[Federal Register Volume 59, Number 246 (Friday, December 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31568]
[[Page Unknown]]
[Federal Register: December 23, 1994]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 40-8681 (License No. 1358)]
Energy Fuels Nuclear, Inc.; Issuance of Director's Decision Under
10 CFR 2.206
Notice is hereby given that the Director, Office of Nuclear
Material Safety and Safeguards (Director), has issued a decision
concerning a Petition dated May 2, 1994, submitted by the Honorable
Michael O. Leavitt, Governor of the State of Utah, and the Utah State
Legislature pursuant to 10 CFR 2.206.
The Petition requested that the U.S. Nuclear Regulatory Commission
modify Source Material License No. SUA-1358 to limit authority of the
Licensee, currently Energy Fuels Nuclear, Inc. (Umetco Minerals
Corporation when the Petition was submitted), to dispose of Section
11.e.(2) material at the White Mesa Uranium Mill facility to 5,000
cubic yards per single source. The Petition also requested that the NRC
confer with the State of Utah and provide opportunity for comment prior
to the issuance of license amendments involving uranium mill tailings
disposal in Utah. Finally, Petitioners requested that the NRC obtain
the concurrence of the Governor and Legislature of the State of Utah
before issuing license amendments involving disposal of uranium mill
tailings in Utah.
After review of the Petition, the Director has determined to grant
Petitioners' request to modify Source Material License No. SUA-1358.
Petitioners' request to confer with the State of Utah was granted
insofar as the NRC shall provide to the State of Utah direct and
Federal Register notice of significant materials license applications
concerning NRC-licensed activity in the State of Utah, and thereby
provide an opportunity to comment. Petitioners' request that the NRC
obtain the concurrence of the State of Utah before taking licensing
actions involving mill tailing disposal in the State of Utah was
denied. The reasons for this Decision are explained in a ``Director's
Decision Under 10 C.F.R. Sec. 2.206'' (DD-94-10), which is available
for public inspection in the Commission's Public Document Room located
at 2120 L Street, NW., Washington, DC 20555.
A copy of this Decision will be filed with the Secretary for the
Commission's review in accordance with 10 C.F.R. Sec. 2.206. As
provided by this regulation, the Decision will constitute the final
action of the Commission 25 days after the date of issuance of the
Decision unless the Commission on its own motion institutes a review of
the Decision within that time.
Dated at Rockville, Maryland, this 14th day of December, 1994.
For the Nuclear Regulatory Commission.
Robert M. Bernero,
Director, Office of Nuclear Material Safety and Safeguards.
Appendix A to this document--Director's Decision Under 10 CFR 2.206
I. Introduction
The Honorable Michael O. Leavitt, Governor of the State of Utah,
and the Utah Legislature (Petitioners) submitted a letter dated May 2,
1994, and a copy of Utah Senate Concurrent Resolution No. 11,
``RESOLUTION REGARDING NRC ACTION REGARDING DISPOSAL OF URANIUM BY-
PRODUCT 1994 GENERAL SESSION'' (Petition) pursuant to 10 CFR
Sec. 2.206, in regard to Amendment No. 33 to Umetco Minerals
Corporation (Umetco) Source Material License No. SUA-1348, which
authorized disposal of up to 10,000 cubic yards (cy) of 11e.(2)
byproduct material per in situ leach (ISL) facility per year at the
White Mesa Uranium Mill facility. Petitioners request that the ``* * *
NRC reconsider the license amendment issued to Umetco and modify the
amendment to reflect the original request of 5,000 cubic yards [cy]
[per in situ facility].'' Petitioners assert as the basis for this
request that the NRC in effect created the equivalent of a commercial
waste disposal facility for in situ mining waste unlicensed by Utah,
while ignoring Utah's waste policy and laws. Petitioners also urge the
NRC to confer with the State of Utah and provide opportunity for
comment prior to the issuance of license amendments involving uranium
mill tailings disposal in Utah. Finally, Petitioners request that the
NRC obtain the concurrence of the Utah Governor and Legislature before
issuing license amendments involving disposal of uranium mill tailings
in Utah. By letter dated May 13, 1994, the State of Utah was notified
that the Petition was under review and that a response would be
provided in a timely manner.
The Petition has been reviewed on its merits, and as a result of
this review, for the reasons stated below, Petitioners' request to
modify Source Material License No. SUA-1358 is granted. Petitioners'
request that the NRC confer with Petitioners before taking action on
future license amendments involving disposal of uranium mill tailings
in Utah is granted, insofar as the NRC shall provide notice of
significant materials licensing actions in the State of Utah, such as
for authorization to dispose of in situ leach facility 11e.(2)
byproduct material or for approval of significant changes to an
approved reclamation plan, and thereby provide an opportunity to
comment. Petitioners' request that the NRC obtain the concurrence of
the State of Utah before issuing license amendments involving mill
tailing disposal in the State of Utah is denied.
