Thompson & Simmons, PLLC — Hazardous Materials Safety Interpretation

Page 1us ansporation 400 Seventh Street, S.W. Washington, D.C. 20590 Pipeline and Hazardous Materials Safety Administration JUN 2 6 2006 Mr. Charles T. Simmons Ref. No.: 06-0003 1225 Nineteenth St., NW, Suite 300 Thompson & Simmons, PLLC Washington, DC 20036 Dear Mr. Simmons: This is in response to your December 28, 2005 letter regarding the transportatior of radionuclide-bearing drinking water treatment wastes under the Hazardous Materials the meaning of the phrase "natural materials" in § 173.401(b)(4). Your questions are Regulations (HMR; 49 CFR Parts 171-180). Specifically you ask several questions related to paraphrased and answered as follows: Q1. Does the exception for "natural materials" in § 173.401(b)(4) include naturally radionuclides from public drinking water supplies and are intended to be managed as occurring zeolite water treatment medium that have absorbed naturally occurring waste? Al. The answer is no. The term "natural materials" in § 173.401(b)(4) means materials and radionuclides existing in nature, not those produced by humans. Radionuclides addressed by § 173.401(b)(4) do not include those contained in filters used in removal of radionuclides from drinking water, produced in nuclear reactors, or by occurring radionuclides in public drinking water supplies are absorbed onto zeolite other technological means. In the scenario described in your letter, the naturally medium through a water treatment procer. Therefore, these radionuclides, while the zeolite medium since they are transferred from another medium (i.e., the water). naturally occurring in the pre-treatment drinking water, are not naturally occurring in If the zeolite medium contains naturally occurring radionuclides prior to its use as a filtering medium, the exception in § 173.401(b)(4) is applicable. However, after the are absorbed. § 173.401(b)(4) does not apply. drinking water is processed through the zeolite medium and additional radionuclides 02. Do the radionuclide activity concentration values for exempt material in § 173.436 apply to parent nuclides when footnote b is referenced? A2. The answer is yes. Daughter products listed in association with a specific parent radionuclide in Footnote (b) in § 173.436 are accounted for when determining the exempt value for the parent in the Table in $ 173.436 173.401(64) 173.436 060003#

Page 203. Does the radium-228 activity concentration for exempt material account for progeny, including thorium-228 and its decay products? Thorium-228 is not included as a daughter product of radium-228. Based on Footnote (b) in § 173.436, only actinium-228 is accounted for in the activity concentration exemption value for radium-228. Q4. May a person who offers for transportation a radium specific drinking water treatment media rely on the § 173.436 activity concentration value for radium-228 based on the parent nuclide only? A4. The entry for radium-228 in Footnote (b) in § 173.436 specifies the presence of the material utilizing the formula in § 173.433(d)(6). contact this office. I hope this information is helpful. If you have further questions, please do not hesitate to Sincerely, Hattie L. Mitchell Chief, Regulatory Review and Reinvention Office of Hazardous Materials Standards#

Page 3Pollack THOMPSON & SIMMONS, PLLC. 3173.401(b)(4) 1225 19th Street, N. W., Suite 300 Washington, D. C. 20036 $173.436 202.496.0780/202.496.9111 Fax: 202.496.0783 RAM 06-0003 Waterbury, Connecticut 06702 440 Meadow Street ANTHONY]. THOMPSON December 28, 2005 CHARLES T. SIMMONS Via E-Mail and U.S. Mail immons@athompsonlaw.co dmitted in CT and D. Director of Hazmat Standards Mr. Edward Mazzullo CHRISTOPHER S. PUGSLEY USDOT/PHMSA, Suite 8422 Office of Hazardous Materials Safety 400 7' Street, S.W. Washington, D.C. 20590-3012 RE: Request for Regulatory Interpretation Dear Mr. Mazzullo: regulations pursuant to 49 C.F.R. 107.14(b) made on behalf of Water Remediation This is a request for interpretation of U.S. Department of Transportation ("DOT") echnology, Inc. ("WRI" processes radionuclides from drinking water supplies. This request generally relates to DOT regulations implementing the IAEA TS-R-1 regulations governing the safe transportation of radioactive materials, and specificall ertains to the 49 C.F.R. 173.401(b)(4) exemption from the scope of regulation fol "natural materials and ores" as it applies to radionuclide-bearing drinking water treatment ederal standards by 2007. Unlike conventional technologies that discharge radionuclide nunicipal drinking water providers nationwide to remove radionuclides to meet very lo ion selective media, which must, when saturated, be transported for waste management or disposal. Because the spent media will contain radionuclides, it is important that (radioactive) hazardous material could be a disincentive to complete radionuclide Having to transport spent treatment media as Class 7 removal and isolation, as offered by WRT's technology. ' For further information, please see: http://www.wrtnet.com.#

