IUSA has been precluded from making a
proposal to process and dispose of the material. However, IUSA has approached DOE to request
that the agency review its contractor's interpretation of the ROD, so that IUSA may offer a
proposal for the recycling and disposal of Silo 1 and 2 materials from the site.
As already indicated, by processing alternate feed materials at the Mill, IUSA is able to
recover substantial quantities of uranium and, in some cases, other valuable metals from
materials that might otherwise be regarded as "wastes." For example, over the past year alone,
the White Mesa Mill has recovered over 600,000 pounds of uranium from alternate feedstocks.
Without the recycling option presented by the White Mesa Mill, these alternate feedstocks would
have been disposed of, and their valuable mineral content would have been lost.
NRC has, in its regulations, adopted a general policy disfavoring the proliferation of small disposal sites, in order to minimize the need for long term surveillance at a multitude of disposal sites in the future See 10 C.F.R. Part 40, Appendix A, Criterion 2. When NRC adopted this policy it was anticipated that adequate disposal capacity for uranium- and thorium-bearing radioactive wastes would be provided by new and existing uranium mill tailings facilities and by existing and new low level radioactive waste disposal facilities that would handle disposal of a broader range of Low Level Radioactive Waste (LLRW).
However, the reality is that today, available disposal capacity for high volume, low activity uranium-bearing wastes is quite limited, and this scarcity of disposal capacity is likely to continue into the foreseeable future. In part this lack of disposal capacity can be traced to the failure of the Low Level Radioactive Waste Policy Act (LLRWPA) to result in the licensing of new LLRW disposal facilities under the interstate compact system for the disposal of LLRW. As a consequence, the price of commercial disposal at interstate compact LLRW disposal sites, or potential compact sites, is so exorbitant that sites with large volumes of low activity remediation wastes (such as radioactively contaminated soil or debris) have not been and likely will never be able to dispose of those wastes at such facilities. This problem is exacerbated by the fact that most uranium mill tailings facilities are in various stages of closure and cannot accept new wastes for disposal. As a result, the only viable alternative for some sites with high volume, low activity remediation waste has become on-site disposal -- which will necessarily result either in a proliferation of disposal sites, or in delays in decommissioning as sites wait for new disposal capacity to come on line. Both outcomes are contrary to NRC's stated goals and contrary to the environmental interests of the country.
IUSA can help alleviate some of this pressure towards proliferation and delayed decommissioning by providing a low cost alternative to direct disposal. Specifically, IUSA's Mill and its substantial tailings disposal capacity can be used to recover uranium and other valuable metals from these "waste" materials (at least to the extent that the materials are physically, chemically and radiologically similar to conventional tailings), and the resulting tailings can be disposed in the Mill's existing tailings impoundments.
Moreover, utilizing the existing disposal capacity at the Mill in this manner is consistent
with (i) the goals identified by NRC in its "Strategic Assessment and Rebaselining Initiative"
(the "SARI") and (ii) NRC's longstanding policy favoring the disposal of radioactive waste over
storage. In its SARI, NRC examined in detail all aspects of its regulatory program, with the
ultimate goal of developing a strategic plan for accomplishing its mission more effectively. As
part of this SARI process, the Commission expressed its willingness to consider broader uses for
uranium mill tailings facilities to allow disposal of waste generated during decommissioning of
non-reactor facilities in the tailings piles along with 11e.(2) byproduct material. In particular, the
Commission noted that there is insufficient disposal capacity for high volume uranium- and
thorium-contaminated wastes, such as those from the decommissioning of non-reactor sites, and
that, as a consequence, disposal of these wastes may be either prohibitively expensive or simply
infeasible. Accordingly, the Commission suggested, as an option, that disposal of high volume
wastes contaminated with uranium or thorium at existing mill tailings sites would be cost
effective and adequately protective of health, safety and the environment.(1) By processing these
types of materials as alternate feeds, the Mill would offer not only additional cost effective
disposal capacity, but also the benefit of recovering uranium and other valuable metals that
would otherwise be disposed of as waste. Similarly, by allowing facilities to recycle their high
volume uranium-containing wastes instead of having to store those wastes on site, the use of
alternate feeds at the Mill furthers NRC's policy favoring disposal over long term storage. As
NRC has acknowledged, "[a]lthough LL[R]W can be safely stored, NRC believes that the
protection of the public health, safety and the environment is enhanced by disposal, rather than
by long term, indefinite storage of waste." 58 Fed. Reg. 6730, 6731 (1993).
the Regulatory framework for processing alternate feed materials at the white mesa Mill is already in place
Another advantage offered by the recycling option is that the regulatory framework is already in place for processing alternate feedstocks and disposing of the resulting tailings at the Mill. On August 15, 1997, NRC issued its "Final Position and Guidance on the Use of Uranium Mill Feed Material Other Than Natural Ores" (the "Alternate Feed Policy"). Under this policy, NRC will permit licensees to process alternate feed materials in uranium mills provided that three conditions are satisfied.
