ML19263D052
| ML19263D052 | |
| Person / Time | |
|---|---|
| Issue date: | 03/07/1979 |
| From: | Bradford P, Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| To: | |
| Shared Package | |
| ML19263D053 | List: |
| References | |
| REF-10CFR9.7 SECY-79-88, NUDOCS 7903200508 | |
| Download: ML19263D052 (70) | |
Text
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- t February 2,1979 SECY-79-88 COMMISSIONER ACTION For:
The Commissioners From:
Howard K. Shapar Executive Legal Director
-1 Thru:
Lee V. Gossick
- 'y Executive Directer for Operations,,F[
"/
Subiect:
TIMING OF CERTAIN REQUIREMENTS OF THE URANIUM MILL TAILINGS RADIATION CONTROL ACT CF 1978 Purecs e:
To recommend to the Commission a course of action to be taken regarding when certain provisiens of the Uranium Mill Tailings Radiation Control Act of 1978 pertaining to Agreement State and NRC licensing of uranium milling and tailings become effective.
Discussion:
Intreduction The Uranium Mill Tailings Radiation Control Act of 1978 (":.iill Tailings Act") 1/ amends section 11e of the Atomic Energy Act of 1954 by addihg a new section lle(2) to make tailings or wastes produced in milling operations licensable as byprcduct material. Heretofore, the Atomic Energy Act provided no direct licensing authority over tailings.
In addition to expanding the definition of byproduct rraterial to include mill tailings, the Mill Tailings Act gives NRC and Agreement States new responsibilities in the regulation 1/ Pub. Law 95-604, signed by the President on Novembez 8,1978.
7903200508
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. and control of milling and tailings. The timing of these new responsibilities, however, is less than clear for the period of three years following the enactment of the Mill Tailings Act. Two major questions regarding the dates of effectiveness of the requirements of the Mill Tailings Act are of immediate concern:
(1) Do,both the States and the Federal Government (NRC) have authority to license uranium mill tailings (in other words, exercise concurrent licensing jurisdiction) for the three years following enactment of the Mill Tailings Act?
(2) Are the requirements of new section 274o of the Atomic Energy Act pertaining to procedures to be followed by Agreement States in issuing source material licenses for uranium mills immediately effective?
The ultimate resolution of these two issues will have serious ramifications for both the Commission's and Agreement States' licensing and regulatory programs for milling anu unit t:.iiin ;s. The legal issues here are quite compie:.,
and the various alternative interpretations present cross-cutting policy considerations. For example, a determincuer that the new responsibilitics of the NRC and Agreement States are immediately effective will require prompt commitment of Commission and State resources. Both ques-tions (but especially the quer, tion regarding the timing of Agreement State responsibilities in ongoing source material licensing of milling) defy any unequivocal legal solution.2/ No matter what view is ultimately taken by the Ccmmission, there will be strong criticism from some quarters. Even the Congressional staff members who par-ticipated in the Congressional consideration of the bill have expressed (informally) differing views on the effective date issue.
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y NRC's e cin draft of the tailings bill avoided these problems of interpreta-tion. NRC's own bill provided specifically that no NRC tailings license was required for three years, and specifically deferred imposition of new requirements on Agreement States for three years.
Analysis 1.
Lecal Analysis (a)
Do the States and the Federal Government have concurrent jurisdiction to license mill tailings for three years following enactment of the Mill Tailings Act? 3]
Title II of the Mill Tailings Act (which deals with NRC and Agreement State licensing of mills and tailings) amends the Atomic Energy Act's defini-tion of byproduct material to include mill tailings without qualificatien regarding time. This brings into play the longstanding provisions in the Atomic Energy Act requiring licenses for "by-product materials." Section 208 of the Act provides that all of Title II shall take effect upon enactment unless otherwise provided. Thus, under the Mill Ta:1:ngs Act, the Commission's licensing duties regarding such byproduct material are effective immediately unless other-No section wise provided in another section of that Act.
of the Mill Tailings Act provides specifically for any delay The in NRC's duty to license the new byproduct materials.
section closest in point--secticn 204(h)(1)--appears only to forestall Federal preemption of all State jurisdiction over tailings during the three year interim, and appears not to forestall concurrent NRC-State jurisdiction.
(h)
Are the requirements of new section 274o of the Atomic Energy Act effective immediately with regard to ongoing Agreement State regulation of source materials produced in milling operations? 4/
For a more detailed legal analysis, see the OELD discussion at Appendix A.
3f For a more detailed legal analysis of this issite, see the OELD discussion 4]
at Appendix B, and the analysis of the Arizona Center for Law in the the Public Interest, at Appendix D.
As stated above, section 203 of the Mill Tailings Act makes the Act's provisions effective immediately unless otherwise provided. The Mill Tailings Act adds new requirements for Agreement States in a new section ?74o of the Atomic Energy Act. These new requirements, v.hich apply both to ongoing source material licensing of milling and new by-product material licensing of tailings, include compliance with NRC and EPA health and safety and environmental standards, procedures allowing notice and comment in State rulemaking and opportunity for a public hearing with cross-examination in State licensing, and prepara-tion of an independent written environ = ental analysis in support of licensing.
These new requirements are effective immediately unless they are subject to the three year delay in section 204(h).
While section 274o states that it applies to bcth byproduct material authority and source material authori;y over milling operations, section 204(h) is more narrowly drawn, applying only to Agreement State authoritf "respecting" or "with respect to" byprcduct material. Accordingly it may be argued that the three year delay applies only to Agreement State regulation of section lle(2) byoroduct material resulting from milling operations. This strict and literal reading of the Act would indicate that the three year delay does not cover ongoing source material licensing of milling operations. However, acceptance of this' literal argument would result in more stringent rules applicable to licensing of mills than would be applicable to licensing of tailings in the three year period, despite the fact that the whole focus of the legislation was not on mills but is on hazards arising from tailmgs.
e An argument to the contrary--that notwithstanding the narrow reference to " byproduct material" in section 204(h?--
the Congress intended the three year delay to apply to both State licensing of mills (source material) and State licens-ing of tailings (byprcduct material)--can reasonably be made. This argument would be based on the context and legislative background of the statute, a broad reading of
section 204(h) to include source material licensing in the three year tr.oratorium, the del.y in the availability of grant money to Stat.:s p:.rticipating in the new section 274o program, and the requirement that licensing be consolidated to the maximum extent possible.
Either argument is legally supportable, and the legal question is a close one.
2.
Poliev Imolications (a)
Protecti'on of the Environment s
In SECY-78-48 the Office of Nuclear Material Safety and Safeguards addressed the need for an independent assessment of environmental impacts of uranium mills in Agreement States.
Warning that Agreement States should not continue to license milling without an inde-pendent environmental analysis including impac.ts and alternatives, the Staff stated that "without a recuirement to document this analysis:
(a) it is less likely that the analysis will be of consistently high quality, and (b) it is nearly impossible for there to be meaning-ful participation in the licensing process, by the public and interested Government agencies."
