NRC says ablation requires milling license

UNITED STATES
NUCLEAR REGULATORY COMMISSION
WASHINGTON, D.C. 20555-0001

October 19, 2016

Ms. Jennifer T. Opila, MPA, Manager
Radiation Control Program
Colorado Department of Public Health
and Environment
4300 Cherry Creek Drive South
Denver, CO 80246-1530

Dear Ms. Opila:

This is a response to your letter dated June 20, 2016 in which you requested the U.S. Nuclear
Regulatory Commission (NRC) staff provide an opinion about whether: 1) the waste produced
from the ablation process is considered byproduct material if the waste does not contain
hazardous materials or radioactive materials at concentrations above background; and 2) the
Colorado Department of Public Health and the Environment (CDPHE) can enact new
regulations for uranium ablation technology and remain compatible with the NRC’s regulatory
program. In developing the NRC response to your questions, the NRC staff reviewed the latest
information provided by Black Range Minerals to CDPHE staff and other information related to
uranium ablation previously provided to NRC staff. Our responses to the questions you raised
are provided in the enclosure.

The NRC staff is interested in the outcome of the Colorado public hearing process related to
ablation technology. As CDPHE continues its evaluation process, the NRC staff is available to
assist the CDHPE by addressing technical, regulatory, or policy questions and resolving any
regulatory issues should they arise as a result of your evaluation process.

If you have any additional questions feel free to contact me or Stephen Poy.

Sincerely,
/RA/
Paul Michalak, Chief
Agreement State Programs Branch
Division of Material Safety, State, Tribal
and Rulemaking Programs
Office of Nuclear Material Safety​

and Safeguards

ENCLOSURE

STATEMENT OF POINTS & NRC RESPONSES

1. Fundamental to the regulatory framework for uranium mills is the production of
byproduct material which is defined in part as “the tailings or wastes produced by the
extraction or concentration of uranium or thorium from ore processed primarily for its source
material content…” Byproduct material from a conventional uranium mill contains both
hazardous and concentrated radioactive material. Would the NRC consider waste, produced
from a process that concentrates uranium, byproduct material if the waste does not contain
hazardous materials or radioactive materials at concentrations above background?

Response: Since uranium ablation technology involves the extraction or concentration
of uranium or thorium from any ore processed primarily for its source material content,
then any wastes produced by the process would meet the criteria to be classified as
byproduct material as defined in Section 11e.(2) of the Atomic Energy Act, as amended
and 10 CFR 40.4. Byproduct material is defined in 10 CFR 40.4 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. Note that with respect to
radioactive materials and NRC regulations, the radioactive or hazardous constituents
contained in tailings or waste resulting from extraction or concentration of uranium does
not matter. That is, the term byproduct material is defined by an action, not the
characteristics of the waste. The criteria for disposal of tailings or wastes resulting from
the extraction or concentration of source material from ores processed primarily for their
source material content are contained in Appendix A to 10 CFR Part 40. These
regulations contain a provision allowing licensees to propose alternatives to the specific
requirements in Appendix A, Any alternative must achieve a level of stabilization and
containment of the sites concerned, and a level of protection for public health, safety,
and the environment from radiological and nonradiological hazards associated with the
sites, which is equivalent to, to the extent practicable, or more stringent than the level
which would be achieved by the requirements of this Appendix and the standards
promulgated by the Environmental Protection Agency in 40 CFR Part 192, Subparts D
and E.

2. It is our understanding that no current NRC regulation explicitly addresses the regulation
of uranium ablation. We further understand that NRC has not made any other decision
regarding how uranium ablation activities should be regulated. Nor do any of the Suggested
State Regulations for Control of Radiation specifically address uranium ablation. And, to the
best of our understanding, commercial-scale uranium ablation activities are being proposed
solely in the State of Colorado at this time. Given this, we believe that any new regulations
proposed in Colorado specifically to address uranium ablation are likely to fall within the NRC’s
Category D (Program Elements Not Required for Compatibility). Under Category D, the State of
Colorado would have the flexibility to adopt and implement program elements based on those of
the Commission or other program elements within the State's jurisdiction that are not addressed
by NRC. Please let us know if NRC disagrees and if the NRC believes that the State of
Colorado cannot enact new regulations for ablation technology and remain compatible with the​

NRC’s program.

Response: Based on our review of the latest information provided by Black Range
Minerals to CDPHE staff and other information related to uranium ablation previously
provided to NRC staff, the NRC staff finds the uranium ablation process at a minimum
requires a source material license, and should be considered uranium milling and
regulated under Colorado’s equivalent regulations to 10 CFR Part 40, and 10 CFR Part
40 Appendix A. The NRC staff considers 10 CFR Part 40 and Appendix A to be the
appropriate regulatory framework for the use of the ablation process on uranium ore. A
review of the compatibility category for most of these requirements are compatibility
category C or H&S and not compatibility category D.

In determining that the uranium ablation process should be considered uranium milling,
NRC staff notes that the ablation process involves the extraction or concentration of
uranium or thorium from an ore processed primarily for its source material content.
Black Range Minerals has indicated that the waste from their process does not contain
hazardous and concentrated radioactive material. A review of the materials provided by
Black Range Minerals, including those submitted to reply to CDPHE’s Request for
Information dated April 4, 2016 (specifically, Attachment 2.4), indicates otherwise. The
documents provided by Black Range Minerals can be found in the NRC Agencywide
Documents Access and Management System using the Accession Number
ML16271A287. If Black Range Minerals further develops this technology to the point
where data shows that the process does not produce waste containing hazardous and
concentrated radioactive material, the CDPHE could consider whether to grant an
exemption request pursuant to Colorado’s equivalent to 10 CFR 40.14 “Specific
Exemptions” or approve the licensee’s proposal consistent with the provisions in
Appendix A, as discussed in response to question one.

While the NRC staff considers 10 CFR Part 40 and Appendix A to be the appropriate
regulatory framework for ablation processing of uranium ore, the State of Colorado can
choose to enact new regulations for ablation technology. If the State of Colorado
chooses to enact new regulations for ablation technology, these regulations would be​

subject to a compatibility or health and safety review by the NRC.

https://www.colorado.gov/pacific/sites/default/files/HM_rad-ablation-CO-response-letter-10-19-16.pdf