First, the alternate feed material must qualify as "ore." NRC has defined "ore" broadly to encompass any "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) This definition is clearly broad enough to encompass ores which have previously been beneficiated for uranium or other minerals and which are outside of the owner's legal or technical ability to further process, provided that source material is extracted from the ore in a licensed uranium or thorium mill.
Second, in order to qualify as alternate feed, the material cannot contain a listed hazardous waste subject to regulation by EPA under RCRA. As NRC has explained, this restriction is intended to avoid the possibility of dual jurisdiction over the wastes generated from processing the alternate feed, and not to address environmental concerns. In addition, this restriction does not apply to feed material that exhibits only "characteristics" of hazardous waste, since such material is exempt from regulation as hazardous waste under RCRA when reclaimed. See 40 C.F.R. § 261.2(c)(3).
Third, the alternate feed material must be processed "primarily for its source-material content." To ensure that the proposed feed is being processed primarily for its source material content, NRC has established two tests -- the co-disposal test and the certification test. Under the co-disposal test, there is a presumption that a material is being processed primarily for its source material content if the material would be approved for disposal under NRC's guidance for the direct disposal (i.e., without processing) of non-11e.(2) byproduct material (i.e., source material) in uranium mill tailings impoundments.(3) In other words, if, for a fee, the material could have been disposed of directly in a tailings impoundment without processing through the mill, it is assumed that any processing of the material that does occur is done primarily for its source material content. Under the certification test, the licensee must certify that the feed material is to be processed primarily for the recovery of uranium or thorium and no other primary purpose, and the licensee must justify this certification with reasonable documentation.
IUSA has taken advantage of NRC's Alternate Feed Policy to successfully process
various alternate feed materials and dispose of the resulting tailings at the Mill. Currently, NRC
must grant IUSA a license amendment each time the company wants to process a different
alternate feedstock at the Mill. However, IUSA is negotiating with NRC over a revision to its
license to allow a more flexible, performance-based acceptance standard that would eliminate the
requirement for individual license amendments for each alternate feedstock. This license
amendment would be consistent with similar performance based license conditions included in a
number of uranium recovery and disposal licenses, including Envirocare's 11e.(2) disposal
license. Even under this revised procedure, however, the acceptance criteria laid out in NRC's
Alternate Feed Policy would remain as stated above.
As already indicated, tailings from uranium milling operations like those that occur at the White Mesa Mill are regulated as 11e.(2) byproduct material under the AEA as amended by UMTRCA. These two statutes create a unique program for the comprehensive regulation of 11e.(2) byproduct material, under which EPA, NRC and DOE share responsibility for regulating mill tailings and other 11e.(2) byproduct materials. Thus, under AEA Section 275, EPA is required to develop standards of general applicability to regulate both the radiological and non-radiological hazards associated with 11e.(2) byproduct material; and for non-radiological hazards, the generally applicable standards developed by EPA must provide protection equivalent to that achieved under RCRA for comparable materials. Section 84 of the AEA directs NRC to implement EPA's generally applicable standards through licensing; in addition, NRC is directed by Section 84 to independently develop specific requirements and criteria applicable to licensees that (i) the Commission deems appropriate to protect against both potential radiological and non-radiological hazards associated with 11e.(2) byproduct material, and (ii) that are compatible with the generally-applicable RCRA-based standards developed by EPA. Finally, under Section 83 of the AEA, upon termination of the license for a uranium milling facility, title and custody of the tailings and the tailings impoundment are transferred to DOE (or to the State in which the impoundment is located, at the option of the State). This government custodian (most likely DOE) is required to maintain the site in perpetuity, pursuant to a license issued by NRC, in a manner that protects public health, safety and the environment.
Consistent with their statutory mandates, EPA and NRC have developed an extremely conservative regime of controls to address both the potential radiological and non-radiological hazards associated with uranium mill tailings and other 11e.(2) byproduct materials. The EPA and NRC regulations (40 C.F.R. Part 192 and 10 C.F.R. Part 40, respectively) limit radon releases, require cleanup of radionuclides in soils and provide protection against releases of non-radiological ("hazardous") constituents equivalent to the protection provided under RCRA. In addition, the regulations require the establishment of detection monitoring programs equivalent to those under RCRA, in order to ensure compliance with groundwater concentration limits. To satisfy NRC's site closure standards, "passive" systems must provide reasonable assurance that the potential radiological and nonradiological hazards from the tailings will be controlled in accordance with regulatory limits for a minimum of 200, and to the extent practicable, 1,000 years without "active" (i.e., ongoing) maintenance.
