Law Offices of Charles T. Simmons, LLC — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration SEP 8 2010 1200 New Jersey Ave. SF: Washington. D.C. 20590 Mr. Charles T. Simmons Law Offices of Charles T. Simmons, LLC 1250 Connecticut Avenue, N.W., Suite 200 Washington, D.C. 20036 Ref. No. 10-0106 Dear Mr. Simmons: This responds to your May 5,2010 letter requesting that the Pipeline and Hazardous Materials Safety Administration (PHMSA) re-visit its response to your original request for interpretation of the Hazardous Materials Regulations (49 CFR Parts 171-180). The response to your original request was issued June 26, 2006 [Ref. No. 06-0003; Attached] and signed by Hattie L. Mitchell, Chief, Regulatory Review and Reinvention, Office ofHazardous Materials Standards. In that original request, you asked PHMSA ifthe exception in § 173.401 (b)( 4), which provides regulatory relief from the Class 7 (radioactive) material regulations for natural material and ores containing naturally occurring radionuc1ides, applies to zeolite media used as part of a water treatment process to remove radionuc1ides from drinking water. PHMSA responded stating the exception does not apply to the contaminated zeolite. You assert that the letter issued on June 26, 2006 [Ref. No. 06-0003] is in conflict with other more recent letters issued by PHMSA on the applicability of § 173.401 (b)( 4). Thus, you are asking PHMSA to reconsider the response to that June 26, 2006 letter. PHMSA disagrees with your assertion that the June 26,2006 [Ref. No. 06-0003] letter conflicts with other more recent letters of interpretation that have been issued on the applicability of the exception in § 173.401 (b)( 4). Each ofthe more recent letters that you reference concern ores or materials remaining from the processing ofores. As your request does not involve "natural material" (due to the man-made processing involved) or "ores containing naturally occurring radionuclides" our previous response to you is not inconsistent with the other letters you reference. Therefore, PHMSA is not revising the letter of interpretation that was issued to you on June 26, 2006. I hope this answers your inquiry. If you need further assistance, please contact this Office. hief, Standards Development o ce of Hazardous Materials Standards#

Page 2LAW OFFICES OF CHARLES "1'. SIMMONS, LLC ATIORNEY AT LAW LchtnlcwlJ ~ 113. rfVI (h)~) -gAiv1 10- 010& 1250 CONNECTlCur AVe:NUE, NW SUITE 200 WASHINGTON, D.C. 20036 DlRECf (202) 26 1-6542 fAX (202) 26 1-.3508 MOBILE (202) 66!d-897 1 E-MAIL csimmons@csimmonslaw.com May 5, 2010 Office ofHazardous Materials Standards Pipeline and Hazardous Materials Safety Administration Attn: PHH-10 U.S. Department of Transportation East Building 1200 New Jersey Avenue, S.B. Washington, D.C. 20590-0001 Re: Request for Revised Interpretation of 49 CFR 173.401(b)(4) To Whom It May Concern: In a letter to the undersigned dated June 26, 2006 [Ref. No. 06-0003, hereafter "Simmons letter"], the Pipeline and Hazardous Materials Safety Administration (PHMSA) concluded that the exclusion from the scope ofregulatiun sel forth in 49 CFR 173.401(b)(4) was inapplicable to natural zeolite drinking water treatment media containing naturally occurring radionuclides. This letter requests PHMSA to re-visit its conclusion in the Simmons letter and revise it to be consistent with conflicting, and more recent, interpretations by PHMSA of 173 AO1 (b)( 4) that are more aligned with the International Atomic Energy Agency (IAEA) Regulations for the Safe Transport ofRadioactive Material No. TS-R-J (2009) and associated IAEA guidance. 1. The Simmons Letter In the Simmons letter, PHMSA interpreted the applicability of49 CFR 173A04(b)(4) to drinking water treatment media containing naturally occurring radionuclides as follows:#

