[Federal Register Volume 74, Number 58 (Friday, March 27, 2009)]
[Notices]
[Pages 13483-13485]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6844]
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NUCLEAR REGULATORY COMMISSION
[NRC-2009-0138]
Proposed Generic Communication; Pre-Licensing Construction
Activities at Proposed Uranium Recovery Facilities
AGENCY: Nuclear Regulatory Commission.
ACTION: Notice of opportunity for public comment.
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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
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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''
Addressees
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.
Intent
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.
Background
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
follows:
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
documented.''
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
structures;
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-
0021.
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
number.
Contact
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]
BILLING CODE 7590-01-P