NRC Regulations and Policy 10 C.F.R. 40.2a ("Coverage of inactive tailings sites") developed in 1980 shortly after the passage of UMTCRA states in relevant part:
(b) The Commission will regulate byproduct material as defined in this Part that is located at a site where milling operations are no longer active, if such site is not covered by the remedial action program of Title I of the Uranium Mill Tailings Radiation Control Act of 1978. The criteria in Appendix A of this part will be applied to such sites.
See attached. This section requires NRC to regulate byproduct material located at sites where milling operations are no longer active, with the only caveat being that the site must not be covered by Title I of UMTRCA. Importantly, the provision does not limit the NRC's authority to byproduct material produced at a NRC licensed facility after the effective date of UMTRCA. For example, any FUSRAP materials meeting the definition of byproduct material in section 11e.(2) of the AEA, that were not subject to the DOE's control at that time are subject to NRC jurisdiction and Appendix A regulations. Therefore, any FUSRAP materials meeting the definition in section 11e.(2) that leave DOE control for final disposal must be subject to NRC regulatory oversight.
In 1992, NRC concluded that FUSRAP materials that satisfy the definition of "byproduct material" in section 11e.(2) qualify as 11e.(2) byproduct material, regardless of when the materials were generated. Specifically, NRC stated:
Government contracts were issued for thorium source material used in the Manhattan Engineering District and early Atomic Energy Commission programs. Wastes resulting from that processing and disposal at these [FUSRAP] sites would qualify as 11e.(2) byproduct material.
57 Fed. Reg. at 20,527 (May 13, 1992) (emphasis added) (see attached).
More recently however, NRC has taken a position inconsistent with the 1992 Federal Register notice. Specifically, in a March 2, 1998 letter to Ann Wright of the U.S. Army Corps of Engineers (USACE), Robert L. Fonner, Special Counsel for Fuel Cycle and Safeguards Regulations, NRC (hereinafter "the Fonner letter"), stated that:
UMTRCA gave NRC statutory authority over tailings [from ore processed for source material content], but only over tailings from activities licensed by NRC as of the effective date of the Act (November 8, 1978), or thereafter. See Section 83 of the Atomic Energy Act of 1954 as amended. . . .
Because the residuals at the listed [FUSRAP] sites were generated long before NRC had any jurisdiction over tailings, and were never produced from source material extraction under NRC license, NRC today has no basis to assert any regulatory authority over the handling of those residuals at the listed sites. Fonner Letter at 1. In short, the Fonner Letter asserts that NRC lacks jurisdiction over pre-1978 byproduct material because the Commission does not have the authority to regulate as 11e.(2) byproduct material tailings or wastes that were generated prior to the enactment of UMTRCA, unless those tailings or wastes were generated pursuant to an NRC-issued license. The letter goes on to conclude that since pre-1978 byproduct material cannot be regulated by NRC as 11e.(2) byproduct material, NRC regulations would not preclude the disposal of such material in a facility that is not licensed under the AEA (for example, a RCRA hazardous waste disposal facility). Id. at 2.
The Fonner Letter is not only inconsistent with NRC stated policy in the 1992 Federal Register and section 40.2a, but also with the Staff's acceptance of DOE's designation of the materials as 11e.(2) byproduct material in various decisions to license the processing and/or disposal of FUSRAP materials. See U.S. Department of Energy, The Formerly Utilized Sites Remedial Action Program (FUSRAP): Building Stakeholder Partnerships to Achieve Effective Cleanup, DOE/EM-0233 (April 1995), and Affidavit of Joseph J. Holonich, Deputy Director , Division of Waste Management, Nuclear Materials Safety and Safeguards, in the Matter of International Uranium (USA) Corp., Docket No. 40-8681 MLA-4 (Jan. 29, 1999).
In sum, the Fonner letter's legally incorrect assertion that pre-1978 byproduct material is not 11e.(2) byproduct material subject to NRC's jurisdiction and its conclusion that such material can be disposed of in a facility that is not licensed under the AEA is inconsistent with NRC and DOE policy. The Fonner Letter correctly concludes however, that such material, when present at a FUSRAP site or other DOE-administered site, is not subject to regulation by NRC because the Department of Energy (DOE) is not required to be licensed by the NRC under the AEA to handle byproduct material.
The Plain Language of the AEA
"Byproduct material" is defined in section 11e.(2) of the AEA as follows:
the tailings and wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content. 42 U.S.C. 2014e.(2). A plain reading of this definition shows that Congress did not impose any temporal limitations on the materials that qualify as 11e.(2) byproduct material. Similarly, Congress did not limit 11e.(2) byproduct material to include only materials produced pursuant to an AEA license. For purposes of AEA section 11e.(2), "byproduct material" is defined in terms of only two characteristics: (i) the type of material at issue (i.e., tailings and wastes), and (ii) the process by which the material was created (i.e., by the extraction or concentration of uranium or thorium from ore processed primarily for its source material content). Importantly, Congress did not define 11e.(2) byproduct material in terms of when the material was produced or whether it was produced pursuant to an AEA license. In other words, notwithstanding the Fonner Letter's assertions, Congress did not define 11e.(2) byproduct material to mean tailings and wastes produced only after the date of enactment of UMTRCA or only after the effective date of UMTRCA. Congress also did not define 11e.(2) byproduct material to exclude material that was not produced pursuant to an NRC-issued license. As the plain language of the statute indicates, Congress understood that materials that meet the definition of 11e.(2) byproduct material generated prior to the effective date of UMTRCA outside the context of an NRC license are 11e.(2) byproduct material.