Page 3Ql. Does the exception for "natural materials" in § 173.401(b)(4) include naturally occurring zeolite water treatment medium that have absorbed naturally oecurring radionuclides from public drinking water supplies and are intended to be managed as waste? AI. The answer is no. The term "natural materials" in § I 73.401 (b)(4) meam: 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 use:d in removal ofradio nuclides from drinking water, produced in nuclear reactors, or by other technological means. In the scenario described in your letter, the naturally occurring radionuclides in public drinking water supplies are absorbed onto zeolite medium through a water treatment prOCei..1~' Therefore, these radionuclides, while naturally occurring in the pre-treatment drinking water, are not naturally occurring in the zeolite medium since they are transferred from another medium (i.e., the water). 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. Howevt:r, after the drinking water is processed through the zeolite medium and additional radionuclides are absorbed, § 173.401 (b)(4) does not apply. PHMSA's conclusion is apparently based on a beliefthat transferring naturally occurring radionuclides from a medium where they are found in nature to another natural medium where they are not causes the radionuclides to lose their "naturalness" and become equivalent to radionuclides "produced in nuclear reactors or by other technological means." This belief conflicts with interpretations by PHMSA discussed below which conclude that primordial radionuclides are covered by 173.401(b)(4) following transfer to different materials. Moreover, established science and the IABA recognize that primordial radionuclides and their progeny remain "natural," even after processing (provided such processing is not intended to extract radionuclides for use oftheir radioactive properties). Central to the act ofprocessing material containing natural radionuclides, whether by chemical or physical treatment, including filtration, is an intention to transfer or partition the material into desired and unwanted fractions. Radionuclides are not created by such processing, just transferred from one fraction to the other. As long as the underlying intention is not to extract natural radionuclides for use oftheir radioactive properties (as in nuclear fuel), IAEA recognizes that processing per se does not render naturally occurring radioactive materials within the scope ofregulation. 2. The Lambert Letter An interpretive letter dated January 15, 2008 to Michael Lambert [Ref. No. 07-0218, hereafter "Lambert letter"] addressed the applicability of 173.401(b)(4) to shipments ofsoil contaminated by natural uranium removed from a molybdenum ore processing facility that was licensed by the U.S. Nuclear Regulatory Commission. (NRC). The request for interpretation stated "It is not known whether the natural uranium contamination in soil is the result ofthe presence of ore 2#

Page 4brought onto the project site over the many years of operation or residual material resulting from processing ore of a presently unknown origin." Natural uranium contamination in soil was reported to be less than ten times the activity concentration for exempt material in 49 CFR 173.436 and the soil was being transported for laboratory analysis. PHMSA responded: Q1. May the samples of material that are to be shipped for additional characterization be offered for transportation and transported under the exception in 173.40 I (b)(4) for natural materials and ores? AI. Yes. Section 173.40 I (b)( 4) provides an exception for natural material and ores containing naturally occurring radionuclides which are not intended to be processed for use of these radionuclides, provided the activity concentration of the material does not exceed 10 times the values specified in §173 .436. Since the preliminary characterization of your material shows that the known concentration of the natural uranium is slightly less than 10 times the exempt concentration limit, and because the sample of material is being transported for purposes other than the extraction ofradio nuclides, the exception in §173.401 (b)(4) may be used. Natural uranium was not originally present at high levels in the contaminated soil to be transported, but was transferred to the soil by technological activity involving ore handling and/or processing to recover molybdenum. Unprocessed molybdenum ore contained natural uranium; ore spillage or the release of uranium-contaminated residues arising from ore processing activities caused soil to become contaminated with elevated concentrations ofnatural uranium. PHMSA's conclusion in the Lambert letter contradicts the Simmons letter: both situations involve the transfer ofnaturally occurring radionuclides from a medium where they occur in nature to another natural medium where they do not; and, in both cases, the intended objective was processing a natural material molybdenum ore in Lambert and ground water in Simmons- to obtain a purified product - molybdenum and drinking water meeting EPA standards. In neither case was processing carried out for the use ofthe radionuclides. 3. The Colborn Letter An interpretative letter dated July I, 2005 to Kurt Colborn [Ref. No. 05-0145, the "Colborn letter"] addressed the applicability of49 CFR 173.401(b)(4) to natural uranium and thorium in "material" to be transported from a defunct tungsten processing facility ''which represent the residual radioactivity remaining after the tungsten extraction process" and was being "transported for disposal and will not be processed for use ofthe radionuclides." The exact nature ofthe "material" described by Mr. Colborn isn't clear -just that it is matter containing "contamination from naturally occurring radionuclides," and it is "being shipped as 3#

