122nd Advisory Committee on Nuclear Waste (ACNW) Meeting, October 19, 2000

                          122nd ACNW MEETING
                              Room T2-B3

                              Two White Flint North
                              11545 Rockville Pike
                              Rockville, Maryland

                              Thursday, October 19, 2000
               The Committee met, pursuant to notice, at 8:30
     a.m..     MEMBERS PRESENT:
     B. John Garrick, Chairman
     George W. Hornberger, Vice Chairman
     Raymond G. Wymer, ACNW Member
     Milton N. Levenson, ACNW Member

     Amarjit Singh, ACRS/ACNW Staff
     Howard J. Larson, ACRS/ACNW Staff
     Lynn Deering, ACNW Staff
     Richard K. Major, ACNW Staff
     Martin J. Steindler, ACRS Consultant
     William J. Hinze, ACRS Consultant
     Paul G. Shewmon, ACRS Consultant
     Maury Morgenstein, Geoscience Management Institute, Inc.
     Don Shettel, Geoscience Management Institute, Inc.
     Robert W. Staehle, Adjunct Professor, University of
     Aaron Barkatt, Professor, Catholic University
     April Pulvirenti, Catholic University
     Geoffrey A. Gorman, Dominion Engineering, Inc.
     Chuck Marks, Dominion Engineering, Inc.
     Gustauvo Cragnolino, Center for Nuclear Waste
     Stephanie Bush-Goddard, Office of Regulatory Analysis,
     Nuclear Materials Safety and Safeguards, NRC
     Jim Lieberman, Office of General Counsel, NRC
     Paul Genoa, Nuclear Energy Institute
     Michael Webb, Office of Nuclear Materials Safety and
     Safeguards, NRC
     Allen Howe, Office of Nuclear Materials Safety and
     Safeguards, NRC
     Bret Leslie, Office of Nuclear Materials Safety and
     Safeguards, NRC
     Tae Ahn, Office of Nuclear Materials Safety and Safeguards,
     John T. Larkins, Executive Director, ACRS/ACNW
     Andrew C. Campbell, ACRS Staff [via speakerphone]
     .                         P R O C E E D I N G S
                                                      [8:33 A.M.]
               DR. GARRICK:  Good morning.  The meeting will now
     come to order.  This is the third day of the 122nd meeting
     of the Advisory Committee on Nuclear Waste.  The entire
     committee meeting will be open to the public.
               And today we're going to hear an information
     briefing from NMSS on Staff progress on developing a more
     risk-informed set of requirements for license and source
     material.  And we're going to continue preparation of our
     ACNW reports.
               Richard Major is the designated Federal official
     for the initial portion of today's meeting, and this meeting
     is being conducted in accordance with the provisions of the
     Federal Advisory Committee Act.  We have received no written
     statements or requests to make oral statements from members
     of the public regarding today's session, and if anyone
     wishes to do so, please notify a member of the staff, and
     please use a microphone and speak clearly.
               Our topic today is Part 40 Low Level Waste Source
     Material Improvement and Control of Regulated Source
     Material.  George Hornberger, committee member, will lead
     the discussion and introduce the speaker.
               DR. HORNBERGER:  Thanks, John.  This is -- to my
     recollection, anyway -- the first time the ACNW has heard
     about this material.  I gather that Staff is looking at
     potential problems related to regulation of the .05 percent
     source material and risk-informing any regulation and they
     are considering putting together a variety of options, and
     they are in the middle of working on this.  So we are going
     to hear from Gary Comfort.
               MR. COMFORT:  Good morning.  My name is Gary
     Comfort.  I am now working with the Rule-Making and Guidance
     Branch of the Division of Industrial and Medical Nuclear
               Basically, the staff has suggested that we give
     this presentation because of past, or recent concerns with
     disposal of material under .05 percent and some of the
     potential health impacts if it's not properly disposed of.
               Also, it's come up with a variety of other
     problems related to other exemptions for source material
     that are specific to products and their disposal.
               The presentation that I'm going to give is
     information on what the staff has been doing.  It will start
     with the background of why we're doing this.  Basically,
     I'll present the recommendations that the staff provided the
     commission in a recent commission paper in 1999, and then
     give the staff, status of the staff's activities to date on
     those issues.
               The 10 C.F.R. Part 40 is the guiding regulations
     for the use of source material.  Within 10 C.F.R. Part 40 is
     the definition of unimportant qualities.  "Source Materials"
     is defined as any uranium or thorium in any type of form or
     that's in concentrations of greater than .05 percent of
     uranium and thorium.  This was developed back in the '40s
     originally, with the Atomic Energy Act, primarily for the
     basis of the strategic value of the material.  The United
     States wanted to protect and control the movement of that
     material, to make sure this very important resource was made
     available to the Government on need.
               It wasn't really until the Atomic Energy Act of
     1954 that even the statements regarding licensing for health
     and safety reasons was even put in there.  And since that
     point, really, there haven't been any significant changes
     from, in, in Part 40 outside of minor changes in 1961 to
     Part 40 -- again, none of which were really directed toward
     the health and safety impacts.
               Basically, the Atomic Energy Act said that the
     Commission could define an unimportant quantity of source
     material that wouldn't require licensing.  However, again,
     we would be required, or the agency still regulated all the
     source material.  The Agency, in Part 40, defined an
     unimportant quantity of source material as under .05 percent
     by weight for uranium and thorium in general, not just that
     in, you know, which was in conjunction with what the .05 ore
     weight was put in the Atomic Energy Act.
               We also provided in the unimportant quantity list
     some specific exemptions, which are found in 40.13(b), which
     is the statement that ores that are unprocessed can go ahead
     and be used without, as an unimportant quantity.  And then
     in 40.13(c), there were a number of specific exemptions of
     higher concentrations of source material that could be used
     in products -- this like for glass refractories, count-, you
     know, aircraft counter-weights, other topics like that, that
     the Agency at the time felt were being used throughout the
     industry, would not cause at least a problem to the
     strategic value of the material in question.
               Unfortunately, in recent years we've come into a
     number of questions regarding the disposal of the material.
     We've come into licensees who produce materials for other
     than the content of the uranium and thorium, but they end up
     concentrating the uranium and thorium, and you'll get
     disposal streams that are around or right below the .05
     percent, but very large quantities.  Recent calculations on
     those show that there can be situations where those, those
     materials have been disposed improperly or used improperly,
     could result in health impacts greater than those found in
     the limits in Part 20.
               Also, there was a draft NUREG 1717, which
     evaluated the exemptions in both byproduct material and
     source material, again finding that there are certain
     circumstances, such as the use of thorium welding rods that
     have a potential to result in doses above Part 20 limits.
               Finally, the agreement states and the State of
     Colorado recently put in a petition for rulemaking, which is
     PRM-40-27, which requested the agency to reconsider the
     exemption in 40-22, which is for general licenses that
     exempts general licensees of source material from having to
     meet the requirements of Parts 19, 20, and 21.
               "General License" is defined as somebody who uses
     up to 15 pounds of source material at one time, not
     exceeding 150 pounds per year.
               And as I discuss, there's a large number, or there
     are a number of specific licensees who use this material and
     generate waste streams in fairly large quantities of under
     .05 percent that have come into question the disposal or
     transfer of this material under transfer provision in Part
     40, which is 40.51(b)(3), which basically states that a
     licensee can transfer unimportant, or can transfer material
     to exempt persons, and an exempt person is defined at
     40.13(a) as someone who receives, uses, owns, possesses
     material under .05 percent.  So the licensees have looked at
     that as a provision that they may be able to transfer it to
     a disposal site or other, other place under that, which has
     caused some concern.
               Where this recent changes come out with -- we
     started back in result to the COMSECY-98-022, which was a
     request, or which was a statement to the Commission
     regarding the transfer from one of these sites, which is
     METCOA to a RCRA site in Texas.  The material was going
     there for disposal, and there was a question as to the 40.51
     provision would allow disposal because the 40.13(a) says
     it's exempt for people who use, possess the material, but it
     doesn't talk about disposal of the material.
