[Federal Register Volume 84, Number 21 (Thursday, January 31, 2019)]
[Proposed Rules]
[Pages 574-578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-00435]
=======================================================================
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
10 CFR Part 40
[NRC-2008-0421]
RIN 3150-AI40
Ground Water Protection at Uranium In Situ Recovery Facilities
AGENCY: Nuclear Regulatory Commission.
ACTION: Request for comment.
-----------------------------------------------------------------------
SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is requesting
views from interested stakeholders on whether the NRC should resume
rulemaking to amend its regulations governing the domestic licensing of
source material by codifying general requirements to address ground
water protection at uranium in situ recovery (ISR) facilities. The NRC
currently regulates ISR operations through application of regulations
that primarily focus on conventional uranium mills and site-specific
license conditions. The NRC initiated rulemaking in 2006 to develop
requirements to provide regulatory consistency and improve the
efficiency of the ISR licensing process but placed this rulemaking on
hold in 2010. Information provided to the NRC during the public comment
period will be factored into the decision as to whether the NRC will
continue this rulemaking.
DATES: Submit comments by March 4, 2019. Comments received after this
date will be considered if it is practical to do so, but the NRC is
able to ensure consideration only for comments received on or before
this date. The NRC will not prepare written responses to each
individual comment but will consider each in determining the path
forward for this rulemaking.
ADDRESSES: You may submit comments by any of the following methods:
Federal Rulemaking Website: Go to http://www.regulations.gov and search
[[Page 575]]
for Docket ID NRC-2008-0421. Address questions about NRC dockets to
Carol Gallagher; telephone: 301-415-3463; email:
[email protected]. For technical questions contact the
individuals listed in the FOR FURTHER INFORMATION CONTACT section of
this document.
Email comments to: [email protected]. If you do
not receive an automatic email reply confirming receipt, then contact
us at 301-415-1677.
Fax comments to: Secretary, U.S. Nuclear Regulatory
Commission at 301-415-1101.
Mail comments to: Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, ATTN: Rulemakings and
Adjudications Staff.
Hand deliver comments to: 11555 Rockville Pike, Rockville,
Maryland 20852, between 7:30 a.m. and 4:15 p.m. (Eastern Time) Federal
workdays; telephone: 301-415-1677.
For additional direction on obtaining information and submitting
comments, see ``Obtaining Information and Submitting Comments'' in the
SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Andrew G. Carrera, telephone: 301-415-
1078; email: [email protected]; or Gary Comfort, telephone: 301-
415-8106; email: [email protected]. Both are staff of the Office of
Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001.
SUPPLEMENTARY INFORMATION:
I. Obtaining Information and Submitting Comments
A. Obtaining Information
Please refer to Docket ID NRC-2008-0421 when contacting the NRC
about the availability of information for this action. You may obtain
publicly-available information related to this action by any of the
following methods:
Federal Rulemaking Website: Go to http://www.regulations.gov and search for Docket ID NRC-2008-0421.
NRC's Agencywide Documents Access and Management System
(ADAMS): You may obtain publicly-available documents online in the
ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``Begin Web-based ADAMS
Search.'' For problems with ADAMS, please contact the NRC's Public
Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or
by email to [email protected]. For the convenience of the reader,
instructions about obtaining materials referenced in this document are
provided in the ``Availability of Documents'' section.
NRC's PDR: You may examine and purchase copies of public
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555
Rockville Pike, Rockville, Maryland 20852.
B. Submitting Comments
Please include Docket ID NRC-2008-0421 in your comment submission.
The NRC cautions you not to include identifying or contact
information that you do not want to be publicly disclosed in your
comment submission. The NRC will post all comment submissions at http://www.regulations.gov as well as enter the comment submissions into
ADAMS. The NRC does not routinely edit comment submissions to remove
identifying or contact information.
If you are requesting or aggregating comments from other persons
for submission to the NRC, then you should inform those persons not to
include identifying or contact information that they do not want to be
publicly disclosed in their comment submission. Your request should
state that the NRC does not routinely edit comment submissions to
remove such information before making the comment submissions available
to the public or entering the comment into ADAMS.
II. Background
In situ recovery is a method used to extract uranium from
underground ore bodies without physical excavation. It is also known as
``solution mining'' or in situ leaching. In the ISR process, a solution
called lixiviant is pumped into the subsurface. In the United States,
lixiviant typically contains water mixed with oxygen and/or hydrogen
peroxide, as well as sodium carbonate or carbon dioxide. The lixiviant
dissolves the uranium, located in the underground ore body, into the
solution. The solution is then pumped to the surface, where it
undergoes additional processing and concentration to produce a solid
form of uranium called ``yellowcake.'' The yellowcake is ultimately
used in the manufacture of fuel for nuclear reactors.