Finally as noted above, UMTRCA requires that upon termination of the license for a uranium mill tailings facility, title to the facility, and to the tailings at the facility, must be transferred either to the State in which the site is located or to DOE, at the State's election. Importantly, the transfer of title to DOE must occur without cost to the government, and licensees are required to set aside sufficient funds to support ongoing surveillance and monitoring following license termination. After title to a uranium mill tailings site is transferred, DOE becomes a perpetual licensee of the site, subject to independent regulatory oversight by NRC. Moreover, Section 83(b) of the AEA empowers NRC to require that DOE, as the perpetual licensee, undertake maintenance, monitoring, and any other actions as may be necessary to comply with the standards developed by NRC under Section 84.
This regulatory program for mill tailings established under the AEA as amended by
UMTRCA goes well beyond any regulatory horizons contemplated by RCRA and CERCLA
(generally 30 years) and beyond those in NRC's LLRW standards in 10 C.F.R. Part 61 (300-500
years and no nonradiological standards). The stringent disposal requirements imposed on
uranium mill tailings and other 11e.(2) byproduct materials, and the fact that such materials are
subject to perpetual oversight and government ownership effectively eliminates the potential for
any future risk to members of the public due to the tailings.
As indicated, processing of alternate feed materials and disposal of the resulting tailings can be accomplished at the Mill at a cost that may be substantially lower than the cost of other disposal options. These cost savings result primarily from the fact that valuable resources are recovered from the alternate feed materials recycled at the Mill, and from the competition that IUSA brings to the industry. Thus, for example, DOE estimates that by processing the Cotter Concentrate and disposing of the resulting tailings at the Mill, DOE saved approximately $3 million dollars (or approximately 80% of the total project budget), when compared with the estimated cost for direct disposal. The DOE Nevada Operations Office noted that (the Mill's) "proposal was selected since it would involve a beneficial use of the material, consistent with RCRA's intent to encourage recycling and recovery, thus conserving energy and natural resources, in addition to saving taxpayers an estimated three million dollars."
Although the costs of processing an alternate feedstock at the Mill will vary depending on
the quality of the feedstock and other factors, in general, the cost of processing an alternate feed
and disposing of the resulting tailings at the Mill has to date resulted in cost savings ranging
from 20% to 80% compared to the cost of either direct disposal or stabilization and disposal.
IMPEDIMENTS TO ACCEPTING A BROADER RANGE OF DOE MATERIALS
As indicated, processing alternate feed materials at existing uranium milling facilities provides a number of important advantages over direct disposal. Chief among these advantages are (i) the ability to recover valuable uranium and other mineral resources from materials that would otherwise be considered waste, thereby reducing the volume and radioactivity of the residual waste materials left after processing; (ii) the fact that tailings from processing alternate feeds are disposed of in existing uranium mill tailings impoundments, which are subject to stringent controls addressing both radiological and non-radiological hazards, thus alleviating pressures that might result in a proliferation of small disposal sites; and (iii) processing alternate feeds and disposing of the resulting tailings at the Mill can be accomplished at a cost that is significantly lower than the cost of disposal at other commercial facilities.
IUSA believes that the advantages offered by recycling could be extended to a broader range of DOE materials than are currently considered amenable to this option; however, there are a number of obstacles that now stand in the way of utilizing this recycling technology more fully. The most significant obstacles to expanding the range of materials that might be recycled are as follows: (i) NRC's Alternate Feed Policy has been interpreted by some in a manner that is unnecessarily restrictive; the Policy should be refined to avoid these misinterpretations; (ii) DOE contractors have adopted inappropriately narrow and rigid interpretations of their authority to consider disposal options, and should be encouraged to view disposal options with more flexibility; (iii) IUSA's efforts to process alternate feeds have been hampered by anti-competitive practices that have been employed by Envirocare in an attempt to protect its monopoly position with respect to the commercial disposal of low level radioactive wastes; (iv) NRC currently restricts quite severely the types of non-11e.(2) byproduct materials that can be disposed of directly in uranium mill tailings impoundments (i.e., without prior processing through a mill); the Commission should revisit this policy and initiate a public dialogue to address whether any of these restrictions on direct disposal of non-11e(2) material in tailings impoundments are unnecessary and can be eliminated; and (v) by asserting concurrent jurisdiction over the non-radiological aspects of 11e.(2) byproduct material, non-Agreement states create an unnecessary and redundant layer of regulation that can hamper disposal of 11e.(2) byproduct material and may result in less than optimal protection of health, safety and the environment; therefore, Congress and NRC should explicitly acknowledge that UMTRCA and the AEA preempt non-Agreement state regulation of 11e.(2) byproduct material.