               The SRM --
               DR. HORNBERGER:  Gary, it was going to a RCRA site
     because it was mixed with?
               MR. COMFORT:  No.  Just because they were allowing
     it to, the site they'd made arrangements to receive the
     material -- you know, I'm not exactly sure why they were
     wanting to take it.
               But the material was then, we got an SRM back in
     February -- well, the original SRM came back stating that
     they should go ahead and allow, unless we can show otherwise
     that there's gonna be significant impacts, health impacts,
     because this is a controlled site, to allow the disposal.
     However, the Commission came back and said that they'd
     provide further guidance on this issue in its entirety.  In
     an SRM in February 2nd, '99, they came back and said we'd
     like you to go back at this issue and look at revising these
     problems that have, that have recently presented themselves,
     to clarify the issue in Part 40.
               Along with it, you know, as I stated, the State of
     Colorado petition requested the exemption that's in Part 41
     to, in Part 40 to conform to Part 20 for general licenses.
     The SRM, by the way, did tell the Commission not to worry
     about looking right now at the area of uranium recovery
     operations, since that's being covered under a different
     rule making activity.
               DR. HORNBERGER:  What was the date on the Colorado
               MR. COMFORT:  I'd have to --
               DR. HORNBERGER:  Is it on here?
               MR. COMFORT:  It's not on that, specifically.
               DR. HORNBERGER:  That's okay.
               MR. COMFORT:  But I can find it out if it's not
     right here.  Unfortunately, I don't have that with me right
               We basically went forward in response to the SRM
     with a SECY paper, 99-259, making suggestions of how that we
     felt we should proceed forward with these issues related to
     Part 40.  Basically, we decided that we did need to develop
     more risk-informed performance based regulations for the use
     of source material.
               And as part of that, our concerns because of the
     lack of requirements on disposal and transfer of the
     material and unclarified use in some cases under the
     exemptions of the material, that we would probably want to
     try to improve the control and distribution of that source
     material to exempt persons and general licensee.
               We also wanted to explore the best approach to
     delineate the responsibilities between NRC and other
     agencies that may have jurisdiction over this material with
     regard to the low levels of source material.  Source
     material is found naturally in nature, and so there's, you
     know, some concern, should it be treated as a naturally
     occurring radioactive material consistent with other
               DR. WYMER:  What other agency?
               MR. COMFORT:  EPA is primarily the one that's
     controlling NORM activities, but also the states have a role
     in that also.
               Finally, because of these problems with the
     potential for transfer of large quantities of material under
     the 40.51 provision, we basically went forward and said that
     we ought to do an immediate rule-making on requiring prior
     Commission approval for the transfer of this licensed
     material to people who are exempt under 40.13(a).
               We wanted to make sure that if it was going to
     happen -- and to date, we're not aware of it occurring, at
     least not any, at all, actually, without anybody coming to
     the Agency and requesting, first, permission to do it.  But
     we wanted to get that specifically in the regulation to make
     sure that there's no question about it again.  I've got
     some, a little bit further detail on that for the, as to
     what the actual language that's presenting a problem.
               Now, the Commission came back with an SRM after we
     provided these recommendations and basically agreed with
     those recommendations.  The SRM was dated March 9th of this
     year.  It, one of the things it did direct us to do is go
     ahead and establish two working groups, and make sure that
     we had the agreement states as participants and since they
     were impacted by this.  We have gone ahead and done that, as
     I'll discuss in the upcoming tasks.
               The Commission also told us in that SRM to make
     sure that the issue of the petition that had been submitted
     by the states, that although we were planning on going
     through with the rulemaking and answering the petition
     through that method to make sure that the states agreed that
     was an appropriate way to do it.
               So since that point, we've gone through and
     developed the Part 40 -- we've taken the responsibilities
     that have been given by the Commission and the SRM, and
     developed it into three separate tasks, which we're working
     on right now.  The first task that the SRM stated was that
     the staff was to initiate interaction with the other
     agencies that may have some, or that may have some
     jurisdiction or other responsibility regarding either the
     source material or the ores that are associated with the
     source material, or the daughter products that may be
     associated also.
               We've done that, we've basically created a
     working, which held their first meeting on September 20th,
     21st.  And this working group consisted of members from EPA,
     the agreement states, Army Corps of Engineers, and OSHA,
     which were all felt to be impacted.  And they decided that
     they wanted to participate.
               The status, the Commission's only tasking on this,
     though, is that we were to provide a status plan on how we
     were going to approach resolving the issues related to this,
     by March 9th, 2001.
               This first working group went ahead and did their
     meeting and came out with a number of issues that we wanted
     to, felt were necessary to be covered on it.  One of the
     first things was to go back and take a look at, what are the
     current individual agency responsibilities that we currently
     have under each Agency's charter or state's charter?
               Because there's -- a lot of this has some
     duplicity on it, or potential, depending upon how you read
     the regulations.  Again, that's one of the big issues that
     this group is hoping to work out, is if there is areas that
     either have duplicative coverage or there's potentially a
     lack of coverage that they feel that should be covered.
     This group is trying to determine those aspects and then
     trying to present a plan on how to better approach that.
               There is a situation that, because the Atomic
     Energy Act gives the NRC exclusive jurisdiction over Part 40
     material, there's some question of, because we went ahead
     and exempted from licensing some of that material, it still
     doesn't leave it under our regulation, and therefore should
     the states or EPA be allowed to regulate that material in
     any shape or form.
               And along with that, you have the problem that,
     because the Atomic Energy Act and Part 40 define source
     materials, or contain greater than .05 percent, that means
     the ore, or felt to mean the ore in its entirety, so there's
     some question as to how these agencies might be able to
     regulate that material.  And just to make clarification for
     that, that's what this group is attempting to do, is to
     clarify who really should have the jurisdiction.
               The other thing they're going forward to say, is
     NRC the appropriate agency to have jurisdiction over this
     material and the aspects if it's not being used for, for
     fuel cycle or nuclear matters.  And so that's also being
     looked at by the group.
               The group on that meeting also went forward and
     tried to develop a couple of options of how we could go
     forward if there should be changes or it's decided that
     changes need to be implemented.  And those changes included
     things such as, should we go back for legislative changes,
     or would we be able to do it through an executive order or
     some other method, MOUs?  They're looking at, trying to
     determine the entire gambit of both what needs to be done,
     what the result will be, and then how to do it.
               It's expected that this group will probably take a
     period of time and could impact our current Part 40
     regulations, depending upon what the decision and the Agency
     heads decide to do about the material.
               The second task that we broke down was to develop
     the, the new rule-making on the transfers amending Part 41
     to require the Commission approval for material less than
     .05 percent to exempt persons.
               The criteria that we went ahead and suggested,
     both in, well in the current rulemaking package that's
     before the Commission -- and this has been released to the
     public just last week -- was that we probably would go ahead
     and allow, or that we would allow the transfer of the
     material as long as it would be under 100 millirem.  If the
     doses didn't exceed, expect to be exceed under 100 millirem;
     however, if it was above 25 millirem, we'd notify the
     Commission any time that we went ahead and approved that
               DR. HORNBERGER:  The dose to whom?
               MR. COMFORT:  The dose to the public on that.
               And we issued that paper to the Commission on
     September 25th, and it can be found on our website now
     because it has been put out for public.  The Commission
     decided that they'd like to get some public input or other
     evaluating it.  As a matter of fact, we've already gotten
     some comments on it from the states, and I'll get into that
     in just a second.
               Where the big problem with 40.51 comes about is
     that it currently states that any licensee may transfer
     source or byproduct material to any person exempt from
     licensing requirements of the Act and regulations in this
     Part, or to any person in any agreement state subject to the
     jurisdiction of that state who's been exempted.