The licensed area of a typical uranium ISR facility covers several
square miles and may include several discrete or contiguous wellfields,
some of which may be operating while others may be in restoration or
decommissioning. Each ISR wellfield is composed of a series of
injection and extraction wells drilled into a uranium ore body that has
been identified in a subsurface geologic formation within the
wellfield. The aquifer within the formation where the ore body is
located is commonly referred to as the ``ore zone aquifer''. Currently,
there are six ISR facilities operating in the United States.
Uranium ISR was introduced in the late 1970s as an alternative to
conventional uranium recovery, which involves extracting uranium ore
from the earth, typically through deep underground shafts or shallow
open pits. Ore extracted by conventional uranium recovery is
transported to a mill, where it is crushed and undergoes a chemical
process to remove the uranium. The uranium is then concentrated to
produce yellowcake. The sandy waste resulting from crushing the uranium
ore is known as ``uranium mill tailings'' or ``tailings.'' Tailings
contain heavy metals and radioactive constituents, such as radium.
Alternatively, uranium may be recovered from the ore using a heap leach
process. In the heap leach process, the ore is placed on an engineered
barrier and sprayed with acid. The uranium dissolves into solution and
is collected at the engineered barrier. The solution undergoes
additional chemical processing to produce yellowcake. Currently, there
is one operating conventional uranium mill and there are no operating
heap leach facilities in the United States.
The NRC licenses ISR facilities under part 40 of title 10 of the
Code of Federal Regulations (10 CFR), ``Domestic Licensing of Source
Material,'' because these facilities possess and use source
material.\1\ The possession and use of source material are activities
that require a license from the NRC under the Atomic Energy Act of
1954, as amended (AEA).\2\ The waste (tailings) generated as a result
of the ISR process falls within a category of byproduct material
defined in section 11e.(2) of the AEA. Specifically, in section
11e.(2), byproduct material is defined as ``the tailings or wastes
produced by the extraction or concentration of uranium or thorium from
any ore processed
[[Page 576]]
primarily for its source material content.'' \3\
---------------------------------------------------------------------------
\1\ The term ``source material'' is defined as ``(1) Uranium or
thorium, or any combination thereof, in any physical or chemical
form or (2) ores which contain by weight one-twentieth of one
percent (0.05%) or more of: (i) Uranium, (ii) thorium or (iii) any
combination thereof.'' 10 CFR 40.4, ``Definitions''.
\2\ AEA, Sec. 62, 42 U.S.C. 2092 (``Unless authorized by a
general or specific license issued by the [Nuclear Regulatory]
Commission . . . no person may transfer or receive in interstate
commerce, transfer, deliver, receive possession of or title to, or
import into or export from the United States any source material
after removal from its place of deposit in nature . . .'').
\3\ AEA, Sec. 11e.(2); 42 U.S.C. 2014(e)(2). In 10 CFR 40.4,
the NRC further defines section 11e.(2) byproduct material as ``the
tailings or wastes produced by the extraction or concentration of
uranium or thorium from any ore processed primarily for its source
material content, including discrete surface wastes resulting from
uranium solution extraction processes. Underground ore bodies
depleted by such solution extraction operations do not constitute
`byproduct material' within this definition.''
---------------------------------------------------------------------------
Under the Uranium Mill Tailings Radiation Control Act of 1978
(UMTRCA) (Pub. L. 95-604), the NRC is responsible for regulating
section 11e.(2) byproduct material at sites where such material is
generated. Congress enacted UMTRCA to provide public health, safety,
and environmental protection from the radiological and non-radiological
hazards associated with the processing, possession, transfer, and
disposal of AEA section 11e.(2) byproduct material. The UMTRCA amended
the AEA by adding to it the section 11e.(2) definition of byproduct
material and sections 84 and 275.
The AEA, as amended by UMTRCA, established a dual regulatory scheme
over the domestic uranium milling industry between the U.S.
Environmental Protection Agency (EPA) and the NRC. Under section 275b.
of the AEA, the EPA is authorized to issue standards of general
applicability for the protection of health, safety, and the environment
from radiological and non-radiological hazards associated with the
processing of section 11(e)(2) byproduct material.\4\ Under AEA section
84,\5\ the NRC or the appropriate Agreement State \6\ is responsible
for implementing the EPA's generally applicable standards. In this
regard, the NRC or the applicable Agreement State entity is the
regulatory or licensing agency for all uranium recovery facilities,
including ISR facilities, and is responsible for inspecting the
facility and enforcing the terms and conditions of the operating
license.\7\
---------------------------------------------------------------------------
\4\ 42 U.S.C. 2022(b).