The Commission responded with a Policy Statement dated April 20, 1978 (43 Fed. Reg. 17879-17882 (1978)), in which the NRC offered to assist Agreement States conduct environmental assess-ments in their licensing actions of uranium mills.
The Commission explained:
Our experience is that an environmental review process sinilar to our own where the significant environmental impacts of a licensing action and its alternatives are documented and circulated for public review will be a useful one. It enhances the quality of licensing decisions by making it more certain that evaluation
. of environmental impacts by the regula-tory agency is obj ective and independent and that there is full and effective public exposure of the licensing action....
Acccrdingly, Commission policy has emphasized the need for Agreement State environmental assessment procedures like those called for in section 274o. This policy argues for a Commis-sion position favoring immediate effectiveness of section 274o regarding environmental assessments for ongoing source material licensing of milling.
NRC licensing of tailings during the three-year interim period would, by adding a seccnd licensing review, have some beneficial effect in terms of assuring that, as a minimum, Federal requirements for tailings stabilization and disposal are met.
D 3/
(b)
Imoact on Agreement States -
Clearly the provisions of 274o, whenever applied, will impose new responsibilities on Agreement States involved in the regul'ation of uranium milling or mill tailings. Among other things, such States will have to acquire the capability (and in some States the legal authority under State law) to perform environ-mental analyses and to offer public procedures for rulemaking and licensing. In a State-NRC meeting on the draft generic environmental impact statement on uranium milling held on December 13 and 14,1978 in Colorado Springs, State representatives expressed skepticism about their States' ability to assume th' new burdens of section 274o at any time--but particularly in the coming year or so. Ncv State legislation and regulations involving difficult issues such as land ownership and surety arrangements may have to be written and new State programs may have to be funded. The grant money provided in the Mill Tailings Act for this transition will not be available until FY 19S0.
3/ The Agreement States have provided their views on this matter in a letter dated January 18, 1979 to Chairman Hendrie. attached as Annendiv C.
Thus, as a practical matt; may find it difficult, and impossible, to fully impic s
procedures within the next.
year. The requirement in s independent environmental -
pose less of a problem than a pertaining to procedures for rulemaking actions, since sc:
(with NRC assistance) perfcr If it is determined that th tien 274o apply immediately State scurce Insterial lic
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and a State fails to comply e requirements, the NRC woulc by section 274j to terminate State's agreement pertainin mills and reassert Commis authority over source materic procedure recuires nctice an fer hearing to the State. Also,
mine that they cannet immedi with the hiill Tailings Act an with termination of part of tr' agreement, State legislatures m eliminate. the basic agreement w On the other hand, if it is deter section 274o recuirements for source materidlicensing are de three years, these adverse im avoided. The States would be prepare for the new respcasibin the Commission also assum
.i=:
over tailings, many difficult isst worked cut before the Stat If the Commission views the licensing precedures as effecti,
the burden of performing envire assessments could be lesse mission extending environmental assistance to the States as provu April 20,1975 Policy Statement.
the NRC is currently extending e
review assistance to Agreement States with new mill applications in accordance with the April 20,1978 Policy Statement. The States with new conventional mill applications, Arizona, New Mexico and Colorado, aircady receive NRC assistance with environmental rehews.
'If it is determined that there is concurrent licensing jurisdiction during the three year interim fcllowing enactment of the Mill Tailings Act, the NRC could relieve the States of some and perhaps most of the new responsibilities of section 27lo. That section contains the provision:
"No State shall be required under paragraph (3) (pertaining to the requirements for public procedures and environmental assessments] to conduct proceedings concerning any license or regula-tion which would duplicate proceedings conducted by the Commission.' Thus, to the extent that the Commission in. its byproduct material licensing or regulation includes issues pertinent to the safety and environmental effects of source material processing in the mill and performs the requirements specified in paragraph (3), the States may not need to duplicate such requirement s in their ongoing source material licensing of milling operations. Only minor changes veculd need to be made in curreni NRC licensing practice in order for the States to sub-stantially rely upon NRC actions to dis-charge their responsibilicies under section 274o.
However, the Agreement State program may suffer. Should the Commission exercise immediate licensing authority over tailings, this will likely act as a disincentive for the States to assume this burden by amending the section 274 agreement within thzee years.
During the three years of concurrent jurisdiction.
State regulatory relationships with mill licensees could be disturbed. In order to avoid dual fees and duplication of licensing effort, licensees may attempt to bypass State agencies and deal directly with NRC.
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Further, State officials concerned by tax rates and lower budgets may see little need for a State to assume a function that is per-ceived as.already being perf,ormed adequately by the Commission. Some States may so resent Federal interference that they would seek to return non-energy source material authority to the Commission.
(c)
Imoact on Industry The uranium milling industry may be faced with delays if the licensing procedures of section 274o are considered effective immediately, or if the NRC is required to issue specific tailing licenses in the three year interim period.
Nonetheless, if the States comply with section 274o by using the consulting services of NRC for the independent environmental assess-ment and the Commission makes necessary resources available, the impact to the industry would be limited to c.n approximate si: -
month delay in the isnderson Project in Arizona. If a complete environmental impact statement would be required (as would be the case if NRC were to license mill tailings in the three-year interim) t six-month delay in the Bokum Project in New hienico and a twelve-month delay in the Anderson project would be expected. Of course, the industry will likely view dual NRC/ State licering licensing jurisdiction as an unnecessary waste of resources.
(d)
Imonet on the Commission If it is determined that the NRC's duty to license mill tailings now defined as licensable by-product material becomes effective immediately, the' Commission will have to act soon to regulate all those persons owning, possessing, or otherwise using such byproduct material. This will cause no difficulty in non-agreement States, where the Commission has asserted
. control over the tailings through the source material milling license. An amendment to the regulations to authorize NRC milling licensees to also own, use, and possess the tailings would avoid any technical violations of the Atomic Energy Act. For Agreement States the problem is not so simple. Alt hough the Commission has a role in Agreement State mill licensing through its preparation of environmental analyses for States, there may be some acticns involvitig tailings that would be unacceptable under Commis-sion licensing standards. In particular, this may be a problem it. the renewal of existing mill licenses whose c:nditions may be less stringent than more recent license requirements.
In the next three years the Commission will be called upon to review 20 license appli-ca' ions for new mills located in Agreement States if NRC's duty to license is effective immediately. In addition - -1111 existing mills in Agreement States, since they involve generaticn of tailings, would require Commission licensing. The Staff estimates that this effert would take approximately 6.3 additional man years and $850,000 in addi-ticnal funding per year, based on a planned sequential approach to the licensing. If tailings from solution mining are included (and this appears to be the better legal view of the.1i11 Tailings Act), about 1 man year and $100,000 per year would be needed in addition to the above. The Government would recoup a nortion of these costs in fees charged for this licensing.
Further, in order to comply wit.h the new require-ments of the Mill Tailings Act, whenever it beccmes effective, the Office of State Programs needs increased staffing. SP estimates that it requires three additional man years per year to negenate new agreements, develop model legislation anci regulations, review Agreement State programs, provide training for Agreement State staff, and
. administer grants pursuant to the new legisla-tion. Section 207 of the Mili Tailings Act authorizes $500,000 for grants to aid in the development of Agreement State regulatory pro-grams to implement the Act. This grant funding, however, has yet to be incorporated in the Commission FY 1980 budget request.