These issues are addressed in more detail below.
deficiencies in nrc's alternate feed policy
Under NRC's Alternate Feed Policy, a licensee must demonstrate that an ore is being processed primarily for its source material content before the ore can be utilized as an alternate feedstock. This requirement is based on the definition of 11e.(2) byproduct material in the AEA, under which 11e.(2) material is defined as "tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content." The requirement that alternate feed be processed primarily for its source material content was made explicit in NRC's Alternate Feed Policy in order to address concerns about "sham disposal" whereby it has been argued that wastes that would otherwise have to be disposed of as LLRW or mixed waste would be milled at a uranium mill primarily to be able to dispose of it in the tailings pile as 11e.(2) byproduct material at less cost.
As indicated previously, to ensure that a proposed alternate feed is being milled "primarily" for its source material content and that the resulting wastes properly qualify as 11e.(2) byproduct material, NRC has established two tests the co-disposal test and the certification test. While the primary purpose tests in the current Policy are broad enough to allow for a fairly flexible interpretation, the tests are unfortunately interpreted very narrowly by some, most notably the State of Utah and Envirocare, thereby causing confusion and frustrating the intent of Congress under the AEA as amended by UMTRCA.
The State of Utah has intervened twice in NRC proceedings on license amendments allowing the processing of alternate feeds, once in 1992 and currently with respect to the Ashland 2 materials. In both cases the purpose of the State's intervention was to have those license amendments overturned on the basis that, unless the value of the uranium to be extracted from the alternate feed is, in and of itself, greater than the cost of processing the materials, processing of the materials constitutes "sham disposal." Envirocare has sought to intervene in the Ashland 2 proceeding on similar grounds. This interpretation of the certification test -- which would require a licensee to demonstrate, in effect, that recovery of uranium from an alternate feed is by itself economical -- narrows considerably the types of alternate feed materials that can be processed by uranium mills and disposed of in their 11e.(2) impoundments, tending to exclude, in particular, feedstocks with lower uranium content. However, there is nothing in the AEA, as amended by UMTRCA, in the relevant case law or in relevant agency guidance that even suggests that this focus on the economics of recycling is an appropriate basis upon which to determine whether an alternate feedstock is processed "primarily" for its source material content.
It is plain from the legislative history of UMTRCA that when Congress created the new category of material known as 11e.(2) byproduct material, it was intended that this category would be interpreted broadly, to include all wastes resulting from the extraction of uranium in the context of the nuclear fuel cycle, including wastes resulting from the processing of materials containing so-called "unimportant quantities" of uranium (i.e., less than 0.05 percent). Thus, for example, the definition that was originally proposed for 11e.(2) byproduct material would have applied to wastes resulting from the processing of "source material" (i.e., material containing more than 0.05 percent uranium). However, recognizing that ores containing less than 0.05 percent uranium might still be processed for their uranium content, Congress broadened the definition of 11e.(2) byproduct material to encompass wastes resulting from the extraction of uranium or thorium from "any ore processed primarily for its source material content." See, 57 Fed. Reg. 20525, 20532 (1992).
Similarly, the legislative history of UMTRCA indicates that Congress's expansion of the definition of 11e.(2) byproduct material was intended to ensure that wastes generated during the extraction of uranium as part of the nuclear fuel cycle would not escape regulation under the AEA as amended by UMTRCA. This intent is revealed in the following exchange in the legislative history, between NRC Chairman Hendrie and Congressman Dingell:
Mr. Hendrie. Mr. Chairman, the intent of the language is to keep NRC's regulatory authority primarily in the field of nuclear fuel cycle. Not to extend this out to such things as phosphate mining and perhaps even limestone mining which are operations that do not disturb the radium-bearing crust of the Earth and produces some exposures but those other activities are not connected with the nuclear fuel cycle. . . .
Mr. Dingell. Your thesis is that we ought not however to set up a set of circumstances where we would leave some of these to fall between cracks and wind up being unregulated.
Mr. Hendrie. I agree fully, Mr. Chairman, and I believe the way the language would cut here, as we recommended, would not leave any crevasse between the two authorities [EPA and NRC].