               In 40.13(a), it states that any person exempt from
     the regulations in this Part to the extent that the person
     receives, possesses, uses source material in which the
     source material is by weight less than 1/20th of 1 percent.
     Where they're running into the problem was that there was a
     concern that this gives licensees a large window to go ahead
     and just transfer this because it's specifically written
     into the regulations that they may do it.
               Unfortunately -- well, we, but, however, NRC has
     taken a past policy of that the material, once licensed,
     needs to follow the Part 20 disposal requirements. And the
     rationale for that is because 40.13 doesn't directly address
     disposal on this issue.
               We've gotten also requests from other licensees to
     take large quantities of material for further processing
     because of other content of the material, and that's felt to
     fall under this provision.  And you run into the question
     of, however, this material is the same as if it were going
     to -- basically, if you're saying it's under .05 percent by
     content, whether it goes to a disposal site or goes to a
     processor for some other process, it now becomes potentially
     unlicensed because it's going to an exempt person under this
     regulation.  So you have to look at -- you know, there's a
     concern that there some type of inequity in the handling of
     the material because in like one case that I'm aware of, the
     material was going to be sent, because of its lime content,
     to a cement manufacturer, and that may, in reality, have a
     greater chance of exposure to the public than the actually
     disposing it in a landfill or other, other waste site.
               So this has caused a lot of problem that we felt
     -- it's caused enough question over the last four or five
     years that we've gotten a number of letters from licenses on
     the applicability, that we did feel that it was worthwhile
     changing it to the language that requires the transfer be
     approved before it can be done, and make that specific.
               As I have stated, we have gotten some comments
     already, and those were from the agreement states.  One of
     -- they basically come from the state of Illinois and Texas
     on this issue.  The state of Illinois -- and also in this
     meeting with the jurisdictional group, there was some
     concern about how this changes NRC's past practices.  In the
     state of Illinois listed a large number of letters of past
     NRC policy that made it very clear that we, in the past,
     have not considered that 40.51 would apply to disposal.  And
     it hasn't necessarily, the policy hasn't necessarily been
     changed on that.  The few events that we have done for
     disposal have, have gone through an approval process that
     could be considered an alternative to the disposal
     requirements of Part 20 that we have gone through and
               But because of the language of the transfers for
     under 100 millirem now, which is inconsistent with some of
     NRC's decommissioning policies in Part 20 for 25 millirem,
     they have a concern of how this is gonna impact the states.
     The other thing they have a concern of is, because we are
     requesting an approval and the state does have some
     licensees that fall under their, that for consistency, it
     would cause some additional burden to them, rather than
     outright saying, no, you have to meet the Part 20s.  You
     know, they will have to, for requirements for disposal under
     Part 20, you now have to go through and perhaps do an
     additional analysis or handle other work.
               The other thing that they were, the state of Texas
     mentioned in their letter is that they suggested some minor
     language modifications to include agreement states to make
     it more clear there.  And currently, as I said, this paper
     is before the Commission, so we're waiting for a response as
     to whether we can go through with the final rulemaking
     package or not.
               The third and final task that we were working on
     is, was directed by the Commission, is to develop a
     rulemaking plan to improve the control and distribution of
     source material to exempt persons and general licensees.
     Also, to include the resolution of PRM-40-27, plus to make
     the entire rule more risk-informed.  So we set up a work
     group, that the charter of that group is to look at Part 40
     in its entirety, try to identify the problems that are with
     Part 40 in its current form, based upon our past history.
               This working group is made up primarily of NRC
     staff, with also a member from the agreement states and a
     member from the, from the CRCPD.  Acronyms.
               The Commission told us that we needed to have a
     rulemaking plan for the revision of Part 40, due to the
     Commission by March.  The first working group meeting was
     just held in the last two days.
               The Rulemaking Working Group basically went
     through and discussed, or tried to identify the problems
     that we've had with Part 40 in recent years and over the
     past.  It's had a long history that we've made attempts to
     change Part 40, even as recently as 1992.  There were a lot
     of papers describing a lot of the problems even at that
     point.  The rulemaking was made in part also because of the
     changes in Part 20, in an attempt to make it more consistent
     with Part 20, or evaluate the current regulation with Part
     20.  However, due to, because of a lack of some information
     on who it would impact and a concern of the conditions,
     politics of the time, of adding additional regulatory
     burdens that may not, two people wholesale, rather than
     trying to, to determine whether they're really gonna have a
     health impact was determined to be -- well, we weren't
     determined that we had the information available to make
     that determination at the point, so it was the advance
     notice of rulemaking that was put out, or proposed
     rulemaking that was put out was rescinded, and until
     recently it hasn't come up again.
               The working group's concerns focused, you know,
     primarily on the areas of the exempt, or people who were
     exempt from licensing under 40.13, and also the general
     licensees under 40.22.  In general, the working group felt
     that the areas covering specific licenses didn't show too
     particularly many problems outside of a little bit if
     clarity necessary on the part, or on that transfer
               The big problems found with both 40.13 and 40.22
     was the lack of clarity.  And what applied to the general
     licensees in the way of the other portions of the
     regulations.  Again, like 40.51 states that a licensee may
     transfer to, and it would be considered that because a
     general licensee is a licensee, it would apply to them; an
     exempt person's not a licensee, so that wouldn't.
               There's a lot of concern that general licensees,
     because they don't have any further requirements, are not
     particularly aware of the conditions that they should be
     operating under Part 40.  And further, because we don't have
     any method to track or evaluate where those licensees are,
     we have a difficulty in enforcing any type of restrictions
     that are currently, or that may be placed on them.
               In the area of exempt licensees, there's a lot of
     questions regarding the clarity of what's really being
     exempted.  Some of them are very specific in the use that
     says, you know, you can use it for this type of operation.
     However, if you start modifying it or doing anything else,
     it's not clear that it is going to be used on -- in a few
     cases, it does say that you can't modify it in any shape or
     form.  But in no case, in either the general licensees or
     the exempt, does it talk about how, you know, what you
     should do after you've finished using the product, you know,
     in the way of disposal or any other method.  And a lot of
     these products contain up to .4 percent by weight, or higher
     than .05 percent by weight, for the specific uses.
               So that was a big concern, because a lot of this
     material, particularly, the states were saying, now that
     landfills are getting exposure monitors on their, you know,
     for materials coming in are being set off and the states are
     having a lot of burden going out, trying to determine, is
     this an exempt material and what the problems presented for
     it, because they are having some dose rates associated.
               You know, the expectation is, in most cases, based
     upon NUREG-1717, that there isn't going to be a concern, but
     NUREG-1717 did show that for some of the exemptions that
     there were concerns.
               In the case of the general licensees, as in the
     petition from the states, the agreement states, they found,
     again, by material being transferred from a general licensee
     to a landfill, they've been able to detect where some of
     these general licensees are and they'll go back and they'll
     find that there are some contamination problems that again
     could result in, you know, under optimum conditions,
     exposures that would potentially exceed Part 20 dose limits.
               DR. HORNBERGER:  Gary?
               MR. COMFORT:  Yes.
               DR. HORNBERGER:  Could you help me out a little
     bit by giving me maybe a couple examples of the kind of
     things that are done by these general licensees and the kind
     of materials that would be passed on as exempt.
               MR. COMFORT:  Well, under, under the exemption,
     one of the -- we had members of the public, actually, at
     this working group meeting, and one of them has another
     petition in regarding a specific part of Part 40 in the
     exemptions, which is aircraft counterweights.  He's looking,
     he's done a lot of, he's been involved in that area for
     quite a while, and he's done a lot of research.  He found
     even in NRC's databases where aircraft counterweights, which
     are exempt under the, under Part 40.13(c) -- I think it's
     (5).  But they're exempt under that.  However, it says it's
     for the use as a counterweight.