Alternatives:
The Basic Policy Decisions 1.
The Commission could read the Mill Tailings Act as deferring fo:- three years both the Agreement State licensing procedure requirements for uranium milling and NRC licensing jurisdiction over tailings.
This would entail some litigative risks for the Com-mission (and Agreement States that followed the Commission position), and be less protective of the environment, but would avoid'the other substan-tial Agreement State, Commission and industry impacts discussed above. Since tcilings disposal poses long-term, as opposed to immediate hazards, the diminishment of environm:ntal protection would depend in large part on whether or not unacceptable and irreparable tailings piles would appear in the three year period absent NRC licensing or indepen-dent State environmental assessments. Because almc.at all new Agreement State milling applications already receive NRC environmental review pursuant to the April 20,1978 Policy Statement, it is not very likely that many such tailings piles would appear.
2.
The Commission could read the Mill Tailings Act as deferring for three years the requirements pertaining to Agreement State licensing procedures for uranium milling, but as providing for immediate Commission licensing of tailings. This would likely be as protective of the environment as alternative 3 and more than alternative 1, since NRC licensing procedures would substantially track the pro-cedures that the States would follow if section 274o were immediately effective. This would also ease the burden on Agreement States. However, as discussed above, there would be delays associated with NRC licensing of pending applications in Agreement States, and a commitment of resources
w
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l2) (jf [y Q
. (b)
NRC could issue specific tailings licenses in Agreement States. Each tailings license would need to be supported by an NRC site specific environmental impact statement. In the three-year period about 20 new uranium mills would be involved. NRC itself would alter its licens-ing procedure.s so as to comply with section 274o requirements to provide an opportunity for a hearing (only minor changes would be required to NRC procedures). The Agreement States, under scetion 274o, would not need to duplicate the NRC proceedings in exercising their own licensing authority over uranium milling. This subalternative may reduce the litigative risks, but increases the NRC resources requirements as compared to subalternative 5(a). The resource estimates are given on page 10 and assume NRC site specific environmental impact statements.
The burden in Agreement States would be about the same. Both subalternatives would have about the same impact on the industry.
Both alternatives (a) and (b) focus on proposed new mills in Agreement States.
For mills already licensed by Agreement States, NRC could issue a general license to own and possess the tailings, subject to any necessary NRC remedial action orders. The general license would expire when the State license expires or comes up for renewal er when the Agreement is amended to include tailings. At this time NRC could follow the procedures of alternative (a) or (b). All inactive milling sites should be covered by the DOE reiaedial action program in Title I of the Mill Tailings Act.
Conclusion _
In suiamary, alternative 1 (defer both section 274o Agree-ment State milling licensing procedures and NRC tailings licensing jurisciiction) and alternative 3 (defer NRC licensing jurixiiction but net State licensing precuiur w present substantial litigative risks, since the legal argu-ment for deferral of NRC licensing jurisdiction is not, en
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M-lbb'
. Alco, an Attorney General's cpinion ciculu take tir.:r..
t'hi'.
a request ivr an opiniun whc pending, the Commir: ion won; not be in a position f.c effer any firm vieves en the issuer.,,
and Str.tes h1ve indicated tc the Staff that advice en th : t w iccues is urgendy n redea frcm the Commiwicn.
Lc;islation Also, whichever decision is made by the Commission, the question arises whether clarifying legislation should be sought. Legislation could, of course, resolve the legal questions by a rather simple amendment to the Act. On the other hand, there is some danger that even the most simple amendatory legislatien could provoke a wide Congressional re-enair.ation of the whole A.ct with unc:r-tnin consequ-nces.
Recommendation: The Commission should adopt alternatives 2 and 5(b)--
an interpretation of the Mill Tailings Act that would defer for three years imposition of procedural and impact assess-ment requirements in Agreement States, but would provide for immediate specific licensing of tailings by the NRC in Agreement States. A Policy Statement and proposed rule which reflect this decision will be prepared for Commission consideration by OELD. Provided that an Attorney General's opinion could be obtained on an expedited basis, the Commission should request such an opinion on the legal interpretation of these two issues.
Coordination:
OGC, NMSS, and SP concur in OELD's conclusion that the Commission should interpret the Mill Tailings Act as provid-ing immediate NRC licensing authorit r over mill tailings in Agreement States but as deferring for three years the pro-cedural and impact assessment requirements on the States.
OGC's views on the advisability of seeking an Attorney General's opinion are as follows:
"OGC is opposed to the idea of seeking an Attorney Generai's opinivn Gn thcLe quest 1Cns of interpret.itiCn.
Situations occasionally do arise -- for example, whe: an issue affects many agencies or relationships with the executive branch -- when it is appropriate for an indepen-
^
dent regulatory agency.to seek formal advice from the
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Attorney General. However, this is not such a case.
Rather, the questions presented are technical and within NRC's areas of special expertise. The Department of Justice (probably the Office of Legal Counsel) has no expertise in this area'.
And where, as in this case, alternative interpretatiens are possible, NRC has some latitude to choose the interpretation it prefers on poli.cy grounds. But the Attorney General, if asked, may well -
adopt a different interpretation anci, if that happens, as a practical matter NRC's freedom to choose would be diminished. That is exactly what happened the last time we sought formal advice from the Justice Department in c somewhat similar situatien (involving an interpretation of the Price-Anderson legislation). "
SP sees substantial advantages to requesting a formal or
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informal Attorney General's opinion, although SP would prefer a legislative resolution of the matter, and NMSS does not think that an opinion should be requested for the reasons stated on pages 16 and 17 of this paper.
SP also recommends that the Commission seek and support legislation that would make it clear that the 274o State procedural and impact assessment requirements are deferred for three years (i.e., legislative adoption of the Commis-sion's view). NMSS is concerned that a request for further legislation could reopen the entire issue without resolving the problem. SP would also seek legislation that would defer Commission licensing j urisdiction over t_ailings for three years in Agreement States. This would be in accord with the NRC original tailings legislative proposal. NMSS prefers to proceed with the program of licensing of tail-ings without any further legislative changes. This Office (OELD) has no legal objection to requesting legisla-tion on either point, but is also concerned that a request for legislation could prove to be highly contentious. Wit h respect to legislation to defer NRC jurisdiction over tail-ings. OELD notes that once the NRC licensing program is underway, it may prove difficult to convince the Congress to reverse directions. OGC views on legislation follow:
' C ~.~
net hai: eve tS: N?C snould seep < '
.... t.peiling out :ne ccacianun, we iioc n,-
reached. In the first place, cur informal discussicus with committee c:affers indica:e : hat such clarifying legisla ica wculd have li::le chance cf enactmen: in the 9cth Congress, at least as independent legislatien.
