ML092090353 

UNITED STATES 

NUCLEAR REGULATORY COMMISSION 

OFFICE OF FEDERAL AND STATE MATERIALS 

AND ENVIRONMENTAL MANAGEMENT PROGRAMS 

WASHINGTON, D.C. 20555 

September 23, 2009 

NRC REGULATORY ISSUE SUMMARY 2009-12 

URANIUM RECOVERY POLICY REGARDING SITE PREPARATION 

ACTIVITIES AT PROPOSED, UNLICENSED URANIUM RECOVERY 

FACILITIES 

ADDRESSEES 

All holders of operating licenses for uranium recovery facilities and all companies that have 

submitted applications to construct all types of new uranium recovery facilities (conventional 

mills, heap leach facilities, 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 the permissible site preparation activities at 

proposed, unlicensed, uranium recovery facilities. This RIS responds to industry inquiries 

regarding the activities that applicants may undertake prior to receiving a license. No specific 

action nor written response is required. 

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 certain activities that would be permissible at the proposed 

facilities before a license is granted. In the interest of minimizing the lead time from receipt of a 

license to the initiation of uranium recovery operations, the industry has requested information 

on permissible site preparation activities, including the potential use of limited work 

authorizations (LWAs), similar to those provided in the reactor program. 

SUMMARY OF ISSUE

The NRC’s regulations in Title 10 of the Code of Federal Regulations (CFR), Part 40.32(e), 

state that “commencement of construction” of a uranium recovery facility prior to a conclusion by 

the NRC staff that a license should be issued is grounds for denial of the license application. 

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 

“commencement of construction” does not relate to the suitability of the site or the protection of 

environmental values.” Id. Also the term does not mean “site exploration, roads necessary for 
RIS 2009-12 

Page 2 of 6 

site exploration, borings to determine foundation conditions, or other preconstruction monitoring 

or testing to establish background information activities, which do not constitute the 

commencement of construction, may thus be conducted before a license is granted. 

Commission Staff Requirements Memorandum (SRM)-M081211 directed the staff to budget 

resources to develop a proposed rulemaking that will change the definition of construction to 

one that is comparable to the current Part 51 definition. Changing this definition would expand 

the types of permissible site preparation activities. 

ISR Industry representatives, through their legal counsel, presented their opinions to staff 

regarding the applicability of Part 40.32(e) to ISR facilities during a meeting on November 18, 

2008. Industry’s position, as documented in a White Paper presented at the meeting, is that 

Part 40.32(e) is not applicable to ISR facilities, based on the rulemaking history of this regulation 

as reflected in the 1980 Federal Register (FR) notice publishing the final rule. In the 

November 18, 2008, White Paper, “Recommendations on Pre-Licensing Site Construction 

Requirements for In Situ Recovery Facilities Pursuant to 10 CFR § 40.32(e),” the ISR industry 

argues as follows: 

This 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 

(45 FR at 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 Part 40.32(e) imposed a requirement on the Director 

of NRC’s then-named Office of Nuclear Material Safety and Safeguards (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” 

(45 FR at 65521). 

Id. at 7. 

Industry further stated: 

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 of 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. (45 FR at 65521). 
RIS 2009-12 

Page 3 of 6 

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.” 

Id. 

In addition, to support its claim that 10 CFR § 40.32(e) applies only to conventional mills, the 

industry White Paper quotes the 1980 FR publication of the NRC’s final rule on Uranium Mill 

Licensing Requirements: 

Given that each mill tailings pile constitutes a low-level waste burial site 

containing long lived radioactive materials, the Commission believes that 

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 (45 FR 65521). 

Id. at 8. 

According to industry, ISR applicants, therefore, should be allowed to build most of the facilities 

in three tiers. Tier 1 includes activities over which the 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. 
RIS 2009-12 

Page 4 of 6 

NRC staff does not agree with industry’s interpretation of 10 CFR Part 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 

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. Consequently, the staff 

concludes that the requirements of Part 40.32(e) apply to both conventional mills and ISR 

facilities. 

The NRC’s regulations in 10 CFR Part 50 (Domestic Licensing of Production and Utilization 

Facilities) include an LWA process that allows the performance of certain site preparation 

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 site preparation 

activities apart from those permitted under 10 CFR Part 40.32(e), an exemption request must be 

submitted for the staff’s review under the provisions of 10 CFR Part 40.14. 

EXEMPTION REQUEST COMPONENTS

The following components should be part of any exemption request: 

1. A complete description of the particular activities for which an exemption is requested. 

Such activities should fall within the scope of what “construction” does not include, as set 

forth in the 10 CFR 51.4 definition. 