Page 4Mr. Edward Mazzullo Page 2 December 28, 2005 meeting with DOT staff, if necessary. Please do not hesitate to contact the undersigned if We welcome the opportunity to clarify any of the information presented in this request by DOT has any questions or requires further information regarding this request I. Background Information background radioactivity has been shown to be highly variable worldwide, depending on The primordial radionuclides are ubiquitous in the natural environment and natural ocal geological influences (Reterence: EPA NORM Report 1991; Myrick, T.E., B.A erven, and F.F. Haywood, "Determination of Concentrations of Selected Radionuclide in Surface Soil in the U.S.," Health Physics, Vol. 45, No. 3, pp. 631-642, 1983; UNSCEAR 1998). Human interactions with the natural environment can alter the radionuclide content of natural materials, or cause the removal of radionuclides from one environmental medium and subsequent transfer to another. Chemical and/or physical processing of materials obtained from the earth is often municipal drinking water supplied from deep wells must meet federally imposed required to purify such materials to render them fit for a particular purpose. For example, istributed EPA's ae leation crae into fect in 20d and municipal so be carele struggling with how to meet them. Shese cite a can be met by chenie or prysical rening dead imm dies in water, only to transport them to another environmental medium. Hydrous manganese oxide ("HMO") and reverse osmosis processes, for example, result in the discharge of concentrated radionuclides to surface water or the sewer. WRI manufactures, installs and maintains an alternative technology for radionuclide emoval through contact with a radionuclide-specific absorhent zeolite medium tha the alkaline and alkaline-earth metals.3 electively absorbs radium. Zeolites are naturally occurring hydrated aluminosilicates o vessel, which fluidizes the bed of media and results in absorbed radionuclides being The WRT technology employs an upflow movement of water through the treatment is not regenerated by stripping off the radioactive material and discharging these Radionuclides are transferred from drinking water to the treatment media, and the media radioactive residuals to the environment (e.g., to the sewer). The spent media must be 3 United States Geological Survey, "Zeolites"(1995). 2 See: 67 Fed. Reg. 76708, December 7, 2000. 1225 19'h Street, NW., Suite 300 • Washington, DC 20036#

Page 5Mr. Edward Mazzullo December 28, 2005 Page 3 media may range from 1 to 10 or more Bq/g. It is therefore critical that persons who offer transported for waste management or disposal, and the activity concentration of the these materials for transportation understand how the current exemption language of §173.401(b)(4) applies to this material. II. The Regulations DOT's regulations harmonizing 49 C.F.R. 173 with the International Atomic Energy Agency's ("IAEA's) TS-R-1 Regulations for the Safe Transport of Radioactive Material, effective October 1, 2004, contain the following provision: §173.401 Scope (b) This subpart does not apply to: (4) natural material and ores containing naturally occurring radionuclides which e not intended to be processed for use of these radionuclides, provided th tivity concentration does not exceed 10 times the values specified in $173.43( includes the following information for the naturally occurring radionuclides Ra-226 and The table at §173.436 shows a variety of parameters for different radionuclides, and Ra-228: Radion clide Symbol of Element and Atomic Activity con- Activity con- Activity limit Number consignment for exempt Activity limit oration for centration for nateria material exempt (Bg/g) (Ci/g) Ra-226(b) 1.0 x 10' 2.7 × 10-10 1.0 x 104 2.7 x 10] Ra-228(b) 1.0 10' 2.7 x 10-10 1.0 x 105 2.7 x 10° secular equilibrium are listed in the following:" and identifies the following decay chains Footnote b to the table at §173.436 states "Parent nuclides and their progeny included in for Ra-226 and Ra-228: Ra-226 Rn-222; Po-218; Pb-214; Bi-214; Po-214; Pb-210; Bi-210; Po-210 Ra-228 Ac-228 1225 19'h Street, NW., Suite 300 • Washington, DC 20036#