The key congressional cc=mit:ees which deal: with this legislaticn last year are unlike1 7 :o want to revisi:
a contenticus issue so seen after enac:ing the statute; and if the " legislative fix is delayed fer a year or two, its practical i=plications would be smali. Fur her,
if such proposed clarifying legisla:icn were tacked en to NRC's au:hcrica:icn bill, it could injec: a highly cententicus issue into a bill that we wan: to see enacted secner rather than later. There appears :o be significant opposition :o the idea that the new procedural cbliga:icns for the Sta:es are deferred' for three years. Apart frcm these pragmatic censiderations, i: seems to us that, given our positions en the questions of interpre:ation NRC's in:erest in such clarifying legisla: ion is only indirec:
at best. Those Sta:cs tha: want to make sure of a three-year delay in their new obligations are free to seek clarify-i.~; legislation if they think they need it. "
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Gs/'. Skr v
Howard K. Shapar T
Executive Legal Dit ector Attachments:
Appendix A - Discussion of concurrent Federal-State jurisdiction.
Appendix B - Discussion of effectiveness of 274o requirements.
Appendix C - Agreement State letter to Chairman Hendrie discussing Mill Tailings Act.
Appendix D - Discussion of effectiveness of 274o requirements by Arizona Center icr Law in the Public Interest.
O e
Commissioners' comments should be provided directly to the Office of the Secretary by c.o.b. Thursday, February 15, 1979.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT February 9,1979, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time 'for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
DISTRIBUTION Commissioners Commission Staff Offices Exec Dir for Operations Regional Offices ACRS Secretariat
0 e
9 APPENDIX A
s Appendix A WHETHER THE STATES AND THE FEDERAL GOVERNMENT HAVE CONCURRENT JURISDICTIONTO REGULATE MILL TAILINGS (SECTION lle(2) BYPRODUCT MATERIAL) FOR THE THREE YEARS FOLL': WING ENACTMENT OF THE URANIUM MILL TAILINGS RADIATION CONTROL ACT Public Law 95-604, the Uranium Mill Tailings Radiation Control Act of 1978, amends section lle of the Atomic Energy Act of 1954, adding a new sectica 11e(2) to make tailings or wastes prcduced in milling operations licensable as byproduct material.
Heretofore, the direct authority of the NRC and the Agreement States to regulate the milling process (and thus tailings) under the Atomic Energy Act was limited to the regulation of source material produced in milling.
In addition to expanding the definitien of byproduct material to include mill tailings, the Mill Tailings Act gave NRC, the Environmental Protec-tion Agency, and Agreement States new responsibilities in the regulation and control of tailings. The timing of these new responsibilities, however, is less than clear for the period of three years following the enactment of the Mill Tailings Act.
During this three.-year period, certain pro-visions of the Mill Tailings Act will not yet be in effect, other require-ments will be applicable, and scme pre-existing authority will continue.
This leads to the question: will the States and the Federal Government have concurrent jurisdiction to regulate mill tailings (as section lle(2) byproduct material) for the three years following enactment of the Mill e
Tailings Act?l/
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Statutory Provisiens:
State Authority Over Tailings Continues Unchanged for Three Years, During Which Time the NRC Has Licensing Responsibility Regarding the Tailings.
NRC Authority Is Generally Effective Immediately.
The Mill Tailings Act amends the Atomic Energy Act's definition of bypro.
duct material to include mill tailings without qualification regarding time. Thus, under section 208 of the Mill Tailings Act, the Commis-sion's new duties regarding such byproduct material are effective immediately unless otherwise provided in another section of the Act.
1/ Because the issue of timing in the Mill Tailincs Act with recard to
~~ Agreement State source material licensing of milling operatiens is discussed at length in another note, this discussion will be limited to the timing of byproduct material licensing and regulation.
Appendix A
- (2) An Agreement entered into with any State as permitted under section 274 of the Atcmic Energy Act of 1954 with respect to byproduct material as defined in section lle(2) of such Act, may be entered into at any time after the date of the enactment of this Act but no such agreement may take effect before the date three years after the date of enactment of this Act.
An Analysis: The Legislation and Case Law Mandate a Canclusion that There is Concurrent State and Federal Jurisdiction for Three Years, and in Case of Conflict, Federal Requirements Prevail.
The discussion of NRC's responsibilities under the Mill Tailings Act set forth above leads to the conclusion that NRC was given regulatory and licensing authority with respect to section lle(2) byproduct material withost qualification effective immediately upon enactment of the Mill Tatiings Act.
At the same time, section 204(h)(1) of that Act makes it clear that for three years after enactment, "any State may exercise any authority under State law respecting) byproduct material, as defined inope section11e(2)." Thus section 204(h Federal preemptien of all State jurisdiction over tailings during the three-year interim. Accordingly, the State authority may continue on a concurrent basis with Ccmmission regulation of tailings now defined as byproduct material as long as the State requirements do not conflict with or frustrate the Federal.
Neither the Statutes nor Case Law Succort an Inference that the Mill Tailincs Act Allows State Preemotion of NRC Jurisdiction Over Tailings During tne Three-Year Interim.1/
Neither the Mill Tailings Act nor case law interpreting the Atomic Energy Act support an inference that section 204(h) of the Mill Tailings Act would permit State preemption of Commission jurisdiction over tailings now defined as section lle(2) byproouct material.
3] The basis of the doctrine of preemption is the Supremacy Clause of the Constitution, which essentially provides that when Federal and State laws conflict, the Federal law prevails.
See, e.g., Perez v. 'Camobell,
402 U.S. 637 (1971).
Although it is difficult to conceive how tne preemption doctrine could be used to infer State preemption of Federal jurisdiction, one court stated in dicta, " State law cannot preemot tne federal unless the federal act itself sanctions the application of state standards," thus implying that State preemption of Federal juris-diction is possible given a Federal statute so specifying.
United States v. Hall, 543 F.2d 1229,1232 (1976), cert. den. 429 U.S. 1075.
Sucn " State preemption" was not found in this case (which involved wiretaps in a criminal investigation), nor in any other case of which Moreover, any such State preemption would be limited we are aware.
to the specific terms of the Federal withdrawal of authority.
-5 Moreover, the-larger context of Federal nuclear regulation argues against the concept that incorporation of State authority in the Mill Tailings Act would preempt concurrent NRC jurisdiction in any ci cumstances or to any degree.
As discussed above, the Mill Tailings Act gives the Commis-sion primary respcnsibility for mill tailings regulation. This leadership role for the NRC generally characterizes Federal and State relationships in all aspects nuclear licensing.
Accordingly, in Northern States Power Co. v. Minnesota, 447 F.2d 1143 (8th Cir.
1971), the leading case on preemption in the nuclear regelatory area, the court found the pervasiveness of the Federal regulatory scheme sufficient to infer that absent some clear Federal abdication of authority over nuclear regulation, the Federal Government has exclusive authority under the doctrine of preemption to regulate radiation hazards associated with byproduct material, source material, and special nuclear material; and with production and utilization facili. ties.
Thus, the court in Northern States Power found it--
abundantly clear that the Congress intended federal occupancy of regulation over all radiation hazards except where jurisdiction was expressly ceded to the states,....