               What's happening, he says, is as the planes now --
     you know, back in 1960 when this was written, that's, the
     planes were using these.  Now those planes that were built
     in the '60s are being retired, and there's a concern of
     what's going on, that the counterweights are either stored
     en masse for use on other, other, other planes.  However,
     with FAA requirements, that's becoming more difficult
     because everything has to be flight certified.  There's also
     the problems when they're cutting up these planes, they will
     just take a big chop saw and go right through the wings
     where the counterweights are and just cut the, cut the
     things out.  And the only things that are permitted are to
     use it as a counterweight.  And it does state that they can
     refurbish the protective outer coating of it.  And this is
     -- the counterweights are made with depleted uranium, which
     would fall under this.
               On those databases, he says they found exposures,
     particularly in some Air Force military applications, where
     people have gotten up to 25 rem exposures reported in that
     database.  So that's one of the types of -- it's used as
     thorium coatings, on optical, or within optical glass.
     There's, you know, a clarification issue there.  If the
     thorium is coated on the outside of the optical glass, does
     the exemption apply?
               There's thorium welding rods, which are exempt
     under the regulations there.  Actually, there's materials,
     glassware and flatware that you can eat off of that are
     exempt under that, up to .2 percent.  So there's a wide
     variety of small uses of the material that have the
     potential for exposure, depending upon where they are.
               DR. WYMER:  But the counterweights are a long way
     above .05 percent.
               MR. COMFORT:  Oh, yeah, well --
               DR. WYMER:  They're like a hundred percent.
               MR. COMFORT:  Yeah, that's basically a hundred
     percent with a protective shielding coating on it.  And
     that's where the concern is, is that when you get to the --
     you know, they're perfectly fine sitting in the airplane as
     designed for use.  It's when you start taking them out.
     Another example we had was that a company who imported a
     bunch of planes that we basically going to salvage, that he
     felt that he could get some value of, and he started parting
     the thing.
               And again, example of going through and ripping
     off the parts just using a saw, cutting through the
     material, destroying the protective coating.  When they
     realize, you know, hey, there is a potential problem, they
     ended up taking off the counterweights separately and
     storing them, and now they're just sitting on shelves
     because there's really not an after-market for them because
     of other flight requirements.  And the question comes, where
     do you dispose of those?
               Under, you know, under 40.13, there's no clear
     regulation, because the person really isn't, isn't required
     to follow the requirements of Part 40 at all, which would
     include, therefore, the disposal of it.  So you could
     potentially find these things going off to landfills or
     other uses, you know.
               He also gave an example again on the
     counterweights that in Japan, you know, they were asked to
     identify, you know, something that set off radiation
     monitors at a landfill there, and they were able to identify
     it as a counterweight, that it was going through.
               So, you know, there is a lot of concern about
     where does this material go.  And that's what this working
     group -- you know, one of the issues that this working group
     is going to do -- we may not be able to easily resolve where
     the material is directly going.  But one of the potential
     fixes that we're looking at is doing some type of
     requirements consistent, you know, comparable with those in,
     you know, related to Part 30, of licensing distributors and
     manufacturers of material and requiring them to report at
     least where they're sending those materials to.  And that's
     just one of, you know, the areas that, you know, one of the
     methods that we've looked at during this meeting of trying
     to change the regulations.
               We felt that there is a necessity to go through
     and try to clarify a lot of the language, because, again,
     the intent when it was written was to protect the strategic
     value of the material.  Now that there are some concerns of
     potential health impacts from it, at least in case where it
     could exceed Part 20 limits, that we're looking at doing a
     wholesale clarification of each of the exemptions and, you
     know, under general licenses.
               We've looked at things of doing two-part, or
     tiered general licenses, where some may not be, based upon a
     lower quantity limit, or a use limit may not be applicable
     to Part 20; others may be.  So there's a variety.  We may
     even go as far, you know, the group is also considering or
     putting up the option of, you know, removing either
     exemptions or general license.  But we're still at a
     relatively early stage where, you know, we're in the midst
     of developing a rulemaking plan with the options right now,
     and we plan on presenting that again in the, as stated to
     the Commission in March. Prior to that, it'll go out to the
     agreement states for comment probably around the December
     time period.
               So there's a lot of work and concern on, on how to
     handle, in particular, the disposal and reuse issues of this
     type of material, because of the concern of the potential
     for health impacts.  You know, it again, it has to be
     countered, however, by the problems of, we're not real clear
     as to who's using the material and the number of people that
     are using it, because we don't have any current restrictions
     or requirements for reporting on that.
               We are also have to be concerned about the type of
     material, that it is found naturally in nature in
     significant quantities all around, and that we don't want to
     get ourselves into a position that we're regulating
     everything, because that would be very burdensome to the
     American public, as well as anything else.  So there is a
     lot of difficulty in how do we go about actually making
     these revisions to make sure that we are doing our charter
     of protecting public health and safety, you know, without
     causing a tremendous burden to everybody involved.
               DR. GARRICK:  You've mentioned some measurements,
     like 25 r, etc.  What is the basis of those?
               MR. COMFORT:  I'm not clear on that report.
     Basically, from what it was described to me on, is that it
     was primarily because they were taking the counterweights
     and cutting them up and causing a lot of loose particulate
     matter that could be inhaled.  And you had a, you know,
     basically doing the operation for a long period of time on a
     number of counterweights.  So that's the understanding of
     how that dose was calculated.
               DR. GARRICK:  So with the calculated dose, it's
     not based on any dosimeters or --
               MR. COMFORT:  Uh -- I can't say I'm clear on that.
     I can find out for you on it, but --
               DR. GARRICK:  No, I was just --
               MR. COMFORT:  -- database.
               DR. GARRICK:  -- curious.  It sounds like a pretty
     serious problem in some areas and in some applications, such
     as the counterweight.
               MR. COMFORT:  Yeah, it --
               DR. GARRICK:  And I was just curious as to what
     was the basis for knowing, having that data.
               MR. COMFORT:  Yeah, a lot of the data that they're
     basing the concern on is on calculated exposures.
               DR. GARRICK:  Now, has this problem been brought
     to our attention principally by the states?  How did this,
     how did we suddenly -- maybe it wasn't so suddenly, but how
     did we come to decide that this was a problem and --
               MR. COMFORT:  It primarily came because of our
     licensees coming in to us and stating, hey, this transfer
     provision under 40.51 allows us to transfer material under
     .05 percent to exempt persons.  An exempt person is anybody
     who doesn't have a license under 40.13.  And we became
     concerned because of the, the large quantity of material
     that some of these licensees were looking at transferring
     that we did further evaluations with more, more up-to-date
     dose modeling plans.  And they came out with the potential
     that, under optimum conditions, going to the public, you
     could cause exposures to the public exceeding Part 20
     limits.  So that's where it really started.
               Along with it, at the same time -- as we said, we
     got the petition form the State of Colorado and the
     agreement states on the general license -- you know,
     actually in the last year we just got that along with the
     process.  And then we've also gotten the petition on the
     counterweights because of the concerns with that.
               But there's been a long, you know, a long history,
     as I said, back in 1992, that, that the staff had identified
     a large number of concerns with Part 40 in their evaluation
     to try to make it more consistent, or to at least compare it
     to the new requirements in Part 20, and we were already
     going forward with the rulemaking at that point, which then
     rescinded in '94.  So it's not a brand-new issue, really.
     It's just, it's raised its head in the last three or four
     years much more often.
               DR. GARRICK:  Yeah.
               MR. COMFORT:  It's caused us to really try to make
     some type of attempt to --
               DR. GARRICK:  Could you share with us a little bit
     more than you have as to the approach you're taking for
               MR. COMFORT:  okay, well, basically what we're in
     the process of doing is collecting data on the uses of the
     material right now.  We've also, you know, NUREG-1717's come
     out, or is in draft right now, but is getting close to a
     final draft which examines exemptions, you know, doses,
     exposures related to exempt materials in both the byproduct
     arena and source material arena, so we've got the new data
     on that to go forward and re-look at all the exemptions that
     we've provided.