See 903 F.2d 1 (1990). Indeed, as this exchange suggests, Congress' use of the phrase "ore processed primarily for its source material content" in the definition of 11e.(2) byproduct material was intended to distinguish between primary processing to produce uranium in a licensed uranium mill, as opposed to secondary processing where uranium is produced in a side-stream recovery process at a mineral recovery facility that is not a licensed uranium mill and that is not part of the nuclear fuel cycle. More generally, the legislative history reveals that Congress intended the definition of 11e.(2) byproduct material to be interpreted broadly. A narrow reading of the phrase "ore processed primarily for its source material content" to require an economic justification for recovering uranium from a given feedstock is inconsistent with that intent. Moreover, there is no suggestion in the legislative history or in the relevant case law that Congress intended such an economic test to be incorporated into the definition of 11e.(2) byproduct material. Thus, there is no statutory basis for adopting a narrow economic test in determining whether an alternate feedstock is being processed primarily for its source material content.
Similarly, there is no regulatory justification for adopting such a narrowly focused interpretation. The regulatory concerns that NRC should appropriately be focused on are the protection of public health, safety and the environment, and, in the context of uranium milling, the reclamation and long-term management of uranium mills and mill tailings. Economic tests to determine whether a feedstock is processed "primarily" for its source material content are irrelevant to these legitimate regulatory concerns and inconsistent with Congressional intent. The fact is that there is no health, safety or environmental justification for allowing one material with high uranium content to be processed as an alternate feed material, while excluding an otherwise identical material that has a lower uranium content from being processed as alternate feed because recovery of uranium from that feedstock is deemed to be uneconomic. Indeed, the only reason for advancing this type of interpretation is to restrict competition faced by disposal-only facilities, which obviously should not be the objective of NRC's Alternate Feed Policy.
In order to address these concerns regarding the misapplication and misinterpretation of the Alternate Feed Policy, and to more properly focus the Policy on protecting public health, safety and the environment, IUSA has petitioned NRC to revise its Policy. In its petition, IUSA has proposed that (i) uranium mills should, by definition, be presumed to be processing materials primarily for their source material content, and (ii) the primary purpose tests should be deleted from the Policy. So long as the processing of the proposed alternate feed material at the mill will not cause any potentially significant incremental adverse effects on public health, safety and the environment and will not compromise the reclamation of the tailings impoundment, the proposed material should be acceptable as an "alternate feed material" under the Policy. Thus, instead of the primary purpose tests currently included in the Alternate Feed Policy, IUSA has proposed that NRC adopt the following test to determine whether a material is processed primarily for its source material content:
A feedstock will be considered to have been processed primarily for its source material content if:
(a) source material is extracted from the feedstock at a licensed uranium or thorium mill; and
(b) processing the material at a licensed uranium or thorium mill and disposal of the resulting tailings: (1) will not cause significant incremental adverse effects on public health, safety or the environment; and (2) will not compromise the reclamation of the tailings impoundment and will be in compliance with the reclamation and closure criteria set forth in 10 C.F.R. Part 40, Appendix A.
NRC should be encouraged to adopt these revisions to its Alternate Feed Policy, to allow
for more a flexible application of the policy and to promote the recycling of uranium and other
minerals found in alternate feeds.
Contractors at DOE sites, and in particular, their sometimes narrow interpretations of acceptable disposal options, can be another impediment that stands in the way of expanding the range of DOE materials that can be recycled at the Mill. IUSA's experience with the Fernald Silo 3 material is illustrative.
IUSA believes that the Silo 3 material at DOE's Fernald site is amenable to processing at its Mill. Accordingly, when DOE's contractor for the site issued a request for proposals for disposal of the Silo 3 material, IUSA hoped to be allowed to conduct treatability testing and to submit a bid on the RFP. However, IUSA was precluded from participating in feasibility testing and was prevented from submitting a bid on the RFP because the contractor adopted a narrow interpretation of the CERCLA off-site rule to require the use of disposal-only facilities (i.e., not allowing recovery followed by disposal) and to require stabilization for constituents displaying "hazardous" characteristics, even in instances where the design of the disposal facility renders such a performance standard irrelevant. More recently, IUSA met again with DOE's contractor regarding the processing and disposal of Silo 1 and 2 materials; however the contractor has raised concerns similar to those that precluded IUSA from bidding on the Silo 3 material. Specifically, the contractor is only allowing proposals for processes that include stabilization for characteristic constituents, even though that standard is irrelevant for materials that are processed at the Mill, since the wastes generated from processing the material are considered to be 11e.(2) material and are exempt from regulation under RCRA.
IUSA believes that this rigid interpretation of the CERCLA off-site rule is unwarranted. In general, we believe that the unnecessary rigidity that contractors have displayed in interpreting acceptable disposal options has resulted (and will continue to result) in lost opportunities for DOE to arrange for the disposition of materials in a manner that maximizes cost effectiveness, that is protective of public health safety and the environment, and that allows for the recovery of valuable mineral resources. Accordingly, DOE should be encouraged to direct its contractors and contracting agents to exercise more flexibility in interpreting the range of acceptable disposal options available for a given site. Contractors should also receive incentives to seek out and implement innovative, cost-effective, environmentally superior approaches such as recycling.