447 P.2d at 1150.
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(Emphasis added.)
Although section 204(h)' preserves State authority for three years, it in no way expressly cedes Commission jurisdiction over tailings to the.
States. To the contrary, the newly amended sections 81, 82 and 84 of the Atomic Energy Act require immediate Ccmmission licensing of byproduct material, including tailings.
Thus, section 204(h) of the Mill Tailings Act allows concurrent State and Federal jurisdiction for the three-year period following enactment of the Mill Tailings Act.
Interpretations of Other Federal Statutes Incorocratino State Law Acoly State Law to the Extent it is Consistent witn the Federal If there is concurrent State and Federal jurisdiction, the question arises whether the Federal or State regulatory system would prevail in cases of conflict. Would section 204(h) giv'e preeminence to the State system in cases ofn conflict?
In circumstances analogous to the situation at hand, a recent case has applied the State law in a manner consistent with the overall Federal statutory scheme.
In American Horse Protection Association
- v. Deccetment of Interior, 551 F.2d 432 (D.C. Cir.1977), tne U.S. Cour:
of Appeals for the' District of Columbia interpreted section 5 of the
. Wild Free-Roaming Horses and Burros Act, which states:
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G ee n.
. =
APPENDIX 8
Appendix B WEN THE REQUIRE?iENTS OF SECTION 27do CF THE ATCMIC ENERGY ACT BECCME EFFECTIVE WITH REGARD TO CMGOING AGREEMENT STATE REGULA-TION OF S0JRCE MATERIALS PRCCUCED IN MILLING The Problem:
A Regulatory Gap Regarding Radicactive Tailings.
Public Law 95-604, the Uranium Mill Tailings Radiatien Control Act of 1978 (Mill Tailings Act)3 will effect a significant cnange in the legal basis for regulation of uranium milling wastes.
Heretofore, the authority of the NRC
? id hence the Agreement States to regulate the milling process under the
- cmic Energy Act of 1954, as amended, was limited to the regulation of
'urce material produced in milling.
Tailings have been regulated as ancillary
- v. the source material license. When the milling cperations ceased, so did the production of source materials.
NRC or Agreement State regulatory jurfs-diction ceased with the termination of the source material license.
(If an Agreement State had exercised any control over mill wastes after tecninaticn of the source material license, it would have done so under authority unre-lated to the Atomic Energy Act.) The radioactive tailings, however, persist long after milling operaticns have ended, creating a health hazard.
The Solution: A Redefinition of " Byproduct Material" in the Atomic Energy Act to Include Mill Tailings.
Title II of the Mill Tailings Act amends section 11e of the Atcmic Energy Act, adding a new section lle(2) to make tailings or wastes produced by milling operations licensable as byproduct materials even after the
~~
milling operations end. To enable Agreement States to participate in this new licensing program, section 204 of the Mill Tailings Act a ends the Agreement State provisions in the Atomic Energy Act.
Among the amendments in section 204 is a new section 274o of the Atomic Energy Act.
Section 274o applies to "the licensing ar.d regulation of byproduct material [resulting from milling operations] as defined in section lle(2) of this Act, or of any activity which results in the pro-ductOn of byproduct material as defined in section lle(2) under an agresent entered into pursuant to [section 274b, pertaining to materials licensable by Agreement States]." Section 274b provides that an agreement may be entered into with respect to (1) byproduct materials resulting frem tne production of special nuclear materials, (2) byproduct materials re-sulting from milling operaticns, (3) source materials, and (4) special nuclear materials in quantities insufficient to form a critical mass.
Section 274o(1) requires that Agreement States comply with new section 83b of the Atomic Energy Act, which provides for government ownershic of byproduct material and land upon termination of a source material cr byproduct material license of milling operations.
Section 202 of the Mill Tailings Act makes section 83 effective three years after the enactment of the Mill Tailings Act.
Oee m M e so O
Act," but such agreement may not take effect until three years after the enactment of the Mill Tailings Act.
An Arcument:
Section 204(h) Applies Only to Requirements in Section 274o Regarding State Licensing of Byproduct Materials and Thus Does Not Affect tha Requirements in Section 2740 that Also Pertains to Source Materials, Licensing and Regulation of Milling Operations.
As set forth above, section 274o applies to the licensing and regulation of mill tailings defined as section 11e(2) byproduct materia: and of "any activity which results in the production of" such mill tailings when the licensing and regulation is carried on under Agreement State authority.
Agreement State authority includes regulation of milling through the source materials prodaced; milling is an activity which results in the production of mill ta' lings.
Thus existing Agreement State authority to regulate milling *,hrough source materials licensing, as well as the new section lle(2) oyproduct licensing authority, is covered by section 274o.
Unlike s ection 274o, which applies to Agreement State " licensing and regulation of byproduct material, as defined in section lle(2)..., or of any activity which results in the oroduc* ion of byoroduct materiaIas defined in section lle(2," the delaying provision in section 204(h) of the Mill Tailings Act applies only to new and pre-existing State authority "respecting [or with respect to] byproduct material as defined in section lle(2)." Section 274o states that it applies to both byproduct mate *ial authority and source material authority over milling operations; section 204(h) does not.
Thus, section 204(h) is clearh more narrowly drawn.
Authority "respecting" or "with respect to" byproduct material refers to authority over tailings alone. Accordingly, the three-year delay applies only to Agreement States' regulation of section 11e(2) byproduct material resulting from milling operations.
Therefore, no provision of the Mill Tailings Act delays effectiveness of the requir.ements of section 274o as they apply to source material licensing and regulation of milling operations.
Pursuant to section 208 of the Mill Tailings Act, section 2740's requirements regarding Agreement State regu-lation of milling through source materials are effective on the date of enactment of the Mill Tailings Act.
81, 82, 84 and lle(2) of the Atemic Energy Act, Moreover, because sections as added by the Miil Tailings Act, give the NRC immediate licensing authcrity
,5-Because this legislation was among the bills passed in the hectic final days of the 95th Congress, its progress through the Congress was less orderly than is usually the case.
The absence of a Senate committee report is but one example of this.
Therefore it is likely that the more explicit effective date provisions in section 208 of the Mill Tailings Act were inadvertently omitted from the bill ultimately enacted.
If the Congress had intended to reverse the earlier, clearer, version of the bill, such a reversal would be explained somewhere in the legislative history.
As will be shown below in a-discussion of the legislative history, this is not the case.
Accordingly, it is reasonable to conclude that the Congress intended that the States have considerable flexibility in applying the Section 274o requirements to ongoing source material regulation of milling operations during the three to five years immediately following enactment of the Mill Tailings Act.
Furthe.. an argument could bn madt-. that the overall context of the section 274o requirements indicates that none of the new requirements for Agreement States are applicable until three years from the date of enactment of the Mill Tailings Act.
Taken from a broad perspective, the new require-ments for Agreement States in section 2740 generally apply to the new program of licensing byproduct material as defined in Section 11e(2).
Section 204(h) of the Mill Tailings Act provides that no such Agreement State program regulating section lle(2) byproduct material may take effect until three years after enactm'.ent of the Mill Tailings Act.