               Before, as I said, when it was created in 1961 it
     was not really related to a health -- the exemptions weren't
     evaluated as much on a health impact as more as a commercial
     use as to what was already being done that they didn't want
     to impact industries too much.  We're going back and saying,
     well, now with the new data that we have that there is the
     potential for health impacts, that we have to at least go
     back and evaluate it.  Again, I don't think the disposal
     requirements were looked at in any type of scenario back
     when the regulations were written that, that we are seeing
     concerns, particularly because material has more than likely
     going into landfills for decades or more.  But because now
     that we've got more sensitive information, or equipment that
     it's being detective, so there's concerns from the landfill
     operators and the states along with it who have to respond
     to those, as to, you know, is there something that we can do
     about that.
               But again, you run into the big problem of trying
     to determine which of the materials coming from a natural or
     exempt source, versus which should have been covered either
     by, gone through a general license or a better disposition
     method.  So, you know, they're very difficult on that.
               And again, another, you know, one of the things
     that we're trying to do, or one of the methods that we're
     hoping to potentially use the rule for is to gather even
     further data by, you know, requiring people who hold general
     licensees or distribute to general licensees and exempt
     people, to identify themselves through that regulation that
     we can get a better sense.  And that's one of the options.
               And that's actually the option that they proposed
     in the 1992 ANPR, was to do a two-stage rulemaking.  One was
     to go out, basically require people to identify themselves
     with, with the idea that if -- we knew a certain set of
     people who were general licensees because for some reason
     they'd either come and asked us do they need a license or
     otherwise.  And we were, you know, part of the plan on that
     way, is if we couldn't get them immediately identified, well
     they'd start, the ones that we did know would go off and
     identify their competitors to make sure that it was on a
     clean playing field.
               DR. WYMER:  On the -- it's kind of hard to get a
     word in.
               MR. COMFORT:  Sure.
               DR. WYMER:  It seems to me you've got a really
     complex issue, as I'm sure you know.  On the one hand, you
     don't want to put an unnecessary burden on the public; on
     the other hand, you want to protect the public.
               MR. COMFORT:  Right.
               DR. WYMER:  And it seems to me that you aren't,
     you have a problem with consistency.  You've already faced
     with this Part 20.  You've come up with this, if it's over
     25 millirem per year, up to a hundred, then you have to
     inform the Commission, which is not exactly the same deal
     that Part 20 is applied in more normal cases, where if it's
     100 millirem or 500 millirem, then you've got to
     periodically, every five years, and make a report of some
     kind.  So you're not consistent there.
               And I don't have to stretch too far to think of
     uranium UF-6, depleted uranium in thousands of cylinders
     around the country, being some kind of source material
     that's going to have to be disposed of somewhere.  And it
     seems to me, somehow you have to wrap yourself around all of
     this in a consistent manner, and I don't see that as really
     your total target here.
               MR. COMFORT:  Well, the UF-6 issue, because that
     is being specifically licensed and it's doubtful that it
     would be under .05 percent by weight.
               DR. WYMER:  Well, I'd say that's right.
               MR. COMFORT:  Yeah, so -- I mean, it would be
     following Part 20 --
               DR. WYMER:  But neither is pure uranium in an
               MR. COMFORT:  Oh, I agree, that there's a lot of
     inconsistencies in Part 40, versus -- within Part 40 itself
     and the regulations.  The problem that you also have though
     is an inconsistency of there's a lot, it's because it's
     natural material, how do you -- which is found throughout
     the world, basically, in very, in many spots, very easily
     accessible.  You know, it's found in zirconium sands, which
     are very easily accessible, etc. -- that, how do, you know,
     that we don't, if it's not being processed, we're not
     licensing it and then basically we exempt that material from
     our regulations.  So you've got the potential that you're
     giving exactly, or probably greater exposures because a lot
     of this material is greater than .05 percent in nature that
     people are just sitting on right now.
               And you get into a consistently problem -- why are
     we not protecting them from the material, but we're so
     concerned about something that's got half the concentration
     on it.  And it's a problem with byproduct material and other
     materials related to the NRC.  They're pretty readily
     identifiable that they were created by man.
               When you get into the issue of the source
     material, where it's naturally occurring material, it's
     difficult to, to try to find that, that correct level as to
     where you're going to regulate it at because you are
     causing, you know, you are moving the, potentially moving
     where the exposure's going to, but the exposure's still
     there no matter where you put it and stuff.
               DR. WYMER:  It's pretty clean though.  In one
     case, it's processed as a source material.  In the other
     case, it's processed for something else.
               MR. COMFORT:  Right.
               DR. WYMER:  So that's kind of --
               MR. COMFORT:  Well, you end up processing it as a
     source material -- well, see our problem is we regulate the
     ones that are not, that are being processed for something
     else too.  And they're not -- I mean, a large number of our
     Part 4 licensees would much, much prefer that there wasn't
     uranium or thorium related to the material at all, because
     they don't have anything or want to do anything with that
     material.  And it causes them a tremendous burden because
     they do have the licensing and disposal requirements that
     they have to fall under, even though this material, you
     know, in some cases, they're actually -- the end result is,
     because of all the other things that they had to add in for
     the process --
               DR. WYMER:  So you recognize the problem.  Do you
     plan to deal with it?
               MR. COMFORT:  We're going to attempt to deal with
     it in a way that we at least have a better idea of where the
     problem is.  And again, as I was stating, the '92 proposal
     was to do it in two stages to identify who we're really
     going to impact by making them identify themselves and
     getting better control of how much of this material is
     really moving on, and then taking a second step of seeing of
     then seeing where the real health impacts are.
               DR. WYMER:  I think you need to look for
     consistency throughout the whole thing, including, including
     things like UF-6, so that it's all consistent, probably
     ultimately based on Part 20.
               MR. COMFORT:  Yes.  Well, I mean, the UF-6 issues
     I would have thought, or I would think would be covered
     under the Part 20 disposal requirements that it's gonna
     eventually have to be disposed of using Part 20, unless, you
     know, somebody comes in with a request for getting some type
     of alternative disposal allowed.  What the transfer
     provision is doing is basically saying if it's under .05
     percent, which other -- you know, for consistency, I mean
     there is an inconsistency there that we do have to look at,
     that says that if it's under .05 percent, the person didn't
     have to be licensed and so they don't have any requirements
     for disposal, whereas the licensee, if they have a waste
     stream that comes out as under .05 percent, they do have to
     meet Part 20, unless they transfer it for a beneficial use,
     is basically where it's coming from.
               MR. LEVENSON:  I've got a different kind of
     question.  The original parts of this, which were "receive,
     possess, and use" -- and then you attach a radiation
     exposure limit, whether it's 25 or 100 or whatever the
     number is -- fairly understandable and straightforward, and
     how you measure it.
               The minute you start including disposal in this,
     what does the measurement of radiation refer to?  It's no
     longer something easily measured by the, as an occupational
     dose by people handling it or exposed.  What does it all
     mean?  How do you, how do you cope with that?  Is this over
     the next thousand years?  To anybody?  How do you handle
     that incredible expansion of the scope?
               MR. COMFORT:  I am not familiar with exactly how
     they're doing the calculations for disposal.  Primarily, the
     transfer provision is taken to still account for that it
     doesn't allow for the disposal that they would have to come
     in under Part 20 for an alternative request if they wanted
     to put into a non-licensed radioactive site, you know, is
     the policy that we currently, I think, are still
     implementing, based upon that last Commission paper.
