[Federal Register Volume 74, Number 58 (Friday, March 27, 2009)]
[Pages 13483-13485]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6844]




Proposed Generic Communication; Pre-Licensing Construction 
Activities at Proposed Uranium Recovery Facilities

AGENCY: Nuclear Regulatory Commission.

ACTION: Notice of opportunity for public comment.


SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is proposing to 
issue a regulatory issue summary (RIS) to present its interpretation of 
the regulations governing the commencement of construction found in 10 
CFR 40.32(e). This Federal Register notice is available through the 
NRC's Agencywide Documents Access and Management System (ADAMS) under 
accession number ML083470668.

DATES: Comment period expires April 27, 2009. Comments submitted after 
this date will be considered if it is practical to do so, but assurance 
of consideration cannot be given except for comments received on or 
before this date.
    ADDRESSES: Submit written comments to the Chief, Uranium Recovery 
Licensing Branch, Division of Waste Management and Environmental 
Protection, Office of Federal and State Materials and Environmental 
Management Programs, U.S. Nuclear

[[Page 13484]]

Regulatory Commission, Mail Stop T-8F5, Washington, DC 20555-0001, and 
cite the publication date and page number of this Federal Register 
notice. Written comments may also be delivered to NRC Headquarters, 
11545 Rockville Pike (Room T-8F5), Rockville, Maryland, between 7:30 
a.m. and 4:15 p.m. on Federal workdays.

FOR FURTHER INFORMATION CONTACT: Mr. Stephen J. Cohen at 301-415-7182 
or by e-mail at [email protected].

Draft Regulatory Issue Summary 2009-XX, ``Pre-Licensing Construction 
Activities at Proposed Uranium Recovery Facilities''


    All holders of operating licenses for uranium recovery facilities 
and all companies that have submitted applications to construct new 
uranium recovery facilities of all types (conventional mills, heap 
leach, and in situ recovery (ISR) facilities) or letters of intent to 
submit such applications.


    The U.S. Nuclear Regulatory Commission (NRC) is issuing this 
regulatory issue summary (RIS) to inform addressees of the NRC's policy 
regarding pre-licensing construction activities at proposed uranium 
recovery facilities. The NRC is issuing this RIS in response to 
industry inquiries regarding the activities that applicants may 
undertake prior to receiving a license.


    In relation to the applications for new uranium recovery facilities 
currently under review and those applications expected over the next 
several years, the NRC has been queried by the uranium recovery 
industry about those construction activities that would be permissible 
at proposed uranium recovery facilities before a license is granted. 
The industry has requested information on such pre-licensing 
construction activities, including the potential use of limited work 
authorizations (LWAs) as provided in the reactor program, in the 
interest of minimizing the lead time from receipt of a license to the 
initiation of uranium recovery operations.

Summary of Issue

    The NRC's regulations in 10 CFR 40.32(e) state that ``commencement 
of construction'' of a uranium recovery facility prior to issuance of a 
license is grounds for license denial. The term ``commencement of 
construction'' means ``any clearing of land, excavation, or other 
substantial action that would adversely affect the environment of a 
site.'' The term does not mean ``site exploration, roads necessary for 
site exploration, borings to determine foundation conditions, or other 
preconstruction monitoring or testing to establish background 
information related to the suitability of the site or the protection of 
environmental values.'' Such activities may thus be conducted before a 
license is granted.
    In a Staff Requirements Memorandum (SRM)-M081211, the Commission 
directed the staff to budget resources to develop a proposed rulemaking 
to revise 10 CFR 40.32(e) to determine whether a limited work 
authorization provision is appropriated for in-situ uranium facilities. 
Information gathered through the process described in this RIS will be 
used to support development of such a proposed rulemaking.
    ISR Industry representatives, through their legal counsel, 
presented their opinions to staff regarding the applicability of 10 CFR 
40.32(e) to ISR facilities during a meeting on November 18, 2008. 
Industry's position is that 10 CFR 40.32(e) is not applicable to ISR 
facilities, based on the rulemaking history of this regulation as 
reflected in the 1980 Federal Register notice publishing the final 
rule. In a November 18, 2008 White Paper, the ISR industry argues as 

    This 1980 final rule promulgated and finalized a number of 
UMTRCA-specific regulations, including what the Commission referred 
to as ``siting and design criteria'' for newly proposed conventional 
uranium milling facilities (October 3, 1980; 45 FR 65521). One of 
these regulations was a newly proposed 10 CFR 40.32(e) that dealt 
directly with the extent to which a proposed conventional uranium 
mill project site could be developed and constructed pursuant to 
these ``siting and design criteria'' prior to the issuance of a 
uranium milling license. This new 10 CFR 40.32(e) imposed a 
requirement on the Director of NRC's then-named Office of Nuclear 
Material Safety and Safeguards (NMSS) (now Office of Federal and 
State Materials and Environmental Management Programs) to make ``a 
positive finding on an applicant's proposed plans as meeting the 
requirements and objectives in Appendix A prior to commencement of 
construction of a mill which produces byproduct material.''

