1

Non-Agreement States in this context refers to a State which does not have authority to

regulate 11e(2) material through a specific agreement with NRC. It is possible to be an NRC

Agreement State through agreements to regulate other materials areas and not have authority

over 11e(2) material. Where such agreements exist, those states would be considered nonAgreement States for the purpose of this COMJSM.

COMJSM-06-0001

January 17, 2006

MEMORANDUM TO: Chairman Diaz

Commissioner McGaffigan

Commissioner Jaczko

Commissioner Lyons

FROM: Jeffrey S. Merrifield /RA/

SUBJECT: REGULATION OF GROUNDWATER PROTECTION AT IN SITU 

LEACH URANIUM EXTRACTION FACILITIES

Concerns regarding the dual regulation of groundwater protection programs at in situ leach

(ISL) uranium recovery facilities have been debated at the Commission level since the late

1990's. The Commission’s last significant direction to the staff on this issue was in response to

SECY-03-0186, “Options and Recommendations for NRC Deferring Active Regulation of

Ground-water Protection at In Situ Leach Uranium Extraction Facilities.” In a Staff

Requirements Memorandum dated November 19, 2003, the Commission directed the staff to

pursue memoranda of understanding (MOU) that would allow the NRC to defer regulation of

groundwater protection at ISLs to non-Agreement States1

 with appropriate groundwater

protection programs as authorized by the U.S. Environmental Protection Agency (EPA). A

recent series of memos from the staff indicate that such MOUs may be more difficult to achieve

than originally anticipated.

It is my belief that the manner in which the NRC currently regulates this group of licensees is

both complex and unmanageable. While the staff has done its best to regulate ISL licensees

through the generally applicable requirements in Part 40 and imposition of license conditions,

our failure to promulgate specific regulations for ISLs has resulted in an inconsistent and

ineffective regulatory program. We have been attempting to force a square peg into a round

hole for years, and I believe we should finally remedy this situation through notice and comment

rulemaking. In developing a proposed rule, the staff should formulate a regulatory framework

that is tailored specifically to this unique group of licensees. The staff should especially focus

on eliminating dual regulation by the NRC and EPA of groundwater protection that is currently

taking place. To achieve this, the NRC should retain its jurisdiction over the wellfield and

groundwater under its Atomic Energy Act authority, but should defer active regulation of

groundwater programs to the EPA or the EPA-authorized state through EPA’s undergroundinjection-control permit program. During this rulemaking effort, the staff should actively engage

interested stakeholders through public workshops and should request that EPA and EPA-
2

authorized states work closely with the staff to ensure an acceptable outcome for all affected

parties.

With this in mind, the staff should meet with licensees and other interested stakeholders to

discuss the implementation of the following short term solution:

1) Pursue MOUs with Wyoming and Nebraska through which the states would

agree to uphold current NRC regulations and license conditions, and

2) Exercise enforcement discretion to allow current licensees to meet state

groundwater requirements in lieu of alternative conditions that may exist in their

licenses. This will allow them sufficient time to prepare license amendment

requests to revise or eliminate such conditions and provide an effective

regulatory framework for states to assume oversight of ground-water protection

programs.

I would expect the staff to keep the Commission informed regarding their progress on achieving

this interim solution, as well as provide the Commission with a time line and resource estimates

for completion of the suggested rulemaking. In addition, the staff should consider taking this

rulemaking activity off of the fee base. While the cost of the rule would be passed onto a small

group of our current licensees, the recent rapid rise in uranium prices and mining claims would

indicate a significant future potential for new ISL facilities. I do not think it would be appropriate

to require current licensees to subsidize an effort that may have substantially greater benefit for

future licensees.