Licensing for Crushing of Uranium Oreper 10 CFR 40.4 (k)

HPPOS-184 PDR-9111210289

See the memorandum from G. D. Brown to G. W. Roy dated July 13, 1977, and the informal note from R. L. Fonner to G. W. Kerr dated March 1, 1977.

Crushing of uranium ore is a form of processing subject to licensing by definition in 10 CFR 40.4 (k). A licensee possessed an NRC license for the milling of uranium ore. During an inspection, the licensee was cited as follows:

10 CFR 20.207 (a) states that licensed materials stored in an unrestricted area shall be secured from unauthorized removal from the place of storage. [Note: Similar requirements can be found in the "new" 10 CFR Part 20, Section 20.1801.]

Contrary to the above, crushed ore was observed by the inspector to be outside the fenced restricted area and unsecured in two areas: the facility parking lot, and the area adjacent to the ore stockpile along Highway 160. The licensee contended that the crushed ore (run through a crusher at the mill) was not licensed material pursuant to 10 CFR 40.13 (b), "Unimportant Quantities of Source Material," since it was unrefined and unprocessed ore as defined in 10 CFR 40.4. The licensee contended that grinding, in the milling industry, is part of the milling process, whereas, crushing is not.

Therefore, their position was that the citation was not legally valid, and a legal ruling was needed as to whether or not the crushed ore was unrefined ore or ore that was licensable. 10 CFR 40.13 (b) exempts for licensing unrefined and unprocessed ore (excepting export). 10 CFR 40.4 (k) defines "unrefined and unprocessed ore" as ore in its natural form prior to any processing, such as grinding, roasting or beneficiating, or refining.

"Processing" in this definition includes both physical and chemical procedures that alter the ore from the condition it was in just after removal from its place of deposit in nature. It is accepted interpretation of the AEA of 1954, as amended, that section 52 does not authorize the regulation of uranium mining by licensing.

However, AEA does permit regulation by licensing at any stage after mining. 10 CFR 40.13 (b), by exempting the transportation and handling of unprocessed ore, implicitly recognizes this authority to regulate. Further, by drawing the exemption lines at unprocessed and unrefined ore (i.e., ore whose gross appearance and chemical state has not been altered from the point of mining), there is recognition of underlying health and safety considerations. The assumption is that any processing or refining may alter the radiological environment associated with the source material enough so that the health and safety of workers and others becomes a matter of legitimate regulatory concern.

If the handling of the ore (e.g., sorting) exposes workers to an increase in exposure to radioactive material (i.e., radium, radon, etc.), it may be viewed as a licensable situation. Crushing of ore is obviously a form of processing subject to licensing by definition in 10 CFR 40.4 (k).

Regulatory references: 10 CFR 40.3, 10 CFR 40.4

Subject codes: 3.8, 11.6, 12.9

Applicability: Fuel Cycle