Page 6Mr. Edward Mazzullo December 28, 2005 Page 4 Ill. Request for Clarification A. Scope of "natural materials." We are seeking clarification of the phrase "natural materials" in the first clause of §173.401(b)(4) as it applies to natural materials that are used to absorb natural radionuclides from drinking water. An important distinction separating "natural" from "artificial" is that the radionuclides in deep aquifers are all naturally occurring and not man-made - e.g., created in a particle accelerator or nuclear reactor. In the case of WRT's technology for radium removal from drinking water, a non-radioactive zeolite - a type of natural clay - is used to absorb the radionuclides from drinking water in a manner that evenly distributes the radionuclides throughout the zeolite media. In the drinking water treatment context, the quality of "naturalness" called for in the regulation should be liberally construed! to include materials onto which naturally occurring radionuclides are absorbed from drinking water Moreover, the radium that is removed from drinking water is not intended io be "used" pursuant to a federal mandate and is intended to be disposed of at an approved disposal for any particular purpose. Rather, radium must be removed from drinking water facility. media exceeding 1 Bq/g as Class 7 (radioactive) hazardous material To conclude otherwise may require public water providers to transport water treatment §173.401(b)(4) encompasses naturally occurring zeolite water treatment media that onsequently, we request DOT clarify that the exemption for "natural materials" in have absorbed naturally occurring radionuclides from public drinking water supplies and are intended to be managed as waste. B. The 10x exemption of §173.436 drinking water treatment media containing uranium and/or radium, as follows. 1225 19th Street, NW., Suite 300 • Washington, DC 20036#

Page 7Mr. Edward Mazzullo December 28, 2005 Page 5 For example, the intended to convey the message that the activities of decay progeny are taken into account in the $173.436 table values. Please confirm that the radionuclide activity concentration for exempt material values in §173.436 that reference footnote b apply to parent nuclides. Ra-228 would have an exempt activity concentration of 10 x 10 Bq/g, or 100 Bq/g Ra- material is 10 Bq/g and that under §173.401(b)(4), natural materials and ores containing 228. The §173.436 table listing for Ra-228 references footnote b, which identifies only the Ac-228 decay isotope, unlike Ra-226 which identifies the full complement of its decay progeny, including the relatively longer half-life Pb-210, in footnote b. Our • Whether only listing Ac-228 in the footnote b decay series for Ra-228 is a result of technical modeling done by IAEA and takes the full complement of Ra-228 decay progeny into account; or • Whether the regulations are intended to restrict computing Ra-228 activity concentration to the activity concentrations of the Ra-228 and Ac-228 isotopes. [This interpretation could mean that materials having an exernpt activity concentration of Ra-228 could ultimately become non-exempt over time, as Th- concentration than kas, 28 cies 8 versus 10m Bc for eateral matais ty ores satisfying the §173.401(b)(4) exemption).] Therefore, we request the following: • Please clarify whether the Ra-228 activity concentration for exempt material accounts for progeny, including Th-228 and its decay products; and Whether a person transporting a radium-specific drinking water treatmen redia may rely on the 8173.436 exemption value for Ra-228 bused on th parent nuclide alone. 4 See: Report from the Special Working Group on Exemption (Backelandt, et al., 1996), nuclide." "Where daughter products are involved, these values refer to the activity of the parent 1225 19"h Street, NW., Suite 300 • Washington, DC 20036#

Page 8Mr. Edward Mazzullo Page 6 December 28, 2005 IV. Conclusions The requested clarifications will greatly assist WRT and municipal drinking water requirements and maintaining compliance with DOT's regulations providers charged with radium removal from the nation's water supply in meeting EPA' hesitate to contact the undersigned if you have any questions or require further Please do not information. Sincerely, Charles le Tieres Charles T. Simmons Cc: Fred Ferate, Health Physicist Office of Hazardous Materials Technology DHM - 23 1225 19t Street, NW., Suite 300 • Washington, DC 20036#