               It's just that they did an analysis that said,
     hey, it's not an NRC licensed site.  However, based upon the
     exposures that they calculated -- and I'm not exactly sure
     how they did calculate those -- I'm sure it was through a
     public, based upon the knowledge that I do have on those,
     that I have seen done in that past, under all modes that it
     could be taken or distributed, it's over a significant
     period of time.  I just don't know though for the, and it is
     for public exposure that they're looking at --
               MR. LEVENSON:  My perception is that very few of
     the disposal sites of the type we're talking about for this,
     some of which are ordinary landfills -- is there really
     adequate characterization that you could even do such a
     thing --
               MR. COMFORT:  Well, I mean, the --
               MR. LEVENSON:  -- the total effort required?
               MR. COMFORT:  The cases I'm aware of it is, we
     have not approved it to just a general landfill.  And this
     last case that was through a RCRA waste site, which you
     would expect to have some types of controls or institutional
     controls --
               MR. LEVENSON:  But nowhere the characterization we
     talk about for --
               MR. COMFORT:  That may be correct.  I'm not aware,
     exactly sure again how they did that evaluation.
               DR. HORNBERGER:  Marty?
               DR. STEINDLER:  I guess I continue to be amazed
     that the Commission is moving, apparently, down a path which
     is contrary to its own policy of risk-related activities.
     You keep talking about .05 percent, or whatever, and yet
     that's just an artificial number and there doesn't seem to
     be much movement in doing away with that and substituting
     something related to risk for it.
               You've also got -- I mean, if you're gonna attack
     the general problem, which I think you intimated, let me
     just remind you that every steelmaker injects Cobalt, to
     some extent, into every heap, beucase that's currently the
     standard procedure for measuring the life of the brick.
               Now, is that a risk?  No.  Is that a signficant
     risk?  Can it become a significant risk?  Well, they didn't
     think that disposal of material into sewerage streams was
     any, you know, significant risk, until lo and behold
     somebody downstream is doing something to it.  And that was
     also, you know, I mean, that was also kind of a silly base,
     not much foresight.  But it was based on a mass limit -- I
     mean, you can call it a curie limit, but it's, curie's just
     another term for mass in this case.
               Do I detect the enormous lack of coherence, as I
     think Ray was pointing out?  It's like the right hand
     doesn't seem to know what the left hand is doing, and the
     commercial sector looks at this and says, you know, who am I
     going to talk to?  About what?
               MR. COMFORT:  Well, that's part of what we're
     trying to do, is to make clear who, you know, who should be
     licensed and what should be.  Basically what we're looking
     at -- and the jurisdictional group is also looking at -- is
     the .05 percent limit a proper limit?  I think you get down
     -- if my memory is correct -- something on the way to meet
     the Part 20 limits for disposal, you should be around .003
               DR. STEINDLER:  But the point I'm making is that
     the Commission, in its infinite wisdom, used the, I guess
     they were semi-standard scenarios, to determine what
     constitutes class A, B, and C rates.  That report was the
     first attempt to analyze the potential licensing process on
     the basis of standardized risk.  Now, is it valid today?
     Probably.  Are the risk levels in, what?  WASH-780, or
     whatever number that is -- NUREG-780 still valid?  Yeah, I
     suppose.  They're not too bad.
               There was a standardized, there were two
     standardized low-level waste disposal site scenarios and the
     corresponding risk fixed, and then from that, you determine
     what's Class A, B, and C in terms of total content, based on
     risk.  I don't hear enough -- it seems to me I don't hear
     very much discussion about a risk-based approach to this
     issue.  You keep talking about weight percent.  Weight
     percent doesn't mean a whole lot.
               MR. COMFORT:  Again, I feel that we're going down
     a risk-based approach, but it's very different than handling
     any other type of material that NRC's doing because it a
     naturally occurring material.  How do you tell whether the
     atoms actually came -- you know, what's the difference from
     the atoms that are found in one process that's under, that I
     mean, that's found in nature -- we're not gonna say even
     it's being processed, versus that something that is being
     processed.  While the concern is that because it's being
     processed, it may be getting more of an exposure to people
     or giving the potential.  Also, if it's found in nature, you
     have the potential that people may not stumble upon it,
     whereas you're forcing it into a certain place.
               You can look at it other ways also, saying that
     when you transfer this material to a landfill or some other
     place that may be undesirable, perhaps that is the better
     place for it than in an open area in nature.
               It is difficult to determine where the balance
     should be between how much control for risk and health and
     safety purposes do we have to have versus how much are we
     also going to go up and clean up, you know, have control
     over the health and safety of people who currently or
     material that hasn't been moved and not licensed because he
     hasn't been moved but people are still being exposed to it.
               It is difficult to identify all of that and to
     take those protections so we have to take a risk informed
     base that we are not going to cost people a ton of money but
     on the other hand we are doing a proper amount of protection
     and that is what we are hoping to do in this is to go
     through a process of identifying where those uses are, what
     the impacts are from them and how, you know, how we should
     best handle it.
               The rulemaking group right now in its approach is
     that is one of the things that we are looking at, that we
     are thinking about proposing to the Commission is to
     continue evaluating data by going through a rulemaking that
     we can at least identify where these people are plus clean
     up some of the other concerns that we have, immediate, based
     on new information through NUREG 1717, through practices
     that we have heard from states that have concern from the
     petition that they did.
               We are on the steps of trying to identify where
     the material is presenting a problem and trying to fix that
               Again, the .05 percent number we have talked about
     a number of times in both the jurisdictional working group
     and our working group as to how to best -- you know, if that
     is the proper number and should it be changed, and again we
     are trying to get information to determine what that all is
     going to impact and what other concerns we are going to have
     to deal with because we just don't have a big handle on the
     number of people and the situations that this could cause in
     the way of health impacts.
               MR. LEVENSON:  Isn't it true that the .05 percent
     originally was not a health and safety number.  That arose
     from strategic reasons?  You know, I guess one should ask
     the question if you really did risk informed and were
     concerned about human health and welfare, shouldn't things
     like depleted uranium be buried, isn't that less of a risk
     to the population than making it into bullets?
               MR. COMFORT:  Sure, in a number of ways.
               DR. GARRICK:  Now you are really getting global.
     You have really expanded the scope.
               DR. HORNBERGER:  That doesn't need an answer.
               DR. GARRICK:  Included with SECY-99-259 is an
     options paper of ways to resolve this problem.
               Can you share with us what some of the current
     thinking is as to NRC's preferences?
               MR. COMFORT:  Okay.  The options paper that was
     associated with 259, a lot of it was basically discussing
     different methods that we could change jurisdictional
     requirements or adjust on those -- that was one part of the
     paper, you know, including as I discussed before that the
     jurisdictional group is looking at.
               DR. GARRICK:  What is the attitude of the NRC
     getting out of this business?
               MR. COMFORT:  I can't speak for the Commission
     itself but I have heard a lot of talk that because of the
     situation of it being naturally occurring material that our
     charter is really for the strategic -- or the Atomic Energy
     Act was developed for source material for the strategic --
               DR. GARRICK:  Right.
               MR. COMFORT:  -- aspect of it, that basically
     there has been talk of -- there has been some support I have
     heard of basically saying let's leave the material that is
     not being used specifically for source material to the fuel
     cycle out of NRC's jurisdiction and pass it off to EPA and
     the states.
               DR. GARRICK:  Right.
               MR. COMFORT:  And even in this jurisdictional
     group there was not a big uproar from those agencies when we
     stated that because there is some concern of dual
               The EPA feels that because of their other
     requirements on things like the daughter products and radon
     and radium and stuff that they would be able to adequately
     protect that material or to at least apply a regulation to
     it, and that just has to come down to see -- that is what
     they are trying to do right now is develop again what is
     currently in their charters on that, and then look at the
     impacts of going about that route.