Further, section 81 of the AEA governs the NRC's licensing of "byproduct material." Section 81 provides that no person may own, possess, produce, transfer or receive 11e.(2) byproduct material without obtaining a license or other authorization from NRC. See 42 U.S.C. 2111. Notably, section 81 does not limit the license requirement to material created after the enactment of UMTRCA. Rather, section 81 applies to any material that meets the definition of byproduct material in section 11e.(2).
Finally, section 83 of the AEA upon which the Fonner letter relies does not support the proposition that NRC is without jurisdiction to regulate the FUSRAP material. The Fonner Letter provides:
UMTRCA gave NRC statutory authority over such [uranium mill] tailings, but only over tailings resulting from activities licensed by NRC as of the effective date of the Act (November 8, 1978) [sic] or thereafter. See, Section 83 of the Atomic Energy Act of 1954 as amended. Fonner Letter at 1 (emphasis added). Here, the Fonner Letter cites Section 83 to support the assertion that NRC has regulatory authority only over tailings from activities conducted pursuant to an NRC-issued license that was either in effect on the effective date of UMTRCA or that was issued after the effective date of UMTRCA. This conclusion is based on an misinterpretation of section 83. Section 83 in no way limits NRC's authority to license pre-1978 byproduct material. Instead, that section simply prescribes certain provisions that must be included in licenses issued as of the effective date of UMTRCA. Specifically, Section 83 requires:
Any license issued or renewed after the effective date of [UMTRCA] . . . of any activity which results in the production of any [11.e(2)] byproduct material . . . shall contain terms and conditions . . . to assure that, prior to termination of such license
(1) the licensee will comply with decontamination, decommissioning, and reclamation standards prescribed by the Commission . . . and
(2) ownership of any [11e.(2)] byproduct material . . . that resulted from such licensed activity shall be transferred to (A) the United States or (B) the State in which such activity occurred [at the state's option]. 42 U.S.C. 2113. In addition, Section 83 contains similar provisions regarding the inclusion in licenses of provisions requiring transfer of title to land used for the disposal of 11e.(2) byproduct material. In other words, AEA Section 83 requires that certain provisions pertaining to the transfer of ownership and custody over byproduct material and the land used for its disposal must be included in 11e.(2) licenses that are issued after the effective date of UMTRCA and in licenses that were already in existence as of the effective date of UMTRCA. Although Section 83 prescribes certain provisions that must be included in 11e.(2) licenses, that section does not speak to the broader question of NRC's authority to license activities involving 11e.(2) byproduct material. Section 83 does not, nor was it intended, to limit NRC's authority to license the handling of pre-1978 byproduct material. DOE's Designation of Materials as 11e.(2) Byproduct Material
Further, as discussed above, the DOE has designated certain FUSRAP wastes as 11e.(2) byproduct material. Under the Atomic Energy Act (AEA), the DOE is self-regulating with respect to AEA materials. Pursuant to that authority, DOE determined that certain material at FUSRAP sites constitutes 11e.(2) byproduct material. Because DOE has designated certain material 11e.(2) byproduct material, that material must be sent to an AEA licensed facility when it leaves DOE control. Moreover, DOE's determination that certain FUSRAP material is 11e.(2) byproduct material should be entitled to deference since UMTRCA specifically grants to DOE the authority to determine whether materials qualify as "residual radioactive materials" subject to regulation under Title I, and the term "residual radioactive materials" encompasses materials that meet the definition of 11e.(2) byproduct material. With regard to FUSRAP material specifically, DOE is very familiar with the history and characteristics of the material and based its determination on this information. Moreover, deference to DOE's determination would be consistent with the past practices of the NRC Staff in its licensing decisions, where the Staff has, in fact, accepted DOE's designation of certain FUSRAP material as 11e.(2) byproduct material. Consequences of Inconsistent Policies and Fonner Letter Assertions
Due to inconsistent policy positions, the USACE, relying on the Fonner letter, contracted for the disposal of FUSRAP materials meeting the definition of 11e.(2) byproduct material in a non-11e.(2), non-AEA licensed RCRA site in Buttonwillow, California. The USACE also contracted for the disposal of FUSRAP material meeting the definition of 11e.(2) byproduct material in a NRC licensed 11e.(2) disposal facility owned and operated by Envirocare of Utah, Inc. Since the FUSRAP materials either meet the definition of 11e.(2) byproduct material or not, either the Buttonwillow facility or the Envirocare facility is creating commingled waste and is disposing of the material unlawfully.
Finally, and perhaps most importantly, from a public health and safety perspective, these FUSRAP materials are radiologically, chemically and physically similar to those generated pursuant to AEC contracts at what are now Title I and Title II sites. It is nonsensical to treat the FUSRAP materials differently from the materials at the Title I and Title II sites.