\5\ 42 U.S.C. 2114.
\6\ Section 274 of the AEA authorizes the NRC to relinquish or
discontinue its regulatory authority over certain categories of
radioactive material to a State following a duly executed agreement
between the NRC and the governor of the State. 42 U.S.C. 2021. After
the agreement is entered into, the State, now an ``Agreement
State,'' must promulgate or adopt regulations compatible to those
NRC regulations that govern the subject matter areas relinquished to
the Agreement State.
\7\ AEA Sec. 275b.(2); 42 U.S.C. 2022(b)(2) (``no permit issued
by the [EPA] Administrator is required under this Act or the
[Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.] for
the processing, possession, transfer, or disposal of [section
11e.(2)] byproduct material'').
---------------------------------------------------------------------------
The EPA first issued generally applicable standards on October 7,
1983 (48 FR 45926) and updated these standards on November 15, 1993 (58
FR 60340). The EPA codified these standards into its regulations at 40
CFR part 192, ``Health and Environmental Protection Standards for
Uranium and Thorium Mill Tailings,'' subpart D, ``Standards for
Management of Uranium Byproduct Materials Pursuant to Section 84 of the
Atomic Energy Act of 1954, as amended.'' The NRC issued its
implementing regulations on October 16, 1985 (50 FR 41852) and further
amended them in subsequent rulemakings.\8\ The NRC codified its
implementing regulations at 10 CFR part 40, ``Domestic Licensing of
Source Material,'' appendix A, ``Criteria Relating to the Operation of
Uranium Mills and the Disposition of Tailings or Wastes Produced by the
Extraction or Concentration of Source Material from Ores Processed
Primarily for their Source Material Content.''
---------------------------------------------------------------------------
\8\ Substantive amendments include 52 FR 43553 (November 13,
1987) (NRC conforming amendments not covered in the October 16, 1985
rule); 53 FR 19240 (May 27, 1988) (record retention periods); 59 FR
28220 (June 1, 1994) (emplacement of final radon barrier on
conventional mill tailings piles); and 76 FR 35512 (June 17, 2011)
(financial assurance requirements associated with decommissioning
planning).
---------------------------------------------------------------------------
In the 1990s, ISR operations became the predominant means of
extracting uranium in the United States. In COMJSM-06-0001,
``Regulation of Groundwater Protection at In Situ Leach Uranium
Extraction Facilities,'' dated January 17, 2006 (ADAMS Accession No.
ML060830041), NRC Commissioner Merrifield stated:
[W]hile the staff has done its best to regulate [ISR] licensees
through the generally applicable requirements in Part 40 and
imposition of license conditions, our failure to promulgate specific
regulations for [ISRs] has resulted in an inconsistent and
ineffective regulatory program. We have been attempting to force a
square peg into a round hole for years, and I believe we should
finally remedy this situation through notice and comment rulemaking.
In developing a proposed rule, the staff should formulate a
regulatory framework that is tailored specifically to this unique
group of licensees.
In the Commission's subsequent staff requirements memorandum, dated
March 23, 2006 (ADAMS Accession No. ML060820503), the Commission
approved the initiation of a rulemaking for the purpose of providing
clarity, predictability, and consistency to the licensing and
regulation of ISR facilities.
In 2010, the EPA informed the NRC that it would undertake its own
rulemaking effort to issue generally applicable standards for ISRs. The
NRC then deferred its ongoing ISR rulemaking effort, prior to the
publication of a proposed rule, in anticipation of the need to conform
its implementing regulations to the generally applicable standards to
be issued by the EPA. The EPA issued its proposed rule on January 26,
2015 (80 FR 4156). Subsequently, the EPA decided to re-propose the rule
and seek additional public comment. The EPA issued the re-proposed
rule, superseding the January 2015 proposed rule, on January 19, 2017
(82 FR 7400). The NRC had jurisdictional and technical concerns with
both the January 2015 and January 2017 proposed rules and submitted
comments addressing these concerns on July 18, 2017 (ADAMS Accession
No. ML17173A638).
