October 10, 2001

Warren E. Jacobi, Manager

Radiation Services Program

Laboratory and Radiation Services Division

Colorado Department of Public Health & Environment

8100 Lowry Blvd.

Denver, CO 80230-6928

Dear Mr. Jacobi: 

In your letter of August 31, 2001, you requested clarification of our comment that Colorado

must change the wording in Part 18 from ìradioactive materialî to ìbyproduct material type 2." 

The Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA), Title II, established the

legal frame work for the generation and disposal of 11e.(2) byproduct material (and added the

definition of this material at Section 11e.(2) of the Atomic Energy Act (AEA)). Title II also

amended Section 274 of the AEA by adding Section 274o which specifies the requirements for

States that wish to take on regulatory authority over 11e.(2) byproduct material. Title II

specifies that the Department of Energy (DOE) must take title to the 11e.(2) disposal site for

long-term care, if the State chooses not to take title, after all applicable standards have been

met and the State license terminated. DOEís authority applies to 11e.(2) byproduct material

only and does not apply to other similar materials that do not meet the AEA definition of 11e.(2)

byproduct material. (DOE has other general authority under which it may take title to other

materials.) The UMTRCA/AEA definition for 11e.(2) byproduct material is based on the process

by which material is generated, not its radiological or chemical properties. 

This constraint on DOEís authority to take title to these disposal sites when disposal includes 

other non-11e.(2) byproduct material is technically sound. To address this, the Nuclear

Regulatory Commission, in conjunction with DOE, has developed guidance that, if followed,

facilitates the disposal of such material in an 11e.(2) disposal facility which includes prior

approval of DOE, the long-term custodian. [See Regulatory Issue Summary 2000-23 dated

November 30, 2000 (RIS-00-23)]

In summary, the AEA, as amended by UMTRCA, requires that 11e.(2) byproduct material be

managed and disposed of in a unique manner with DOE as the ultimate long-term custodian

(except when the State chooses to take on this role). The mixture of other material in the

disposal site without prior approval of DOE would jeopardize the title transfer of the disposal

site and ultimate long-term care. The use of the words ìradioactive materialî instead of

ìbyproduct material type 2î would allow the disposal of non-11e.(2) material in the disposal cell

without prior DOE approval and would jeopardize the ultimate site transfer to DOE. Based on

this concern, the Part 18 wording must be changed.

If you have any questions, please contact me at 301-415-2326 or Dennis Sollenberger at

301-415-2819. 

Sincerely,

/RA By Richard L. Blanton Acting for/

Frederick C. Combs, Deputy Director

Office of State and Tribal Programs
Warren E. Jacobi October 10, 2001

Distribution:

DIR RF (1-179) DCD (SP08) Response to: ML01250063

SDroggitis PDR (YES)

DOCUMENT NAME: C:\Program Files\Adobe\Acrobat 4.0\PDF Output\COpart18issue.wpd

To receive a copy of this document, indicate in the box: "C" = Copy without attachment/enclosure "E" = Copy with attachment/enclosure "N" =

No copy

OFFICE STP OGC STP:DD

NAME DMSollenberger:gd STreby

(By NJensen)

FCombs

(By RLBlanton)

DATE 09/14/01 10/02/01 09/14/01

10/10/01

STP-AG-5