    Industry further stated the following:

    Based on this requirement, the Commission concluded in the 
regulation that ``[c]ommencement of construction prior to this 
conclusion is grounds for denial of a license to possess and use 
source and byproduct material in the plant or facility.'' (10 CFR 
40.32(e)). Therefore, ``the denial of applications for licenses 
where construction is started before the appropriate environmental 
appraisals are completed and documented'' is required.
    However, it is crystal-clear from NRC's accompanying explanatory 
language that this requirement is to be imposed only on a conventional 
``mill which produces byproduct material'' as tailings, where it 
states: ``Construction activities are likely to result in significant 
and long lasting environmental impacts, the propriety of which cannot 
be ascertained until these environmental appraisals are completed and 

    In addition, to support its claim that 10 CFR 40.32(e) applies only 
to conventional mills, the ISR industry paper states:

    Given that each mill tailings pile constitutes a low-level waste 
burial site containing long lived radioactive materials, * * * 
prudence requires that specific methods of tailings disposal, mill 
decontamination, site reclamation, surety arrangements, and 
arrangements to allow for transfer of site and tailings ownership be 
worked out and approved before a license is granted.
(October 3, 1980; 45 FR 65521).

    According to industry, ISR applicants, therefore, should be allowed 
to build out most of the facilities in three tiers. Tier 1 includes 
activities over which NRC would have no jurisdiction, such as:
     Laying foundations and construction of all support 
     Laying of foundations for processing facilities;
     Construction of ancillary facilities (i.e., roads, parking 
lots, access controls, power lines);
     Installation of water and sanitary systems;
     Drilling of disposal wells.
    Tier 2 activities would include those requiring NRC approval, but 
not a license, such as the following:
     Construction of processing facilities;
     Drilling of injection and production wells;
     Installation of wellfield pipelines.
    Tier 3 activities would not occur until a license is issued and 
would include construction of the evaporation ponds and engaging in 
uranium recovery operations.
    NRC staff does not agree with industry's interpretation of 10 CFR 
40.32(e). This regulation uses the terms ``uranium milling'' and 
``byproduct material,'' each of which is specifically defined in 10 CFR 
40.4. The term ``uranium milling'' means ``any activity that results in 
the production of byproduct material as defined in this part.'' The 
term ``byproduct material'' means ``the tailings or wastes produced by 
the extraction or concentration of uranium or thorium from any ore

[[Page 13485]]

processed primarily for its source material content, including discrete 
surface wastes resulting from uranium solution extraction processes.'' 
These definitions were added to 10 CFR Part 40 in a 1979 final 
rulemaking that the ISR industry paper does not discuss.
    The NRC's regulations in 10 CFR Part 50 (Domestic Licensing of 
Production and Utilization Facilities) include an LWA process that 
allows the NRC to approve the conduct of certain construction 
activities in advance of the issuance of a construction permit or 
combined license. However, there are no similar provisions in 10 CFR 
Part 40 for the use of LWAs in the licensing of uranium recovery 
facilities. Therefore, if an applicant wishes to perform pre-licensing 
construction activities apart from those permitted under 10 CFR 
40.32(e), an exemption request must be submitted for the staff's 
review. The exemption request must specify the particular activity, the 
purpose and need for the activity, the duration of the activity, and 
the potential impacts to human health and the environment. The request 
should include drawings that provide construction details and the 
location of the proposed activity.
    Depending on the specific activities included in the exemption 
request, the staff's review may include an environmental assessment 
pursuant to the requirements of 10 CFR Part 51 (Environmental 
Protection Regulations for Domestic Licensing and Related Regulatory 
Functions), consistent with the guidance in NUREG-1748 (Environmental 
Review Guidance for Licensing Actions Associated with NMSS Programs). 
Exemption requests will be reviewed on a case-by-case basis and the 
granting of any exemptions does not ensure subsequent approval of a 
license. As such, any construction activities performed by the 
applicant under an exemption and prior to the issuance of a license are 
performed at the applicant's risk.

Voluntary Response Requested

    All addressees and the public are requested to voluntarily submit 
comments regarding the pre-licensing policy presented in this RIS. To 
be of use to the NRC, responses should be submitted within 30 days of 
the date of this summary.

Congressional Review Act

    This RIS is not a rule as designated in the Congressional Review 
Act (5 U.S.C. 801-886) and, therefore, is not subject to the Act.

Paperwork Reduction Act Statement

    This draft RIS does not contain new or amended information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). Existing requirements were approved by the 
Office of Management and Budget, approval numbers 3150-0020 and 3150-

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a request for information or an information collection 
unless the requesting document displays a currently valid OMB clearance 


    This RIS requires no specific action or written response. If you 
have any questions about this summary, please contact the technical 
contact listed below.
    Technical Contact: Stephen J. Cohen, DWMEP/URLB, (301) 415-7182, e-
mail: [email protected].

    Note: The NRC's generic communications may be found on the NRC 
public Web site, http://www.nrc.gov, under Electronic Reading Room/
Document Collections.

End of Draft Regulatory Issue Summary

    Documents may be examined, and/or copied for a fee, at the NRC's 
Public Document Room at One White Flint North, 11555 Rockville Pike 
(first floor), Rockville, Maryland. Publicly available records will be 
accessible electronically from the Agencywide Documents Access and 
Management System (ADAMS) Public Electronic Reading Room on the 
Internet at the NRC Web site, http://www.nrc.gov/NRC/ADAMS/index.html. 
If you do not have access to ADAMS or if you have problems in accessing 
the documents in ADAMS, contact the NRC Public Document Room (PDR) 
reference staff at 1-800-397-4209 or 301-415-4737 or by e-mail to 
[email protected].

    Dated at Rockville, Maryland, this 20th day of March 2009.

    For the Nuclear Regulatory Commission.
Keith I. McConnell, Deputy Director,
Decommissioning and Uranium Recovery Licensing Directorate, Division of 
Waste Management, and Environmental Protection, Office of Federal and 
State Materials, and Environmental Management Programs.
[FR Doc. E9-6844 Filed 3-26-09; 8:45 am]