The Envirocare facility in Tooele County, Utah, is the only licensed commercial disposal facility that is capable of disposing of high volume, low activity radioactive wastes. Although it has disposal cells that allow for direct disposal of these types of waste, Envirocare does not have any processing capability -- i.e., it cannot recycle the uranium and other valuable minerals contained in the high volume wastes it receives.
There have been numerous instances over the last several years where Envirocare has been alleged to have used the regulatory process not to further the protection of health, safety and the environment, but rather to protect its monopoly position in the marketplace. Although IUSA was not involved in any of these alleged instances, Envirocare has attempted to intervene in proceedings before the NRC for the amendment of IUSA's license in order to accept the Ashland 2 FUSRAP materials. In these proceedings, Envirocare has attempted to argue for standing on the basis that the amendment to IUSA's license would have a negative economic impact on Envirocare, despite a recent decision by the Commission finding that possible economic injury to competitors is not within the zone of interests protected by the AEA as amended by UMTRCA. Although Envirocare was dismissed from the Ashland 2 amendment proceeding on the basis of this Commission holding, IUSA has learned within the past week that Envirocare is appealing that dismissal.
In describing its involvement in the Ashland 2 proceeding, a spokesperson for Envirocare explained as follows:
We did what we could to try and stop them. . . . [Envirocare] can't do much more to stop IUC.
Tooele County Transcript Bulletin (August 25, 1998) (emphasis added). This
characterization of Envirocare's participation in the Ashland 2 amendment proceeding suggests
that the company's efforts to intervene in that proceeding were not designed to enhance the
protection of health, safety or the environment, but instead were part of an attempt to prevent
competition and protect its monopoly position in the marketplace.
There is currently a serious shortage of disposal options available for high volume, low-activity radioactive waste (i.e., materials, such as contaminated soil and rubble that are chemically, physically and radiologically similar to uranium mill tailings). Given this shortage of disposal options, along with the fact that it is extremely difficult to develop new disposal capacity for radioactive waste, there are sound public policy reasons for encouraging the creative use of existing disposal capacity available in uranium mill tailings impoundments. Up until this point I have focused on one option that is currently available and can be implemented within the existing legal and regulatory framework -- namely, processing of alternate feeds through the Mill and disposal of the resulting tailings at the Mill.
Another option is to adopt policies that allow uranium mill tailings facilities to accept non-11e.(2) materials for direct disposal. As discussed earlier, NRC itself, in its SARI, has recognized the advantages to pursuing this type of disposal option. This is particularly true with respect to materials such as such as side-stream process wastes, construction scrap, and mine water sludges that are physically, chemically, and radiologically similar to 11e.(2) byproduct material, since commingling of these types of wastes at tailings impoundments would not pose any potential hazards beyond those evaluated for the 11e.(2) disposal license.
However, co-disposal of non-11e.(2) materials in tailings impoundments raises a number of potential concerns. One concern relates to the potential for overlapping jurisdiction over tailings impoundments containing non-11e.(2) materials. For example, if a non-11e.(2) material contains RCRA hazardous wastes it could then make the entire impoundment subject to regulation by EPA under RCRA. Similar concerns regarding overlapping jurisdiction might occur if any non-11e.(2) byproduct material containing naturally occurring radioactive material (NORM) subject to state regulation were to be disposed of in a tailings impoundment. In addition, disposal of non-11e.(2) byproduct material in tailings impoundments raises questions about the eventual transfer of custody of the tailings. UMTRCA requires Title II licensees to transfer custody of their uranium mill tailings facilities to DOE upon license termination, and thereafter DOE is responsible for long-term custody and surveillance of the disposal site as a perpetual licensee of NRC. Because UMTRCA contains no provision requiring that DOE take custody of, or title to, materials other than 11e.(2) byproduct material, disposal of non-11e.(2) byproduct material in 11e.(2) tailings impoundments could pose an impediment to license termination and transfer of custody.
In order to address these concerns, NRC in 1995 issued a final guidance document on the disposal of non-11e.(2) byproduct material in uranium mill tailings impoundments (the "Non-11e.(2) Policy").(4) This guidance establishes nine criteria that facilities must meet before they can engage in disposal of non-11e.(2) byproduct material in tailings piles. However, these criteria are so burdensome that, in practice, it is extremely difficult, if not impossible, to dispose of non-11e.(2) byproduct material in tailings impoundments, despite the obvious advantages to be gained by opening up this additional disposal capacity to large volumes of material that are essentially identical to uranium mill tailings.