II. Background
On February 6, 1978, Energy Fuels Nuclear, Inc. (EFN) submitted an
application for a source material license for the proposed White Mesa
Mill. The NRC issued an Environmental Impact Statement (EIS) for White
Mesa Mill in May 1979. In August of 1979, NRC issued Source Material
License SUA-1358 to EFN. The White Mesa Mill operated on a continuous
basis from August 1979 through February 1983 when operations were
suspended. In January of 1984 Umetco purchased a controlling interest
in the White Mesa Mill from EFN. The license was amended on December 5,
1984, to reflect the change in ownership and Umetco's status as the
licensee. Production resumed in October 1985 and the White Mesa Mill
has alternately operated and been on standby mode until the present
time. EFN recently repurchased the controlling interest in the White
Mesa Mill, and on May 25, 1994, the NRC staff issued License Amendment
No. 35, authorizing the transfer of ownership to EFN, the current
licensee.
By letter dated May 20, 1993, Umetco submitted an application for a
license amendment to authorize the receipt and disposal of 11e.(2)
byproduct material from NRC-licensed and Agreement State-licensed in
situ leach facilities. Byproduct material, under Section 11e.(2) of the
Atomic Energy Act of 1954, as amended, is defined 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.'' Specifically, Umetco requested that Source Material License
No. SUA-1358 be amended to authorize:
disposal of not more than 5,000 cubic yards of 11e.(2) byproduct
material per generating [in situ] licensee. If Umetco received a
request to dispose of more than 5,000 cubic yards of 11e.(2)
byproduct material, Umetco would notify URFO [NRC's Uranium Recovery
Field Office\1\] in writing so that the appropriate review and
approval could be received from the URFO staff prior to executing a
contract [contract].
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\1\The Uranium Recovery Field Office closed on August 3, 1994
and the responsibility for uranium recovery licensing was
transferred to the NRC's Office of Nuclear Material Safety and
Safeguards, Division of Waste Management.
The NRC staff reviewed Umetco's license amendment application and
issued License Amendment 33 on August 2, 1993.\2\ License Amendment 33
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authorized, through License Condition 55, the disposal of:
\2\Envirocare of Utah, Inc. requested a hearing on License
Amendment 33 which was denied on the grounds of timeliness. Umetco
Minerals Corporation, Memorandum and Order, ASLBP No. 94-688-01-MLA-
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2 (March 4, 1994)
byproduct material generated at licensed in situ leach facilities,
subject to the following condition that:
A. Disposal of [11e.(2) byproduct material] in excess of 10,000
cubic yards per year from single sources shall require specific
approval from NRC.
The NRC staff concluded that License Condition 55 would not result
in significant impacts to the environment or to public health and
safety. Further, the staff concluded that License Condition 55 was
consistent with 10 CFR Part 40, Appendix A, Section I, Criterion 2,
which is intended to avoid the proliferation of small waste disposal
sites, which would result if disposal in large tailings systems were
not authorized.
III. Discussion
A. License Condition 55
Petitioners contend that License Condition 55, which allows Umetco
to dispose of up to 10,000 cy of in situ leach 11e.(2) byproduct
material per year at the White Mesa facility annually from any source,
in effect creates the equivalent of a commercial disposal facility for
in situ leach 11e.(2) byproduct material in Utah. Petitioners,
therefore, requested that License Condition 55 be modified ``*** to
reflect the original request of 5,000 cubic yards [per in situ
facility].''
The NRC Staff agrees with the Petitioners that the Licensee's
authorization to dispose of 11e.(2) byproduct material should be
limited to the 5,000 cy per in situ leach facility requested by the
Licensee. By way of background, however, it should be noted that
License Amendment No. 33 authorized disposal of 11e.(2) byproduct
material consistent with NRC regulations, which require that 11e.(2)
byproduct material from in situ leach mines be disposed of at uranium
mill tailings facilities. 10 C.F.R. Part 40, Appendix A, Section I,
Criterion 2. Also, the byproduct material authorized for disposal at
the White Mesa Mill represents only a subset of radioactive waste
materials. Specifically, White Mesa Mill is authorized to dispose of
only 11e.(2) byproduct material (mill tailings), and 11e.(2) byproduct
material only from in situ leach facilities. Before EFN could dispose
of 11e.(2) byproduct material other than that from its own operations
or from in situ leach facilities, EFN would be required to seek
licensing authority to do so. In addition, the 10,000 cubic yards per
in situ leach facility per year authorized for disposal by License
Amendment 33 at White Mesa Mill was insubstantial in comparison to the
2000 tons [1481 cy] per day for 15 years contemplated in the original
licensing of White Mesa Mill. ``Final Environmental Statement Related
to Operation of White Mesa Uranium Project'' (May 1979) NUREG 0556, p.
iii.