On October 30, 2018 (83 FR 54543), the EPA withdrew its proposed
rule. The EPA concluded, based on comments from stakeholders, that it
had serious questions concerning whether it has the legal authority
under UMTRCA to issue the regulations as provided in the 2017 proposed
rule. The EPA also concluded that the existing regulatory framework was
sufficient to ensure the protection of public health and the
environment at existing ISRs. Finally, the EPA stated that, given
current and foreseeable market conditions, the uranium recovery
industry was not likely to have the robust growth that was anticipated
in the 2000s. Given the EPA's withdrawal of its proposed rule, the NRC
must now decide whether to proceed with its 2006 ISR-specific
rulemaking, held in abeyance since 2010.
III. Discussion
The current version of appendix A to 10 CFR part 40 provides a
generic set of regulations for the operation of conventional uranium
mills. With respect to the NRC's licensing of ISR facilities, the
current regulations in appendix A, coupled with the conditions of ISR
site-specific licenses and the NRC's ongoing oversight of the
licensees' operations, provide adequate protection to the public health
and safety and the environment. The NRC's purpose in promulgating a
generic set of regulations for the operation of ISRs is to standardize
existing NRC ISR licensing and oversight practices and to ensure
consistency in the NRC staff's evaluation and approval of ISR license
applications. In addition, the promulgation of generic regulations for
ISR facilities would provide a national regulatory framework from which
Agreement States can, in turn, promulgate their own compatible
regulatory standards. If the NRC continues with this rulemaking, the
amendments to appendix A would be
[[Page 577]]
based upon many of the license conditions that are contained in current
NRC-issued site-specific ISR licenses and would be further informed by
the approved methodologies and best practices set forth in those NRC
guidance documents that are applicable to ISR activities.
ISR operations are substantially different from those of
conventional uranium milling, including the measures taken to ensure
the protection of groundwater. The requirements for groundwater
protection at conventional uranium mills are mainly concerned with the
prevention, detection, and correction of contamination in shallow
aquifers from seepage and leaks associated with the long-term
management of mill tailings impoundments. At ISR facilities, however,
the main concern is contamination of the surrounding groundwater by the
short-term degradation of the water quality in the ore zone aquifer
during ISR operations. Specifically, the groundwater chemistry in the
ore zone aquifer is altered by the injection of lixiviant, which along
with dissolving the uranium located in the underground ore body, also
mobilizes hazardous constituents such as metals and radionuclides like
radium. If the lixiviant is not controlled within the ore zone aquifer,
then these hazardous constituents may migrate outside the ISR wellfield
and potentially contaminate surrounding groundwater and connected
surface water. Therefore, the NRC and the Agreement States have
included license conditions in ISR licenses requiring ISR licensees to
satisfy certain technical criteria that will protect surrounding
groundwater during ISR operations and restore the water quality in ore
zone aquifers after ISR operations. Unlike conventional mill tailings
impoundments that require long-term management for groundwater
protection, ISR wellfields may be decommissioned and the ISR license
terminated once groundwater restoration requirements are met.
The NRC initiated the ISR rulemaking in 2006 to provide regulatory
predictability and consistency to the licensing process for ISRs. By
establishing a generic set of requirements for ISR activities, the rule
would improve regulatory efficiency and make the NRC's review process
for ISR license applications and amendments more consistent and
transparent to the public and industry.
Most ISR facilities currently in operation are licensed by
Agreement States. One of the requirements of the NRC's Agreement State
program is that the regulations of an Agreement State must be
``compatible'' with the NRC's regulatory program.\9\ Therefore, in
accordance with the NRC's Agreement State program, the promulgation of
an NRC rulemaking specific to ISR facilities would require Agreement
States to conform their regulations, to the extent appropriate, to the
new or amended NRC regulations. The benefit of having Agreement States
conform their regulations would be the establishment of a relatively
uniform \10\ set of both groundwater protection and radiation health
and safety requirements for ISR facilities nationwide.
---------------------------------------------------------------------------
\9\ Agreement State Program Policy Statement, 82 FR 48535-39
(October 18, 2017); see also id. at 48536-37 (``The NRC and the
Agreement States have the responsibility to ensure that the
radiation control programs are compatible. Such radiation control
programs should be based on a common regulatory philosophy including
the common use of definitions and standards. The programs should be
effective and cooperatively implemented by the NRC and the Agreement
States and also should provide uniformity and achieve common
strategic outcomes in program areas of national significance.'').
\10\ Based upon the compatibility category (see id. at 48538-39)
that the NRC assigns to each new or amended regulation, Agreement
States should have a substantial degree of flexibility in
promulgating their conforming regulations. Id. at 48537 (``With the
exception of those compatibility areas where programs should be
essentially identical, Agreement State radiation control programs
have flexibility in program implementation and administration to
accommodate individual State preferences, State legislative
direction, and local needs and conditions.'').