From this viewpoint, the requirements in section 2740 (largely intended to attach with the new Agreement State byproduct material licensing) should not apply until three years hencic as well.
Similarly, the overall context of the Mill Tailings Act itself focuses on mill tailings, not the milling process. The primary reason for the section 274o requirements is to insure proper disposition and maintenance of the tailings. Thus by delaying the requirements of section 274o with regard to tailings now licensable as byproduct material, the Congress allowed in Agreement States a three-year delay in the resolution of the key problem adressed in the legislation.
If the Congress had intended that Agreement States regulate tailings pursuant to Mill Tailings Act requirements immediately, it would have simp'/ provided that section 274o requirements apply immediately to Agreement State regulations of tailings.
Immediate application of 274o requirements to ongoing Agreement State regulation of milling operations would apply a higher level of Congressional concern with milling operations than with tail-ings disposition, contrary to the whole focus of the legislation which was on tailings.
If immediate application of the 2740 requirements to State mill licenses were to affect State licensing of tailings as well, this would be more in accord with the principal thrust of the legisla-tion to protect the public and environmer.t from tailings, but would through indirect means acccmplish exaccly what the Congress chose not to de, namely, affect State licensing of tailings in the three-year period.
This can be read to mean that the status quo will continue for.three years, after which time the NRC will license the milling operations if the Agree-ment States choose not to follow the requirements of section 274 pertaining to milling and byproduct materials.
The implication is that all licen' sing o f milling oparations--Agreement State source material licensing of mills as well as State regulation of byproduct materials based on State laws--will remain unchanged for three years. After that period, if a State has not entered into a new byproduct material agree-ment, the NRC will take over both byproduct material and source material licensing of the mills.
Section 207 of tihe Mill Tailings Act also'suppoIts the conclusion that the requirements of section 274o were not intended to apply to source material licensing until. three years after enactment of the Act.
Section 207 authorizes $500,000 in grants for fiscal year 1980 "to aid in the development of State regulatory programs' under... section [274] which implement the provisions of this Act."
It hardly makes sense for the Congress to recognize that it will take time and money for Agreement States to gear up to meet section 274o requirements, then make the requirements effective before any time or money could be put to use.
Thus the only way to make section 207 meaningful is to delay any imple-mentation of the requirements in section 274 (especially those in 274o, which impose new and burdensome government ownership requirements; health safety and environmental standards; and notice and hearing and environmental analysis responsibilities) for a three-year period in which the Agreement States can use the grant money to develop the capability to assume the new duties.
.N Further evidence of an intent to delay the new requirements of section 274 for both source material and byproduct material licensing of milling operations can be found in section 209 of the Mill Tailings Act.
Section 209 provides that--
[t]he Muclear Regulatory Commission shall consolidate, to the maximum extent practicable, licenses and ifcensing-procedures under amendments made by this title with licenses and licensing procedures under other autho-rities contained in the Atomic Energy Act of 1954.
This consolidation is mandatory; yet States that currently regulate both source material under their Agreement State authority and by-product material under State law would likely find the new section 2740 requirements an impediment to consolidation during the three-year interim.
Thus it would thwart section 209 consolidation goals to apply the section 274o requirements immediately to source material licensing.
This would cause duplication of source material and byproduct material licensing, in contravention of the clear purpose of section 209.
9-The contentions that the statute should be viewed from the broad per-spective and that the language of section 274o of the Atomic Energy Act cannot be compared with that of section 204(h) of the Mill Tailings Act avoid the issue.
The key issue is the interrelationship between the requirements of section 274o and the timing scheme in section 204(h).
The fact that they are not iCentical -- that one includes source material licensing by Agreement States and the other does not -- makes it apparent that the source material requirements in section 274o are unaffected by the three year delay in section 204(h).
It can be argueo that such a comparison of two provisions in the Mill Tailings Act is in fact a means of viewing the statute frca the broad perspective.
Moreover, this comp > ison establishes that section 204(h) can..ot be read to include Agreemr.nt State source material licensing in the three year moratori um.
Seccion 204(h)(1) applies to "any authority under State law respecting byproduct material, as defined in section lle(2)," not to "the licensing and regulation of byproduct material as defined in secticn lle(2)..., or_ of any activity wnich resulu in the production of by-product material as defined in section lle(2)," like section 274o.
" State law respecting byproduct material" means State law governing tailings, not source mater.f al authority over milling operations.
There is no justification for a broader reading either in the statute or its legis-ative history.
Similarly, there is no evidence that the description of 204(h) in House Report 95-1480, Pt 2 applies to anything more than regulation of tailings.
The legislative history in question provides, " Subsection (h) continues-for 3 years State control over these tailines."
It can easily be read to mean that the status quo regarding State regulation of section lle(7.)
byproduct material will continue for three years, after which time the h"lC alone will license the byproriuct raterial aspects.of the mills if the Agreement States choose not to assume the new section lle(2) byproduct material licensing responsibilities.
It is worth noting that this reading of the legislative history is consonant with the statute itsel f.
Further, section 207 of the Mill Tailings Act supports oniv the conclusion that the requirements of section 274o were not intended to apply to the new Agreement States section lle(2) byproduct material licensing procram for three years.
It does not support the conclusion that the effectiveness of section 274o requirements regarding Agreement States regulation of source macerials in milling should be delayed for thrca years.
The Congress authorized the monev for fiscal year 1980, the earliest time possible given the realities -of the availability of Federal funds.
These arants will be available to help States comply with the section 274o regtbements for source material licensing before the new see: ion lle(2) byproduct material lic.ensing orogram must be on line.
11 -
State standards for licensing uranium mill tailings and uranium milling must to the extent practicable be equivalent to, or exceed, those of the Commission.
In additier., licenses issued by States must require that, upon termination of such licenses, mill tailings disposal sites will be trans-ferred without cost to permanent Federal cust;Jy. State licensing procedures are required to include provisions ftr public participation and environmental reviews.!/
Similarly unenlightening is the description of section I64(h) of the Mill Tailings Ar.t, discussed above:
Subsection (h) continues for 3 year,s State control over these tailings. After that period, if a State has not entered into an agreement, the NRC will license the mills.6]
The other committee report, H.R. Rep. 95-1480, Pt 1 (1978), discusses a bill that bears less resemblance to that finally passed. Although the key language of section 274o (concerning its applicability) is like that of the final version, this report's version of the bill has no section 204(h). According to this report, the three year delay for State ifcensing of mill tailings as byproduct materials appears in sections 208(b) and (c),
sections that do not appear in the bill as passed.
This report states that section 2740--
requires that, following 3 years af ter enactment of the act, State licensing standards for uranium mill tailings and uranium milling must to the extent practicable be equivalent to, or excead those of the Commission....
3 State licensing proced ees are required to include pro-visions for public participation and environmental review.Z/
The report':: explanation of the three year delay is neither illu iinating nor relevant to the tining problem under discussion, since it discusses a provision not in the f%al legislation.
