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1	Radioactive Mine and Low-Level Radioactive Waste Regulation In The 21st Century Anthony J. Thompson ShawPittman, Washington, D.C.
2	I. INTRODUCTION - Are Existing And Past Uranium Recovery (UR) And LLRW Regulations Prologue For Future Radioactive Mine Waste Regulation? 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.
3	Introduction Cont’d Four Entities That Impact UR Recovery, LLRW, and NORM Regulation Include NRC EPA DOE Interstate Compacts We Address Each Below.
4	II. NUCLEAR REGULATORY COMMISSION (NRC) Uranium Recovery (UR) Operations Regulatory Program; Low Level Radioactive Waste (LLRW) Regulatory Program.
5	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 Reforms. Goal Of White Paper: Establish A Rational, Coordinated Framework For Regulation Of UR Activities.
6	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.
7	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.
8	Nuclear Regulatory Commission (NRC) Cont’d Practical Implications of Concurrent Jurisdiction: 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
9	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 Material; Concurrent Jurisdiction Conflicts With The Statute And Frustrates Congress’ Purpose Of Ensuring Timely Disposition of Tailings Under Uniform National Standards.
10	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
11	Nuclear Regulatory Commission (NRC) Cont’d Direct Disposal of Non-11e.(2) Byproduct Material In Uranium Mill Tailings Impoundments: 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
12	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
13	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
14	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 License.
15	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
16	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.
17	Nuclear Regulatory Commission (NRC) Cont’d 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.
18	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 Policy.10
19	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.)
20	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” (POC).12 The Standard Limits That Must be Achieved are Maximum Contaminant Levels ("MCLs"),  Background, Whichever Is Higher;
21	Nuclear Regulatory Commission (NRC) Cont’d Or, the Regulations Allow the Licensee to Propose ACLs for One or More Relevant Constituents; 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 Exposed.
22	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”.
23	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.
24	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
25	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
26	Nuclear Regulatory Commission (NRC) Cont’d B. Low Level Radioactive Waste 1. NRC Decommissioning & Decontamination Rules. 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
27	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; and, What are the conditions for control or disposal of such waste.
28	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
29	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.
30	Nuclear Regulatory Commission (NRC) Cont’d 1997 NRC issues final D&D regulations19 25 mrem/y for all pathways risk limit for 1,000 years plus ALARA for unrestricted use; 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;
31	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 community.
32	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 years.20
33	Nuclear Regulatory Commission (NRC) Cont’d Restricted Use and ICs NRC D&D regulations21 - 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).
34	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
35	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;
36	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’ ROD; Informational devices (Deed Notations) are most likely to be used as a secondary “layer” to help insure the overall reliability of other ICs.
37	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.
38	Nuclear Regulatory Commission (NRC) Cont’d Responsibilities of the enforcer may include: Making periodic site inspections to ensure that prohibited activities are not taking place; 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.
39	Nuclear Regulatory Commission (NRC) Cont’d 2. Guidance Site Characterization and Cleanup Verification 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 radionuclides.
40	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 application.
41	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 thereof. Raised question of reducing the licensable level to less than 0.05%.
42	Nuclear Regulatory Commission (NRC) Cont’d
43	III. ENVIRONMENTAL PROTECTION AGENCY (EPA)
44	ENVIRONMENTAL PROTECTION AGENCY (EPA) Cont’d
45	ENVIRONMENTAL PROTECTION AGENCY (EPA) Cont’d
46	ENVIRONMENTAL PROTECTION AGENCY (EPA) Cont’d
47	ENVIRONMENTAL PROTECTION AGENCY (EPA) Cont’d
48	ENVIRONMENTAL PROTECTION AGENCY (EPA) Cont’d Draft expresses no preference for permanent remedies; Result -- may lead to creation of more Superfund sites.
49	ENVIRONMENTAL PROTECTION 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
50	ENVIRONMENTAL PROTECTION 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 mrem/y; 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 w/Radium. Disposal of TENORM in UR tailings impoundment or other AEA licensed disposal facility or in accordance w/authorized Agency alternatives.
51	ENVIRONMENTAL PROTECTION 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 industries:33 UR is first on the list; Designed to be information gathering and not for regulation.
52	ENVIRONMENTAL PROTECTION 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.
53	ENVIRONMENTAL PROTECTION 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.
54	ENVIRONMENTAL PROTECTION 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.
55	ENVIRONMENTAL PROTECTION 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.
56	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).
57	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.
58	V. COMPACT SYSTEMS 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 stopped.”38
59	V. COMPACT SYSTEMS Cont’d 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.
60	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.
61	Summary Cont’d Risk-informed performance based regulation works and has established a foothold: Pre-1978 11e.(2) issue has elevated the risk based regulatory approach to public debate. Performance based licensing is established at NRC even with reactors (eg. 10CFR 50.59).
62	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 reality. Eg; Pump and treat is too expensive and often ineffective so:  ACL’s;  Supplemental standards.
63	Summary Cont’d Long term stewardship and restricted use make sense:  IC’s
64	Summary Cont’d Duplicative Regulation Will Continue to Be a Problem:  D&D Rule Conflict  Mixed Waste
65	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.
66	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;
67	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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