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# Technical Assistance Request, Heritage Minerals, Inc., Possession and Transfer of Monazite-Rich Product

## HPPOS-301 PDR-9306220344

See the memorandum from R. L. Fonner to J. D. Kinneman dated November 30, 1990, and the memorandum from J. E. Glenn to R. R. Bellamy dated April 29, 1992. 

The memos response to a TAR from Region I regarding the Heritage Minerals, Inc. ("Heritage"), request which proposed onsite disposal of monazite-rich sands by returning this monazite material to the host material from which it was derived. The disposal of the monazite sands involves complicated issues because the radiation hazard is caused mostly by naturally occurring radioactive materials (NORM) not covered by the Atomic Energy Act (AEA).

Heritage discontinued operations in July 1990, and they have decontaminated their building and equipment in accordance with their license (enclosures). They estimate, however, that 695 cubic yards of monazite sand remain on the site. The monazite-rich sand contains about 2,000 picocuries of thorium-232 per gram based on analysis for actinium-228 and a dry density for the monazite-rich sand of approximately 2.7 grams per cubic centimeter. This sand resulted from separation of the monazite- rich sands from previously processed subsurface deposits. The licensee has been unable to sell the monazite-rich sand and proposes onsite disposal by mixing it with an estimated 102,500 cubic yards of processed sand located in the salvage storage, recycled tailings, and original new feed areas (also known as the blue and gray areas, after the coloring of maps submitted by the licensee). The licensee intends to also submit a proposal to the State of New Jersey Department of Environmental Protection (NJDEP) to place a deed restriction on the property, cover the sand with a layer of soil, and use the area as a golf course. This approach will dispose of both the NRC licensed sand and the other sand of much lower concentration about which NJDEP is concerned.

Senior personnel of OGC have met to considered the question of NRC regulation of source material under NRC rules and AEA as applied to the areas referred to in License Condition 15 as the "original new feed area", "recycled tailings area", and "salvage storage area". The areas referred to as the gray and blue areas. The problem arises from the fact that the source material content of the materials in these areas is less that 0.05% source material by weight, and therefore represents a preexisting unimportant quantity under 10 CFR 40.13 (a) exempt from regulation. It should be noted that the AEA required the Commission to establish unimportant quantities (AEA Section 62). The first consensus reached was that regulation could not be based upon a characterization of the areas as having directly licensable material. That is, the contamination is an unimportant quantity (the contamination is clearly not byproduct material).

The second issue was whether the activities in the plant (in the red area) that resulted in separating out a monazite-rich product with source material in excess of .05% by weight provided a basis for jurisdiction over the blue and gray areas. The Commission has asserted jurisdiction over activities of licensees that were ancillary to the primary licensed activity. In the 1970s, the NRC staff relied upon the NEPA theory to condition uranium milling licenses for remediation of mill tailings disposal areas prior to the enactment of the Uranium Mill Tailings Radiation Control Act (UMTRCA) of 1978. All of these cases and practices, however, are marked by a feature that distinguishes them from Heritage Minerals. That is, the fact that the ancillary matters regulated under the National Environmental Policy Act (NEPA) theory would not occur or be present but for the primary licensed activity, i.e., the nuclear power plant or the uranium mill.

Initially, the separation of the monazite-rich product was ephemeral. It was considered a waste and put back into the waste stream. Indeed, during this period the process was not considered a licensable operation. The dry mill tailings were not stored (in the gray area) for reprocessing because of their source material value, but for other minerals such as ilmenite and rutile. Any source material in this feedstock was an unimportant quantity. The gray and blue areas would exist even if no monazite-rich materials were ever separated in the process; thus, the contamination is not the necessary consequence of a licensed (in the Heritage situation-licensable) activity, and which would not occur but for the licensed activity. The consensus is that the NEPA theory provides no basis to regulate the gray and blue areas. This result is consistent with the analogous licensing of side stream extraction of uranium at mineral processing facilities in the western states. The NRC has licensed the side stream extraction of uranium from the effluent of processing of nonsource material ores. In so doing, it has not attempted to regulated the process before the uranium extraction step, nor after, particularly with respect to waste streams.

Although OGC is mindful of the staff's concern about the radiation levels in the blue and gray areas, the OGC conclusion is that it is doubtful that NRC should undertake to regulate in the blue and gray areas. Accordingly, we suggest that License Condition 15 be revised. We see two options, although more may exist. First, remove reference to the areas of questionable regulation altogether, which would leave the question of regulation totally in the State of New Jersey. This option would recognize that the radiation hazard is caused mostly by naturally occurring radioactive material not covered by the AEA (actinium-228 and lead-212 predominate), presenting a legal situation identical to the radium in uranium mill tailings prior to the enactment of UMTRCA, but lacking the NEPA link as discussed above. Second, cover these areas in the license on a basis of acceptance by Heritage, as a voluntary commitment, to adhere to an NRC position (for example, to Option 3 in the Branch Technical Position, 46 FR 52061-52063). In any case the State of New Jersey authorities should be informed and included in any further discussions of this matter. Based upon the conclusions noted above, i.e., that the radiation hazard results predominantly from NORM, we would not consider regulation of the radiation hazards in the blue and gray areas to be preempted.

**Regulatory references:** Atomic Energy Act

**Subject codes:** 9.0, 12.9, 12.19

**Applicability:** Source Material

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