Considering the potentially significant public health, safety and environmental benefits of
allowing non-11e.(2) byproduct material disposal in tailings piles, IUSA believes that NRC
should revise its Non-11e.(2) Policy to be less restrictive and more workable. Specifically,
NRC should evaluate whether all nine criteria in the current policy are necessary to address
concerns regarding overlapping jurisdiction and site custody, and the Commission should be
encouraged to work cooperatively with the states and with DOE to develop creative mechanisms
for addressing these concerns (for example, by using memoranda of understanding or similar
types of agreements). A number of possible approaches to addressing these concerns were
recently presented to NRC by the National Mining Association in a white paper entitled
"Recommendations for a Coordinated Approach to the Regulation of the Uranium Recovery
Industry." NRC should be encouraged to explore these suggested approaches, and to vet them
fully with the States and with sister agencies, as appropriate. In particular, NRC should be
encouraged to lift its ban on the disposal of NORM in tailings impoundments. NRC also should
discuss with EPA and relevant states the prohibition on disposal of mixed radioactive and
hazardous waste in tailings impoundments. Finally, NRC should be encouraged to reconsider the
presumption against disposal of special nuclear material ("SNM") that is similar to 11e.(2)
Non-Agreement states (states that have not entered into agreements with NRC under AEA Section 274 to assume the Commission's regulatory responsibilities) have asserted that they possess concurrent jurisdiction, along with NRC and EPA, to regulate the non-radiological aspects of uranium mill tailings and other 11e.(2) byproduct materials. This assertion of concurrent jurisdiction has the potential to result in multiple layers of overlapping regulation, as states attempt to regulate in areas already regulated by NRC and EPA. More significantly, the exercise of such jurisdiction threatens to undermines the complex regulatory scheme enacted by Congress in UMTRCA.
For example, under the statutory scheme set out in AEA section 83, upon license termination for sites at which 11e.(2) byproduct material was produced or deposited, title to the site and to the byproduct material at the site is to be transferred to DOE or to the state in which the site is located, if the state so elects. This transfer is to be accomplished only after NRC has determined that the licensee has complied with all applicable standards and requirements under the license. However, for sites located in non-Agreement states, this system may grind to a halt if the state exercises concurrent jurisdiction over a site and there is any uncertainty as to whether all potentially applicable state standards have been fully satisfied.
Similarly, if a non-Agreement state were to impose reclamation requirements for non-radiological components in addition to the requirements imposed by NRC, and if a licensee were to find it impracticable or technologically infeasible to satisfy those state requirements, then a regulatory impasse could easily result -- where NRC would refuse to terminate the current license, DOE would refuse to take title to the site and the licensee would be unable to achieve closure of the site. Indeed, in situations where there is a possibility that a non-Agreement state might impose additional remediation requirements to address non-radiological hazards following license termination, DOE might feel compelled not to accept title, since to do so would be inconsistent with the statutory directive in AEA section 83 that such transfers to DOE are to be accomplished at no cost to the government. Clearly, this type of result is incompatible with sound public policy because it achieves less than optimized protection of public health, safety and the environment. In addition, such a result is inconsistent with one of the primary purposes of UMTRCA -- which is to ensure the timely closure of uranium mill tailings sites in an environmentally sound manner, consistent with uniform national standards.
In addition, if non-Agreement states are allowed to exercise concurrent jurisdiction over the non-radiological aspects of uranium mill tailings, a licensee in a non-Agreement state might be required by the state to take remedial actions to address non-radiological constituents in groundwater, for example, including constituents whose removal to background levels NRC may have previously determined would not optimize protection of public health, safety and the environment. Such a requirement imposed by a non-Agreement state would necessitate management and disposal of the resulting treatment wastes as 11e.(2) byproduct material -- which could substantially delay the termination of the existing NRC license (even if all NRC reclamation requirements had been met), or which could require the issuance of a new NRC byproduct material license if the non-Agreement state requirement were imposed following termination of the existing NRC license. These results would clearly run counter to the objective, inherent in UMTRCA, of managing uranium mill tailings and related wastes in a manner that optimizes protection of public health, safety and the environment.