               That is one of the options they will be evaluating
     to do, and if they decide to go do that, then the next step
     is what steps do they have to take in order to make that
     change and again it could be anything from having to go
     through a legislative change -- they are hoping that
     whatever we do may be able to go through something more
     simple like an Executive Order or Memorandum of
     Understanding, but those are all approaches that are being
     looked at from a legal basis and from how easy that they
     would be able to implement what is finally decided.
               Until that is done, we can't say.
               DR. GARRICK:  It seems that it is kind of
     important to try to bound this whole regulatory
     responsibility or at least clearly define it in a fashion
     that doesn't put you in the position of having to consider
     storing the whole planet or processing the whole planet.
               DR. GARRICK:  So I would think that you really
     want to give some serious thought to limiting the
     involvement of the NRC in this kind of activity.
               MR. LEVENSON:  This is not a hypothetical
     potential problem, John.
               You know, a few years ago the state of Oregon
     passed a law about what levels of radioactivity could be
     buried in the state and after they passed the law they
     discovered for instance that cremated persons, the ashes,
     could not be buried and there was all kinds of things.
               Quarries that ground granite, the grindings
     couldn't be allowed to drop on the ground, so we are in an
     area where we have to be very careful.
               DR. GARRICK:  Yes.
               MR. LEVENSON:  And as I say, it is not
     hypothetical.  It happened.x
               MR. COMFORT:  Well, we have run into the situation
     already that people who have rock collections have had to
     come in and get licenses because they have concentrations
     greater than .05 percent and the general license
     requirements of 4022 only apply to institutions, not
     individuals, so again those are the types of things that we
     are discovering that we are trying to determine how the best
     way to fix that is.
               MR. LEVENSON:  You mean the .05 percent
     concentration doesn't have a total quantity attachment?  If
     I have a one ounce piece of rock that is more than .05
     that --
               MR. COMFORT:  No, there is no total quantity
     attachment for an exemption -- there is none.
               MR. LEVENSON:  That's one of the things you ought
     to consider having.
               MR. COMFORT:  That is one of the things that we
     are looking at also, because we were looking at the
     potential of moving some of the material that we really have
     determined shouldn't be an impact at all from the general
     category to the exempt category.
               On the other hand, there's some material under the
     exempt category that we may be looking at putting either
     under a general license or a more specific license because
     of the new information on potential health impacts, so
     that's where I think we are trying to go forward with a risk
     informed approach on this.
               DR. GARRICK:  Yes.  If you approach it correctly
     or with some degree of thought on a risk informed basis you
     can address the issue of quantity of material or the size of
     the source term.
               MR. COMFORT:  Yes.  We have also looked at on top
     of quantity and concentration also the use of the material
               DR. GARRICK:  Right.
               MR. COMFORT:  As being a category.
               DR. WYMER:  These things sort to tend to have, to
     develop a life of their own and I can envision you just
     proceeding with developing your regulations and even though
     there is an alternative of passing off the responsibility to
     some other agency, but the juggernaut gets rolling and it
     continues to roll and the next thing you know you have got a
     regulation or change in the regulations.
               It seems to me that you can't be concerned with
     what you haven't licensed.  That just seems pretty
     straightforward even though there may be a hazard there.
               You can't, as John said, process the whole planet.
               DR. HORNBERGER:  That is correct, by the way?
               MR. COMFORT:  What?
               DR. HORNBERGER:  You are not concerned with what
     you are not licensing.
               MR. COMFORT:  No, we are concerned with some of
     the areas that we are not licensing but we have to also put
     a comparison as to what the impact is going to be.
               DR. WYMER:  But you don't have any mechanism for
     the things that you haven't licensed, do you?
               MR. COMFORT:  Well, that is what we are looking
     at, one of the ideas or one of the potential approaches that
     we may take is to start trying to put in some regulatory
     mechanism in an attempt to identify the uses of that
     material that we're not licensing, meaning exempt or in
     actuality general license material.
               DR. WYMER:  So in effect you license for all
     practical purposes so then you can deal with it.
               MR. COMFORT:  Yes.
               DR. WYMER:  But regardless of that, it seems to me
     that you can only have one standard.
               You are either protecting the health and safety of
     the people or you are not, and the Part 20 is sort of the
     bottom line.
               It says here is what you have got to do and you
     are sort of fooling around with that a little bit with
     respect to the 100 years.
               MR. COMFORT:  And that is a problem because Part
     20, and this is my own opinion on it, may not have
     potentially looked at the aspect of broad quantities of
     naturally occurring material.  In general, NRC licenses
     material that was man-made and we want to follow the whole
     path, but if we don't know the origin of it, it does get
     difficult to apply Part 20.
               DR. WYMER:  So you are going to change Part 20?
               MR. COMFORT:  I don't think that that is going to
     be in the plan right now.  I think we have to factor that
     in, however, into the regulations.
               I mean we are trying to look at it and make it
     consistent to the extent that we can, realizing Part 20 is
     there, but there is not going to be a guarantee that it is
     going to be 100 percent consistent because of the costs or
     other burdens that may be associated, versus the incremental
     safety that you would be providing by going entirely to Part
               DR. WYMER:  That is the risk informed aspect.
               MR. COMFORT:  That is the intent.
               DR. GARRICK:  Yes, I think one of the messages
     that is coming through loud and clear from us is that the
     process needs to be systematic and it needs to be
               You need -- the ACRS and the ACNW have worked
     together in trying to address NMSS issues in the context of
     some higher order strategy and set of principles that are
     consistent throughout the agency and it seems that is where
     you kind of have to start, such that you don't get yourself
     into a position that because these things tend to get
     compartmentalized along organizational lines that you lose
     contact with some overarching structure that clearly guides
     the risk informed practice at least at some level, at some
     high level.
               In the process of doing what you are doing I would
     hope that you would be looking very hard at what those
     principles are and how they map into other risk informed
     practices within the agency.
               DR. HORNBERGER:  Marty?
               DR. STEINDLER:  Yes, I would urge you to pay very
     close attention and re-read in the transcript what John just
               MR. COMFORT:  Okay.
               DR. STEINDLER:  That's the fundamental issue.

               Let me ask one question.  I can go down to the
     local store and in fact have and buy a gas mantel that I use
     in gas lights.
               MR. LARSON:  Exempt.
               DR. STEINDLER:  The old ones, older ones --
               DR. GARRICK:  He actually does that.
               DR. STEINDLER:  I have.
               MR. LEVENSON:  Next year he is getting running
               DR. STEINDLER:  Oh, no -- and no telephone.
               DR. GARRICK:  I have tried to reach him and I
     can't get him on the telephone.
               DR. STEINDLER:  As I am sure you know, these
     things are thorium and they are fundamentally 100 percent
     thorium by the time you get done with them.  They break.
               The process of disposal I think throughout this
     country uniformly is to throw the pieces away.  They are
     hotter than a pistol.
               MR. COMFORT:  Yes.
               DR. STEINDLER:  If you really want to know.  Do I
     have to go and get a license?  Will I have to go and get a
     license after you guys get all done with this?
               DR. STEINDLER:  Because you are going to have a
     Revolution on your hands if you require that.
               MR. COMFORT:  Oh, I agree completely and those are
     the types of situations that we are looking at.
               I mean thorium mantels are one of the areas that
     are exempt under 4013(c) as an exempt product.
               DR. STEINDLER:  I see.
               MR. COMFORT:  But --
               DR. STEINDLER:  At least I am not breaking the
               MR. COMFORT:  I mean there is again nothing
     addressing the disposal of those.  Is it a health impact to
     have those things disposed?
               There are certain circumstances where people use a
     tremendous amount of them for internal lighting.
               DR. STEINDLER:  Absolutely.
               MR. COMFORT:  That you could get exposures higher
     than -- I am not going to say above Part 20 because I don't
     know the exact numbers.
               DR. STEINDLER:  I can tell you they are higher
     than Part 20.
               MR. COMFORT:  That is one of the concerns.
               DR. STEINDLER:  Right.