Although License Amendment No. 33 would not have resulted in the
disposal of byproduct waste material in amounts approaching that
contemplated at the time of the original license grant for the White
Mesa Mill facility, License Condition 55 did authorize disposal of more
11e.(2) byproduct material than was requested by the Licensee. The NRC
practice is, generally, to grant only the disposal authority requested
by the license amendment application, and no more. During an October
20, 1994 discussion with the NRC staff, the Licensee agreed to issuance
of an order to modify the License to reflect the application for
authority to dispose of 5,000 cy of 11e.(2) byproduct material per in
situ facility. Accordingly, for the reasons stated above, the License
will be so modified by a ``Confirmatory Order Modifying License
Condition 55'' to be issued concurrently with this Decision.
B. Requests to Confer with and to Obtain Concurrence of Petitioners
Petitioners request that the NRC confer with the State of Utah and
provide opportunity to comment prior to the issuance of license
amendments involving uranium mill tailing disposal in Utah. The same
request was made previously by Mr. William J. Sinclair, Director of the
Division Radiation Control, Utah Department of Environmental Quality,
in his January 27, 1994, letter. In a February 25, 1994, response to
Mr. Sinclair, the Director, Office of Nuclear Material Safety and
Safeguards, made several commitments designed to foster better
communication with the State of Utah concerning NRC regulation of
uranium tail processing mills in Utah. Specifically, the NRC committed
to notify the State directly, in addition to the issuance of a Federal
Register Notice (FRN), upon the receipt of, and also upon the final
resolution of license amendment applications for significant materials
licensing actions in the State of Utah, such as for authorization to
dispose of in situ leach facility 11e.(2) byproduct material or for
approval of significant changes to an approved reclamation plan.\3\ An
FRN issued upon receipt of a significant license amendment application
serves notice, under 10 CFR Sec. 2.1205(c)(1), that interested parties
have 30 days to file a petition for hearing, and thus provides
interested parties, such as the State of Utah, an opportunity to
comment upon the license amendment application. The FRN issued at the
final resolution of the license amendment is informational. In
addition, where the license amendment application raises significant or
controversial issues, NRC would be willing to attend public meetings,
as appropriate. Accordingly, Petitioners' request for an opportunity to
confer with the NRC and to comment before issuance of license
amendments involving uranium mill tailing disposal in Utah is granted,
to the extent indicated above.
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\3\Although the NRC is not legally required to provide such
notice, City of West Chicago v. NRC, 701 F.2d 632 (7th Cir. 1983),
such notice would enhance communication with the State of Utah and
material licensing decisions.
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As explained above, the NRC will make every effort to obtain the
views and comments of the State of Utah before taking action upon
license applications for authority to dispose of uranium mill tailings
in Utah. Although the NRC welcomes and will closely consider the State
of Utah's comments, it would be inconsistent with the Sections 63, 81
and 84 of the Atomic Energy Act of 1954, as amended, to grant
Petitioners' request that the NRC obtain the concurrence of the
Governor and the Legislature of the State of Utah before issuing
license amendments authorizing disposal of uranium mill tailings in
Utah.\4\ Accordingly, this request is denied.
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\4\Petitioners, nonetheless, may acquire authority to regulate
Section 11e.(2) byproduct material, and thus to regulate the
disposal of uranium mill tailings in Utah, through the agreement
process pursuant to Section 274 of the Atomic Energy Act, as
amended.
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IV. Conclusion
For the reasons discussed above, Petitioners' request to modify
Source Material License No. SUA-1358 is granted, and will be effected
by a ``Confirmatory Order Modifying License 55'' to be issued
concurrently with this Decision. Petitioners' request that the NRC
confer with the State of Utah before issuing license amendments
involving mill tailing disposal in Utah is granted to the extent that
both direct and Federal Register notice of all applications for
significant materials licensing actions in Utah will be given to the
State of Utah, thus providing the State of Utah with an opportunity to
comment. Petitioners' request that the NRC obtain the State of Utah's
concurrence before issuing license amendments concerning uranium mill
tailing disposal in Utah is denied for the reasons discussed above.
A copy of this Decision will be filed with the Secretary for the
Commission to review as provided in 10 CFR Sec. 2.206(c). The Decision
will become the final action of the Commission 25 days after issuance
unless the Commission on its own motion, institutes review of the
Decision in that time.
Dated at Rockville, Maryland, this 14th day of December 1994.
For the Nuclear Regulatory Commission.
Robert M. Bernero,
Director, Office of Nuclear Material Safety and Safeguards.
[FR Doc. 94-31568 Filed 12-22-94; 8:45 am]
BILLING CODE 7590-01-P