ML19263D054
| ML19263D054 | |
| Person / Time | |
|---|---|
| Issue date: | 02/02/1979 |
| From: | Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML19263D053 | List: |
| References | |
| REF-10CFR9.7, REF-PROJ-M-25 SECY-79-088, SECY-79-88, NUDOCS 7903200513 | |
| Download: ML19263D054 (41) | |
Text
Jl NUCLE AR REGUL ATO RY "OMMIS510N IN THE MATTER OF:
PUBLIC M M ING DISCUSSION OF SECY-79 TD1ING OF CERTAIN REQUIR:IMENTS OF THE URANIUM MILL TAILINGS RADIATION CONTROL ACT OF 1978 Place - Washington, D. C.
Date. Wednesday, 7 March 1979 Pages 1-70 Tevecnene:
000) 347 3700 l
ACE FEDERALREPORTERS.INC.
79032005 W 4M Ncrth Cecitel Street Washingten. O.C. 2CC01 NATIONWICE CCVRAGE DAILY
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DISC 1. AIMER-This is an unor,.icial..e<c*iPt of a meeting of the United States in the s... ~
C nh d on 7.a Nuclear Reculagg/ ert:tiss
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The Corr. mission s c...c-Tiiis transcript meeting was c;en i.o,ualic a+ =rd=n =- and observatica.e ite, and it may conta has not been reviewe, c
's 1 infoi-.a'ticnal curposes.
. The transcript is intended so7e3y
.,7 e. so a As provided by 10 CFR 9.103, i t 1s no pa.
- c. g,,s.or-tal or info'rr.al
-=*-=rs discussed.
.pr siens o cpinien in k
c u.a record or dec,.sion.
this transcript do not necessarily ret 3er*-
M, o s.inations or e
1p-;,. ".* C mi s si on in
..o ? =-=diac o. otner paper may e,.11,p l
o any statement or argumen bellers.
any proreadi.c as the resul t o er 2M. acssA e
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"a contained herein, except as the Cc=1ssion may
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2 l 13131 1l UNITED STATES OF AMERICA NUCLEAR FEGULATORY COMMISSION 2
I 3
PUBLIC MEETING i
4, l
DISCUSSION OF SECY-79 TIMING OF CERTAIN REQUIREMENTS OF THE 5i URANIUM MILL TAILINGS RADIATION CONTROL ACT OF 1978 6
i I
Room 1130 7
I 1717 H Street, N.W.
Washington, D. C.
8j i
l Wednesday, 7 March 1979 9;
i 10 '
The Commission met, pursuant to notice, at 9:3S a.m.
11 '
BEFORE:
.12 ;
DR. JOSEPH M. HENDRIE, Chairman l
I 13 VICTOR GILINSKY, Commissioner l
14 l RICHARD T. KENNEDY, Commissioner I
f PETER A. BRADFORD, Commissioner 15 16 PRESENT:
L. V. Gossick, L. Slagge, C. Stoiber, G. Sege, 17 J. Martin, M. Malsch, B. Garver, S. Chilk, R. Ryan, and 18 S. Ostrach.
I i
19 20 '
1 2I i
22 3 il 23 q 24 Ace Federal Reporters, tric.,'
25,
l 1
l
3 R 3131 IMI 1
P,,R,Q Q Q E,Q I,,,N,Q @,
2!
CHAIRMAN HENDRIE:
Could we come to order.
I 3,
The Commission meets this morning to discuss problems l
4 which seem to have arisen in dae timina of certain recuirements I
of the Uranium Mill Tailings Radiation Control Act of 1978.
,l Commissioner Kennedy will join us in a few minutes,
6 7
and Commissioner Ahearne, I am sorry to say, is ill today and will have to read the transcript to find out what we learned 8
9 and thought and did today, i
10 1 In reading through the assorted papers on the matter, 11 I am pleased to say I didn't understand a number of points.
I 12 trust that those will get duly explained, and then I will be 13 able to ask some questions to help myself along on the ones I
14 that are not explained.
1 15 We have had a recuest from Governor King of New i
16 Mexico, a state in which a number of the facilities that are 17 affected by this Act are located.
The Governor has requested 18 Mr. Bruce Garver, Assistant Attorney General, be allowed to 19 pitch his two cents ' worth in at an appropriate point.