               MR. COMFORT:  But on the other hand it is a
     product that has been used for a long time and you would
     have a Revolution on your hands if you start pulling out,
     you know, saying you can't have a lantern anymore of that
               DR. STEINDLER:  Well, let me ask one other
     question and then I will keep quiet.
               I occasionally get to Colorado and I travel up and
     down the hills and I pick up the yellow rock -- gee, it
     looks just like the thing I need for my rock collection.
     This is Milt's point.
               I put it in my pocket, take it home.  Do I have to
     get a license?
               MR. COMFORT:  No, that is covered under 4013(b),
     which says unprocessed ore, however --
               MR. COMFORT:  -- if you go --
               DR. STEINDLER:  Can I do anything with it?
               MR. COMFORT:  However, there is a reading of let's
     say you chop it into two pieces.  You have just processed it
     and now you technically you could be said to need a license,
     and that is one of the concerns.
               MR. LEVENSON:  If you polish it, you are in big
               MR. COMFORT:  And that's again where it is coming
     down to the idea of what I was mentioning, that rock
     collections that we have licensed individuals for the rock
     collections --
               DR. STEINDLER:  No, I understand.
               MR. COMFORT:  -- because they were considered
     processed ore.
               DR. STEINDLER:  Well, the final result of your
     efforts has to pass the chuckle test.  So far at least that
     last example won't.
               MR. COMFORT:  Oh, I agree completely on it and
     there's a lot of other just language problems that NRC has
     taken a policy opinion on how it is to be interpreted but
     it's not very clear that the interpretation couldn't be read
     differently with a different set of lawyers, et cetera, that
     make parts of Part 40 very unuseful in its current form
               Again, it was written primarily for the strategic
     purposes of controlling the material for the Government's
     sake and was never modified for the potential for health
     impacts and that is what we are trying to go through is to
     do a systematic look at what should based upon our now more
     recent experiences, should be regulated or changed in those
     regulations and to hopefully clarify any of those
     inconsistencies or potential problem areas, to outright make
     clear what we mean by what is stated.
               That doesn't mean that we are going to be able to
     in its entirety protect the public to the Part 20 limits
     because of the nature of the material.
               DR. HORNBERGER:  We are looking forward for
     performance assessment for your cabin, Marty.
               DR. GARRICK:  And your trips to Colorado.
               DR. WYMER:  I say this very reluctantly but this
     is an excellent example of the application of the risk
     informed regulations.
               DR. GARRICK:  It was hard for Steindler too.
               DR. STEINDLER:  Yes, it took me awhile.
               DR. HORNBERGER:  Gary, just one quick follow-up.
               I think that I understand this.  In the material
     there's some talk about zirconium sands and you mentioned
     zirconium sands.
               Is there any case where NRC is currently licensing
     anything having to do with zirconium sands or is this just a
     norm question?
               MR. COMFORT:  No, I think that there are agreement
     states that have licenses under -- in conjunction with our
     Part 40 limits.
               DR. HORNBERGER:  Is this for processing the
     zirconium sands?
               MR. COMFORT:  For processing it, but not just for
     the holding of it or moving of it.
               DR. WYMER:  You must have something similar for
     rare earths, mustn't you?
               MR. COMFORT:  Well, there is an exemption for rare
     earths which is an interesting category also.
               If you are processing for a rare earth to a
     certain aspect you get an exemption versus if you are
     pulling something than a rare earth out of it you don't.
     You know, it is again consistency.
               DR. HORNBERGER:  Is there a problem given that
     with duplicative regulation with OSHA because I would think
     that OSHA would care about things like processing zirconium
               MR. COMFORT:  That is one of those things that
     came up in the jurisdictional group and OSHA, one of the
     concerns is if we transfer this out to EPA we don't have
     control over the workers and anybody else but that aspect,
     so OSHA would be stepping in to protect the workers.
               DR. HORNBERGER:  But they are not there now.
               MR. COMFORT:  They basically take the -- well,
     first of all, they correct in the claim that they don't have
     jurisdiction based upon their regulations that say if it is
     licensed by NRC and are between the agreement, however the
     material that we have either exempt or under general
     license, which we really don't follow because the general
     license material doesn't have to be Part 20 limits, they
     further follow that same thing to say, well, NRC has the
     regulation for it so we are not going to follow it.
               Further, what was interesting is that they use the
     ICRP-2 standards for regulating radiation there too.
               DR. HORNBERGER:  Who protects the uranium miners?
               MR. COMFORT:  The miners?  I am not sure on that
               DR. HORNBERGER:  Okay.
               DR. STEINDLER:  The definition of the working
     level is in Part 20.  The radon ALI limits in Table 2 are in
     Part 20, measured as working levels, working level month.
               MR. LARSON:  I used to be on an ANSI standards
     committee where the Public Health Service were the ones that
     presented the results of the working level limits on the
     Colorado plateau, but I just have three little comments, two
               One is that this is an interesting meeting because
     like the West Valley presentation on Tuesday this one sort
     of defies the logical train of how things are done.
               DR. HORNBERGER:  You said that for the record?
               MR. LARSON:  And I am sure that Dr. Steindler
     sitting over there thinks back years ago when he tried to
     interest the Agency into some consistency in regulations
     between just high level and low level waste.
               You know, we treat the same isotopes differently
     depending on whether they are going to be high level or low
     level, but the third question was it seems like most things
     are coming to fruition or junction in March and then you are
     going to make some recommendations to the Commission.
               What is the intention to go from there?  Is it
     that you are going to go out for public comment or advance
     notice of rulemaking or what?
               I guess I missed where we go from here.
               MR. COMFORT:  Okay, well, the approach is that we
     are going to provide a rulemaking plan which will include a
     proposal of where to go from here to the Commission and
     based upon what they approve would go from there.
               If our proposal is let's go forward with the
     rulemaking to change the following types of areas, and they
     come back and say yes, then we will go forward with the
     notice of proposed rulemaking and whatever other regulatory
     steps are needed.
               MR. LARSON:  But you publish all the results of
     all of these working groups and task forces and everything
     else since they have been formulated in an SRN in a public
               MS. HANEY:  It would be in open meetings.
               MR. COMFORT:  Yes, it would be in open meetings.
               Actually, what we are doing right now is all in
     open meetings in the way of the preparatory.  We had members
     of the public at the working group in the last couple days
     from NEI and other areas and the same with the
     jurisdictional group.  They had members of the public at
     those groups also who had interests and we allowed them also
     to do, you know, actually present or speak at certain times
     and they did have public opinions.
               MR. LARSON:  And there's reports written that
     would be made available?
               MR. COMFORT:  Yes, there are meeting minutes of
     each of these meetings.
               MR. LARSON:  They are on ADAMS?
               MR. COMFORT:  Well, when they are put out, yes.
               MS. SCHNEIDER:  And there is a webpage.
               MR. COMFORT:  And there is a webpage that will
     also direct you to all of this and all the related material.
               Your question on the mining actually I did
     remember that because it did come in the jurisdictional and
     that is not done by OSHA but there is mining safety group
     that is responsible for it but it is not NRC.
               DR. GARRICK:  Yes.  They keep giving the WHPPS
     awards every year for good mining practices.
               DR. HORNBERGER:  Other questions from other Staff?
               [No response.]
               DR. HORNBERGER:  Anyone else?
               [No response.]
               DR. HORNBERGER:  Thanks very much, Gary.
               MR. COMFORT:  Thank you.
               DR. GARRICK:  One thing.  I wanted to thank you
     because you honored the 50 percent rule allowing 50 percent
     of your time for discussion.  That helps a great deal.
               MR. COMFORT:  Okay, thanks.
               DR. GARRICK:  We are doing very well.  Why don't
     we take our break now and then we will come back and start
     our report work -- fifteen minute break.
               [Whereupon, at 9:50 a.m., the recorded portion of
     the meeting was adjourned.]


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