Page 5waste for disposal." PHMSA responded: In order to determine whether the material to be shipped satisfies the conditions in § 173.401(b)( 4) to be exempt from Class 7 transport requirements, one must compare the actual activity concentration ofthe material (defined as the sum of the activity concentrations ofthe parents, i.e., ofU238 , Th232 , and K40 in your case) with 10 times the calculated activity concentration limit for the mixture. Here, PHMSA did not qualify the applicability of 173.40 I (b)( 4) on whether natural radionuc1ides were intrinsic or extrinsic (i.e., transferred to) the material in issue. Instead, PHMSA considered only the identity and concentration ofthe natural radio nuclides in issue, all ofwhich were primordial and below 10 times the exempt activity concentrations in 173.436. PHMSA's interpretation in Colborn is consistent with Lambert, which are both in conflict with the Simmons letter. 4. lAEA TS-R-l (2009) and lAEA Guidance support revising the Simmons letter. The IAEA Regulations for the Safe Transport ofRadioactive Material TS-R-1 (1996) forms the underpinning ofDOT's regulations governing transportation ofradioactive materials.l RSPA's (PHMSA's predecessor agency's) stated purpose for modeling U.S. rules on IAEA's was ''to harmonize requirements ofthe [hazardous materials regulations] with international standards for radioactive materials.,,2 IAEA reviews its transportation regulations on a two year cycle in order "to reflect new information and accumulated experience." 3 In the 2009 edition ofTS-R-l, the lAEA provided a more expansive description ofmaterials outside the scope ofregulation, and emphasized the exclusion from regulation of"processed" materials as long as the materials were not intended to be further processed for use ofthe radio nuclides: 107.These Regulations do not apply to: (e) Natural material and ores containing naturally occurring radionuclides which are either in their natural state, or have only been processed for purposes other than for extraction ofthe radionuclides, and which are not intended to be processed for use of these radionuclides, provided the activity concentration ofthe material does not exceed 10 times the values specified in Table 2, or calculated in accordance with paras 403--407 1 67 Fed. Reg. 21328 (April 30, 2002). 2 Id. 372 Fed. Reg. 65470 (November 21,2007). 4#

Page 6While the 2009 edition ofTS-R-l may not control PHMSA's interpretation of its own rules, it is persuasive that international authorities in their accumulated experience consider "processing" materials containing natural radionuclides not to be dispositive of their excluded status, provided the materials are not intended to be further processed "in order to use their radioactive properties.,,4 All of the situations described in the Simmons, Lambert and Colborn letters involved natural materials containing naturally occurring radionuc1ides that were processed for purposes other than use ofthe radionuc1ides. All situations involved the presence ofnatural radionuc1ides in a natural material that had to be transported to a place for permanent disposal. Accordingly, the exclusion of49 CFR 173.401(b)(4) should apply equally in all situations. 6. Question for Reconsideration In light of the foregoing discussion, it is respectfully requested that PHMSA reconsider interpretation in the Simmons letter in its response to the following question: Question: May natural zeolites that have been used for water treatment and as a result of such use contain naturally occurring radionuclides be transported for disposal under the exception in 49 CFR 173.401(b)(4) for natural materials and ores? Please feel free to contact the undersigned if you have any questions regarding this letter. Respectfully submitted, Charles T. Simmons 4 IAEA Advisory Material for the IAEA Regulations for the Safe Transport ofRadioactive Material, TS-G-l.l (2008) at para. 107.4. 5#