2. The purpose and need for the activity. Applicants should state how this exemption will 

benefit the applicant and describe the impacts of the exemption not being granted. 

3. Duration of the activity. 

4. Potential impacts to human health and the environment. The exemption request should 

 clearly identify impacts associated with site preparation versus those associated with 

 licensed activities. 

5. Drawings that provide construction details and the location of the proposed activity(ies). 

ACTIVITIES FOR WHICH STAFF DOES NOT EXPECT TO APPROVE EXEMPTION 

REQUESTS

1. Production/Injection well installation. 

2. Wellfield monitoring network installation. 

3. Pipeline installation. 

4. Header house installation. 
RIS 2009-12 

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5. Evaporation/surge/treatment pond installation. 

6. Central processing plant construction, other than grading and excavation allowed 

 per §51.4. 

7. Satellite plant construction, other than grading and excavation allowed per §51.4. 

8. Construction of chemical storage areas or tanks. 

9. Disposal well drilling and installation. 

As the above list of activities indicates, actions identified in an exemption request that are 

proposed to be taken before a license is issued will not be authorized if such actions have a 

nexus to safety. This is consistent with the underlying philosophy the Commission used when 

considering the LWA rule for reactors. While the reactor LWA rule does not apply to ISR 

facilities, the underlying premise of those regulations is useful in determining when an 

exemption may be appropriate. For example, the installation of a set of injection wells in a 

proposed wellfield is deemed to have a sufficiently close connection to later being able to 

adequately control byproduct material that a site preparation exemption for taking such an 

action will not be granted. Also, an environmental assessment will be performed for all 

exemption requests pursuant to 10 CFR 51.21 and 10 CFR 51.33. 

Exemption requests will be reviewed on a case-by-case basis and the granting of any 

exemption does not ensure subsequent approval of a license application. As such, any site 

preparation activities performed by the applicant under an exemption and prior to the issuance 

of a license are performed at the applicant’s risk. In this regard, it should be noted that the 

applicants must comply with other Federal, State, and Local regulations during the conduct of 

site preparation activities that may be applicable to the NRC-exempted activities. 

FEDERAL REGISTER NOTIFICATION 

A notice of opportunity for public comment on this RIS was published in the Federal Register

(74 FR 13483) on March 27, 2009, for a 30 day comment period. The comment period was 

subsequently extended for an additional two weeks. Comments were received from the 

uranium recovery industry, Federal and State government representatives, interested 

stakeholder organizations, and public citizens. The staff considered all comments that were 

received. The staff’s evaluation of the comments is publicly available through NRC’s 

Agencywide Documents Access and Management System, under Accession No. 

ML092100004. 

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. 
RIS 2009-12 

Page 6 of 6 

PAPERWORK REDUCTION ACT STATEMENT 

This RIS does not contain any information collections and, therefore, is not subject to the 

requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.). 

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. 

 /RA/ by K. McConnell Acting for Larry 

 Larry W. Camper, Director 

 Division of Waste Management 

 and Environmental Protection 

 Office of Federal and State Materials 

 and Environmental Management Programs 

Technical Contact: Stephen J. Cohen 

 (301) 415- 7182 

 E-mail: stephen.cohen@nrc.gov

Enclosure: List of Recently Issued FSME 

 Generic Communications 
RIS 2009-12 

Page 6 of 6 

PAPERWORK REDUCTION ACT STATEMENT 

This RIS does not contain any information collections and, therefore, is not subject to the 

requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.). 

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. 

 /RA/ by K. McConnell Acting for Larry 

 Larry W. Camper, Director 

 Division of Waste Management 

 and Environmental Protection 

 Office of Federal and State Materials 

 and Environmental Management Programs 

Contact: Stephen J. Cohen 

 (301) 415- 7182 

 E-mail: stephen.cohen@nrc.gov

Enclosure: List of Recently Issued FSME 

 Generic Communications 

ML092100140 

Office DWMEP FSME DWMEP DWMEP OGC OGC 

Name SCohen AMcIntosh BGarrett BvonTill TRothschild 

via email 

TStokes via 

email 

Date 07/29/09 07/31/09 08/04/09 08/04/09 07/15/09 07/24/09 

Office DWMEP OIS OE DWMEP DWMEP 

Name McConnell TDonnell NHilton LCamper McConnell 

for Larry 

Date 08/17/09 08/06/09 08/13/09 09/18/09 09/23/09 

OFFICIAL RECORD COPY