Congress, in UMTRCA and the AEA created a unique and comprehensive scheme for the
regulation of uranium mill tailings and related 11e.(2) material. The federal role in this scheme
is pervasive, involving regulation by three separate federal agencies of all aspects of 11e.(2)
material, including the creation of the material, its management and its ultimate disposition. In
addition, unlike other materials regulated under the AEA, federal regulation of 11e.(2) byproduct
material extends to both the radiological and non-radiological aspects of the material. It is clear
from the complex and pervasive federal scheme of regulation created under UMTRCA and the
AEA, that Congress did not intend for states to exercise concurrent jurisdiction over 11e.(2)
byproduct material. This conclusion is even more apparent when one considers, as illustrated
above, how the exercise of concurrent state jurisdiction threatens to undermine Congress'
objectives in enacting UMTRCA. Accordingly, NRC should be encouraged to vigorously assert
and defend the position that non-Agreement state regulation of uranium mill tailings and other
11e.(2) byproduct material is preempted.
IUSA is in a unique position to assist DOE in achieving a final and expeditious disposition for various DOE waste streams in a manner that is protective of human health, safety and the environment, and at a cost that can be substantially lower than that of direct disposal options. By processing these DOE waste streams through its Mill, IUSA is able to recover uranium and other valuable metals that would otherwise be disposed of as waste, while at the same time reducing the radioactivity in the residual material -- the tailings -- that ultimately must be disposed.
The key element that makes the Mill a unique resource for processing and disposing of DOE materials is that the tailings and wastes generated from processing these DOE materials as alternate feed at the Mill are regulated as "11e.(2) byproduct material" under the AEA, as amended by UMTRCA. Congress, when it created this new category of regulated material in UMTRCA, had the foresight to define this material broadly, to include all wastes -- including radiological and non-radiological (i.e., "hazardous") wastes -- resulting from the processing of ores for the recovery of source materials. In addition, Congress, through the AEA (as amended by UMTRCA), created a comprehensive system for regulating 11e.(2) byproduct material, under which EPA, NRC and DOE share responsibility for ensuring that 11e.(2) byproduct material is managed in a manner that protects public health, safety and the environment from both the potential radiological hazards associated with 11e.(2) material and the potential non-radiological hazards associated with such material, with standards for non-radiological (i.e., "hazardous") components of the tailings that provides protection equivalent to that afforded under RCRA. Finally, under the system created by Congress, custody over 11e.(2) disposal sites is ultimately transferred to DOE, as a perpetual licensee of NRC, at no cost to the government. The costs of long term surveillance and maintenance to be performed by DOE are provided for out of funds set aside by the licensee.
Thus, because of the forward-looking regulatory system created by Congress to address uranium mill tailings and other 11e.(2) byproduct materials, IUSA is able to offer the following advantages for the processing and disposal of uranium-bearing DOE materials at its Mill:
(i) By processing the DOE materials as alternate feed, the Mill is able to recover uranium and other valuable minerals from feedstocks that would otherwise be disposed of as wastes, while reducing the radioactivity of the wastes that ultimately are disposed of in the Mill's tailings impoundment
(ii) A comprehensive regulatory regime for the processing of alternate feed materials at the Mill is already in place; and this regulatory regime ensures that IUSA's processing of alternate feed materials and disposal of the resulting tailings is conducted in a manner that protects public health, safety and the environment, with an appropriate margin of safety;
(iii) Processing and disposal at the Mill utilizes existing disposal capacity, at a time when there is a critical shortage of disposal capacity for high volume, low activity wastes; and
(iv) Processing and disposal of these alternate feed materials can be accomplished at the Mill at a cost that is substantially lower than other disposal options.
NRC and DOE should be encouraged to take advantage of these benefits and of the opportunities that were created by Congress when it established the current regulatory regime for 11e.(2) byproduct material. Specifically, these agencies should be encouraged to utilize the unique capabilities of IUSA's White Mesa Mill to (i) recycle uranium and other valuable metals and (ii) dispose of the resulting wastes in a manner the optimizes protection of health, safety and the environment while providing for long term surveillance and maintenance of the disposal site, all at a savings to the taxpayer. Particularly in light of the critical shortage of disposal capacity for high volume, low activity waste, the opportunities provided by the White Mesa Mill should be taken full advantage of.
1. U.S. Nuclear Regulatory Commission, Strategic Planning Framework, 9-11 (Sept. 16, 1996).
2. 57 Fed. Reg. 20525, 20532 (1992) (emphasis added).
3. In 1995, NRC issued the "Final Revised Guidance on Disposal of Non-Atomic Energy Act of 1954, Section 11e.(2) Byproduct Material in Tailings Impoundments." This guidance establishes nine criteria that facilities must satisfy before they can directly dispose of non-11e.(2) materials in uranium tailings impoundments.
4. U.S. Nuclear Regulatory Commission, Final Revised Guidance on Disposal of Non-Atomic Energy Act of 1954, section 11e.(2) Byproduct Material in Tailings Impoundments (Aug. 15, 1995).