Fortions of this earlier pro-vision, however, are discussed above.
jf H.R. Rep. 95-1480, Pt 2 at 45 (1978).
7/
H.R. Rep. 95-1480, Pt 1 at 21 (1978).
.em>
e
13 -
Summary:
Either Position Is Legally Supportable To fill the regulatory gap over uranium mill tailings left over after the milling operations cease, the Congress amended the Atemic Encrgy Act to make tailings or wastes produced by milling operations licensable as byproduct materials even after the milling operations end. A new section 274o of the Atomic Energy Act adds new requirements for Agreement States applicable both to licensing source materials or to the new authority to license tailings as byproduct material. Although it is clear that the Mill Tailings Act delays the effectiveness of State authority to license tailings as byproduct material until three years after enactment of the Act, it is not clear whether the delay in effectiveness of certain requirements of the Act applies to ongoing Agreement State regulation of source material.
Either position is legally supportable. The first argument, that a literal interpretation requires immediate effectiveness of 274o require-ments as they apply to ongoing source material licensing by Agreement States, finds support in the " plain meaning" rule. The second argument, that the context and legislative intent of the Act mandate a three-year delay, finds support in the statute and its background.
?-
ed O
O
e 4
O APPENDIX C e
),. c '
Appendix C
~/..,.., h, s..
3 CONFERENCE OF RADIA770N CONTROL PROGRAM DIRECTORS, Ib
' I \\1,,[
7t7 Delaware Street S.E., Minneapolis, Minnesota 55440
' fr. '
(612) 296-5323 Januar/ 10,1979 Chai=an Joseph IIcndrio U.S. Nuclear Reg 21sto:/ Cc =ission
'4ashington, D.C.
2C555 e-
Dear Cha1=an IIendrie:
Pablic Law 95-604 enacted !!ovember 3,1978, has several sections in Title II which are of the ut= cst concern to uranium-producing Agreement and !!cn-Agreement S'ates.
.eM Recently members of cur Conference and other state regalator/
representatives met in Denver. Colorado to discuss the implications, i pacts and pessible recer:nnnri,tiens to the Cerrnission regarding ir:plementation of the previsiens of Title II.
The crcup fbily realized the confusien which exists due to the situation surrcunding final passage of this bill.
It is in the spirit of cooperation and proper imple=en*atien of Congress' intent that we are pmvidir4 input directly to you.
Cf major concern to the regalato:/ programn in uranium-producirg states is the timely ir:ple=entation of the law with particular regard to the practicalities of the :.atter. Cengress' intent 4
in the past and clearly expressed in Title II is a mandate for state participation in nuclear regalation.
Due to situations beyond the centr:1 of the respec'ive staten, authorizing legis-lation r:nst bc enacted for land and preper*y transfers, the rec;uiring anti acr? tiring of financini surety arrange =enta, and precedure requirementa for public particicatien. Additionally URC staff r=ust develen portiens of the medel Su. gested State Regalation for Radiation Ccat=1 so that the states will have the opmrtunity to adept consistent ragulations inich mee* the require =ents of federal law.
Followine; state 1cc:11 authoricatien, recula tiens must be adep*Ad and placed into effect in accord with due precens within the respective jurirdictione including hearing :.
Staffing and, training can be donc concurrently provided funds are availabic Annandiv C
.g '*
Chainnan Joseph liar.dris Page 3 Jamar / 18,1979 Should ydu require additional information or assistance during the Conrd.ssion's deliberations on this matter, please advise.
Sincerely,
((
't v b et g
I4s. Alice T. Dole::al, Chairman Conference of Radiation Control Program Directors AD/AJH:yrw cc: Robert G. Ryan, Director NRC Office of State Programs
<-!J Etecutive Board (RCPD) 9 e
9
Sect ion ?O! identi f fen the new det init ton of t yproduct waterial shich now f.icjudes tallinnn and reniducs from uranium or thoritu.i ore processing.
Thic section became effective on Movember 8,1978, and in ennte>:t with the rent of the Atomic 1:nergy Act Cives the URC authority over tailings, etc.
as of November 8, 1978.
Section 202 defines requirementn for the licennec to decontaminate, decom-
~
mincion, reclaim the mill site and trannfer cunership to the neate or federal co.crnment the taf]fng: and residucs.
Questiens arining here related to the it. ability of states to accept lands or property without original ounct ecmpensation.
This item exists primarily with cr.inting eftes and not with neu milin to be licensed at a later date.
11:is cection of the law is inconcistent as it states that certain matters chall be addressed upon rencval or terminatlhn'"and 'from the body of this section tbc effcetive date might be assumed to bc November 8, 1978. IIoucver, the stated effective date in Section 202(b) is clearly, November 8,1981.
Section 203 provides authorization for the URC and the Acreccent States to estchlinh financial surety arrdngements under their rulcu and regulations for long-tcrn nonitoring and maintenance of caflings diuponal locations.
There are two questionn rafoed here.
One, the ci fcetive date, due to the lack of a stated cue within the scetion, is November 8, 1978, in accord with Section 208.
llovcver, the requirements on the. licensee to provide same is November 8, 1981.
This is definitely fuconniscent and adds confusion to the inter-pretation and imp 3cmentation of the inw by regulation.
Secondly, some
,j Agreement States do not have the current authority to require or acquire such funds, particularly^vhere there is also needed'an"a'uthority to acquire the lands and property in the first p3sec.
It would appear reasonnb]c that for proper impicmentation of the basic requirements of the law (95-604, Title II) that both Sections 202 and 203 become effective on the same date and duc to the requirement for sta te authorir.ation that this date he Novenber 8,1981.
Otherwise NRC might be required to acquire the financial arrangements and the lands uhile the state regulate the operation which is poor regulatory practice.
Section 204 provides the requirement for Agreement Stato programs.
Of particular note and considerable discussion were the new requirements under Section 274(o) of the Atomic Energy Act of 1954, as amended.
The require-ments include ec pliance with the nuu acetions 83, 84 and 275, public par-ticipation in state licennin and rule making preceduren, and the preparation o
and diser thution by the state of an envirormental assescment.
Additionally, there is,a requirement to i ransfer the,, total _ amount.of_ thn, funds. collected by the std~ts for reclamation, and long-tcrn monitoring and natutenance to the federal government, if the land is transferred to the (cdcral governecnt.
This sectimt staten ((h)(1) and (2)) that the Agreement States have authority over neuly defined byproduct r.aterial involved with uranium or thorium ore processing until Movember 8,1981, and that specif f e at,recuents that stl,-
,i pulate authority over the nce definition of byproduct material cannot ta4e
(
effcet until November 8,1981 e
Pace 5 All of the a :nvc nat *..n n involve due t toress under t he apprcpriate ler.sl juri:Jict!cun with public input: and hearinnn.
The above cencern are rece=~endent to be t rancm!tte r! to the Cen,t=sinn at the earliert pennible Line, prefer. ably durinp. the vech of January 15, 1979, as the Car clanien vill be cone.!derir.r. thf s m,t ter in the. cry near future.
Copfe: of this report and a ur.: e ted let tn r to the comissien are being sent to the Executive T. card ec-hert o f ' -e con fc.rence to expedite its approval.