---------------------------------------------------------------------------
In light of the EPA's withdrawal of its January 2017 proposed rule,
the NRC is now conducting an assessment of the requirements in 10 CFR
part 40 appendix A pertaining to the licensing of ISRs and is
requesting input from members of the public about the topics discussed
in the ``Request for Comments'' section. The information received from
this request will be factored into the decision whether to continue
this rulemaking.
IV. Request for Comments
The NRC welcomes general comments and seeks comments in response to
the numbered items in this section. In responding to these numbered
items, please provide your rationale or justification for your
position. In addition, please provide a discussion of any factors that
you considered in providing your opinion and any recommendations to
assist the NRC in improving its regulatory process. The factors that
the NRC must consider in determining whether to proceed with this
rulemaking include technical feasibility, a cost-benefit analysis, and
consistency and clarity of applicable regulations for the adequate
protection of the health and safety and the environment.
1. If the NRC were to proceed with its ISR rulemaking that has been
held in abeyance since 2010, the NRC would amend its current uranium
milling regulations in appendix A to 10 CFR part 40 to add ISR-specific
requirements. Should the NRC proceed with this rulemaking?
2. Please identify any issues that should be addressed to protect
groundwater at ISR facilities, in either this rulemaking or through the
development of guidance documents.
3. Please identify any issues that should be addressed to enhance
public or occupational safety at ISR facilities, in either this
rulemaking or through the development of guidance documents.
4. Please identify any issues that should be addressed to establish
a relatively uniform set of requirements for ISR facilities nationwide
(both in Agreement States and in non-Agreement States).
VI. Availability of Documents
The documents identified in the following table are available to
interested persons through one or more of the following methods, as
indicated.
------------------------------------------------------------------------
ADAMS accession No./
Document Federal Register citation
------------------------------------------------------------------------
COMJSM-06-0001, ``Regulation of Groundwater ML060830041
Protection at In Situ Leach Uranium
Extraction Facilities,'' dated January 17,
2006.
Staff Requirements Memorandum-COMJSM-06-0001, ML060820503
``Regulation of Groundwater Protection at In
Situ Leach Uranium Extraction Facilities,''
dated March 23, 2006.
[[Page 578]]
``40 CFR Part 192, Health and Environmental 82 FR 7400
Protection Standards for Uranium and Thorium
Mill Tailings; Proposed Rule,'' January 19,
2017.
``40 CFR Part 192, Health and Environmental 83 FR 54543
Protection Standards for Uranium and Thorium
Mill Tailings; Proposed Rule; Withdrawal,''
October 30, 2018.
NUREG-1569, ``Standard Review Plan for In ML032310005
Situ Leach Uranium Extraction License
Applications: Final Report,'' June 2003.
``NRC Staff's Comments on EPA Proposed ML17173A638
Rulemaking for 40 CFR Part 192 Rule, 82 FR
7400,'' July 17, 2017.
``40 CFR Part 192, Environmental Standards 48 FR 45926
for Uranium and Thorium Mill Tailings at
Licensed Commercial Processing Sites; Final
Rule,'' October 7, 1983.
``40 CFR Part 192, Environmental Standards 58 FR 60340
for Uranium and Thorium Mill Tailings at
Licensed Commercial Processing Sites; Final
Rule,'' November 15, 1993.
``Uranium Mill Tailings Regulations; 50 FR 41852
Conforming NRC Requirements to EPA
Standards; Final Rule,'' October 16, 1985.
``40 CFR Part 192, Health and Environmental 80 FR 4156
Protection Standards for Uranium and Thorium
Mill Tailings; Proposed Rule,'' January 26,
2015.
------------------------------------------------------------------------
Throughout the development of this assessment, the NRC may post
related documents, including public comments, on the Federal rulemaking
website at http://www.regulations.gov under Docket ID NRC-2008-0421.
The Federal rulemaking website allows you to receive alerts when
changes or additions occur in a docket folder. To subscribe: (1)
Navigate to the docket folder (NRC-2008-0421); (2) click the ``Sign up
for Email Alerts'' link; and (3) enter your email address and select
how frequently you would like to receive emails (daily, weekly, or
monthly).
Dated at Rockville, Maryland, this 28th day of January 2019.
For the Nuclear Regulatory Commission.
Theresa V. Clark,
Deputy Director, Division of Rulemaking, Office of Nuclear Material
Safety and Safeguards.
[FR Doc. 2019-00435 Filed 1-30-19; 8:45 am]
BILLING CODE 7590-01-P