It is also cuccented 1y the st.,te participants of this aceting that their C,cngrescienal delecatiens he inferred of the :: arer,' cencerns and ask for Cetigreenional nupport and exprenn!nn thereof to the Cer.nsion.
.< U AJII: bjv l-12-79
f e
9 APPENDIX D
Appenatx U Erl2Ona CEDIEP for law in the pt.n,y;C In i.E.,em-}.
n n
P.O. Ecx 2783. Pncenix, Anzena 8 SCC 2 602 252-4904 Scard of Direc cts Legal Direc:ct Bruce Meyersen Alice L Bencheim William C. Cancy, Jr.
January 23, 1979 Paul F. Eckstein Hertert L E!y Wiiiiam H. Gecding Ricnard L Green Joseph M. Hendrie, Chair =an Larry Hammond CcI=issioners John Ahearn Mark 1. Harnson P e t e '" ^'
- B
- ad #c *-d I. Harrisen Levy Victor Gilinsity David Lurie Stanley J. Marks Richard T. Kennedy Joseph E. McGarry Nuclear Regulatory CC==issicn Ruth McGreger 1717 H.
- Street, N.W.
Beatrice Moutten h.ashington, D. C.
205s5 van O'Steen Willard Pectick Ancrew Silverman Re:
Acplication of the precedural recuire=ents of Ted F.Wamer 42 U.S.C. 5 2021 c.,
added by Section 204 (e)
Phillip Weeks of Public Law 95-604 (H.R.
13650)
Advisory Ccmmittee
Dear Sirs:
Carwin Ayccck
-Whether er not the precedural requirements of Neal Sergu, M.D.
42 U.S.C. 5 2021 c.
(hereinafter subsection o.) apply Eliza M. Carney Sister Mary Rcse Cnnsty i==ediately to l!. censing of uranlu: =111s by agree-James Fillmcre. M.D.
Cent states is a questiCn of =ajcr interest to us.
William F. Feist There is at the present time Cne applicaticn already Everett King
=ending for such a license frc= the Ari ena Atc=ic Fermin Martme:
tr.nergy Cc==issien.
Star.:ey Mayersene, Gwen McMan >n Sandra Metca t It is cur cpinien that the precedural require-Lynn Petreff
=ents do apply i==ediately and that section 204 (h) (1)
Selma Pine of P.L.95-604 dces not prevent such application.
The Melvyn Acthman. M.D.
legislative histcry is sparse buu supports cur position.
Phyllis Acyer Luce Sanene:
More i=pertantly, the language of subsection c.
Nan Stemer plainly applies the precedural requirements to the Lo's Tucmer licensing of mills as well as to the new process of Mace 6ene van Arscett licensin9 of byproduct materials.
Subsection c. pro-Marilynn Wennershm vides that "In the licensing and regulation c:..cy-product materials, as defined in section 11 e.
(2) of this Act, er of anv activity which results in the production of bvprecuct material a State snale require (r.=pnasis acded.)
Accendix D
Joseph M. Hendrie, Chairman January 23, 1979 Page Two The earlier bill, H.R. 13382, contained enl'y a reference to the licensing and regulation of byproduct material, and in reference to such licensing enly a requirement as to state enforcement of substantive standards.
Section 9.
Section 7 of H.R.
13382 cen-tained language similar to Section 204 (h) (1).
Sec-tion 7 provided that a state would have the authority to protect the public health and safety from radiation hazards associated with byproduct material for three years, but after three years only pursuant to an agree-ment or an amended agreement.
This language was in harmony with the Nuclear Regulatory Commission's prior positicn that it lacked the authority to regu-late directly mill tailings piles.
Section 204 (h) (1) of P.L.95-604 refers only to byproduct material and.is, therefore, similar to Section 7 of H.R.
13382.
Subsection o., on the other hand, has a much broader scope than Section 9 p. of H.R.
13382.
One of its principal aims is to eliminate many of the inconsistencies between the Commission's mill licensing procedures and the varying procedures of the agreement states.
The need for elimination of these inconsis-tencies was emphasized during the hearings on H.R.
13382.
See.,
e.g.
statements by Helene Linker, Natural Resources Defense Council and David Berick, Environmental Policy Center, Hearings on H.R. 13382 before the Subccmmittee en Energy and the Environment of the House Comm.
on Interior and Insular Af f airs (July 10,1978).
For this reason, subsection o. dces not just refer to licensing of byproduct material but also refers to the mill licens-ing precedure.
This brings the agreement states' mill licensing procedures more in line with tF.e Commission's.
The earlier versions of H.R.
13650 contained only a reference to "any activity which results in the produc-tion of byproduct material."
H.R.
Rep. 95-1480, Parts 1 and 2.
However, given the separate license which is now required for the byproduct material, it is clear that the language of subsection o. was changed to apply to both mill licenses and byproduct material licenses.
The discussion of H.R. 13650 on the ficor in the Senate and the House supports our interpretation that be the procedural requirements of subsection o. must folicwed by agreement states in their licensing of uranium mills.
Senator Wallep pcinted out that H.R.
13650 would "also preserve the opportunity of the States through the agreement State program to license and regulcte uranium mills.
The agreement states would be
Joseph M. Hendrie, Chairman January 23, 1979 Page Shree
.requ red to follow at a minimum any Federal substan-i tive standards.
In addition, public participation and environmental review goals would be established for the agreement States.
CCNG. REC. S 18750 (Daily Digest, Oct. 13, 1978).
During the ficor dis-cussion of the final version of H.R.
13650, Congressman Dingell described the Hcuse version of the bill which
" sought to make it clear that mills located in agree-ment States would be treated no differently than those located in other States where NRC is the regulater."
He referred to the Senate's deletion of a reference to NEPA and of the requirement for adjudicatory pro-cedures while retaining, requirements for mill licensing
" consistent with the principles of NEPA."
CONG. REC.
H 12968 (Daily Digest, Oct. 14, 1978).
See also Senator Wallop's reference to the licensing hearings for uranium mills under the final version of H.R.
- 13650, CONG. REC. S 19037 (Daily Digest, Oct. 14, 1978).
The language of subsection o. was clearly designed in response to the criticisms of agreement states' exist-ing mill licensing procedures which do not provide for the independent health and environmental evaluation and public participation that the Commission's procedures provide.
An immediate application of subsection o. to Ari B-
- ona's mill licensing would make a significant differ-The Arizona Atomic Energy Cc= mission does not ence.
conduct the in-depth and independent evaluation of the radiological and nonradiological impacts of a proposed uranium mill as it would be required to do under sub-section o.
Without waiving cur right to assert'the noncompati-bility of Arizona's procedures with the Cc= mission's procedures even if subsection o. is not applicable, we respectfully request that the Nuclear Regulatory Commission consider our comments and determine that subsection o. is applicable i= mediately to uranium mill licensing by agreement states.
Sincerely,
?cCWelau 0 /Y h v Patricia A.
Perter Staff Attorney PAP /tc cc:
Martin Malsch e