And we 20 welcome you, Mr. Garver, and we will be glad to hear from you.
I 21 Let us get started on the proposition, and the staff 22 will introduce the subject to the Commission and lay out the 23 sort of ground points.
And as we get down through the meeting, i
\\
24 ' why, we 'll get down to a point where we would like to hear your Ace Federet Reporters. Inc.
25 l point of view fron the state side, particularly a state as i
i e
4 te 2, involved as New Mexico is in this matter.
i 2
MR. GARVER:
Thank you very much, Mr. Chairman.
l 3
CHAIRMAU HENDRIE:
Lee, why don 't you go ahead and I
4!
introduce s taff members.
l 5
MR. GOSSICK:
Thank you, Mr. Chairman.
We have the Conmission paper 79-88 that addresses the-6 7
subject.
Mr. Shapar will do the briefing.
He have Mr. Martin here and, of course, Mr. Dircks and
.Nr.
Ryan.
8 MR. SILAPAR:
Mr. Chairman, I would also like to l
9 l
10 1 introduce Elisa Grammar from my staff, who participated sub-3 l
11 stantially in the preparation of this paper.
On November 8th of 1978, the President signed the 12 13 Uranium Mill Tailings Control Act.
It is a rather complex 14 statute.
It has been summarized for you in the previous paper 15 submitted to the Commission.
16 There are two main very narrow, but complex, questions 17 which are the subject of the subject paper.
They are narrow and they concern whether or not certain recuirements in the 18 6
19 Act are immediately effective and are applicable during a 20 i three-year interim period, at which point other provisions of i
I 21 1 the Act come into play.
I t
The two questions are as follows:
22 i
i Number one, whether or not there is concurrent 23 i
i 24' jurisdiction over the mill tailings.
By concurrent j urisdiction, Ac.-F.ews necomn. inc.
25 l I mean jurisdiction, of course, on the part of the MRC and the l
I i
Ite 3 5
1 Agreement S tates.
2 The second question.is whether or not certain l
3 requirements in the Act relating to source naterial mill I
i 4i licensing are imrediately effective insofar as those recuire-l 5!
ments are applicable to the states.
And to round it ou.
6 cuickly, those recuirements deal with compliance with NRC and 7
EPA environmental and health and safety standards, notice and a
comment recuirements for rulemaking, opportunity for public 9
hearings with cross-examination in licensing proceedings and I
1 l
lo !
environmental analyses in connection with licensing.
11 So the second question is whether er not those 12 require.-ents are immediately effective insofar as their applica-(
13 bility to Agr.eement States is concerned or whether they are not 14 effective until three years have elapsed af ter enactment of the,
i i
15 Act.
I 16 fr think it's fair to say Ehat both questions are 17 difficult ques tions and respectable argunents can be narshaled 4
18 on both sides of both auestions.
I i
19 As f ar as the NRC staf f is concerned, they agree with 20 1 the conclusions in the paper as far as the substance is con-21 l cerned with respect to the answers to those two cuestions.
1 i
22 ; There is scme disagreement about whether or not legislation is i
23 ! a good or a bad idea and dif fering views about die utility of i
24 seeking any advice from the Attorney General, and I will say a Aa-ren i mmoran. tx. :
i 25 i few words about that later.
i i
l i
6
- e 4, 1
Depending on how these two narrow questions are 2
resolved, it could have a very serious impact on the NRC and 3
state licensing programs in terms of resources and other 4! matters, and of course, it could also have an effect on industry I
i Sl and HMSS is prepared to address those impacts later on.
.i 6
Now, what the Uranium Mill Tailings Control Act did I
7 was to define the tailings as byproduct material and to impose i
i 8
certain obligations on the states and on the NRC and EPA as: welli l
9 with r espect to the hazards from those operations.
No matter i
i 10 ! which way NRC goes on this, there is likcly to be strong l
i 11 criticism from various interested persons.
{
12 The questions are complex, as I indicated, and there i
i 13 are even differing views among the Congressional staffs that i
1 14 participated in the legislation.
15 Some letters have been received by the Commission, and 16 we have made other formal contacts to find out how various 17 people view these questions.
You all will recall that the staff 18 paper has been made available to the public some days before 19 this meeting, and we are getting reactions to the paper which 20 is the subject of today's meeting.
Even some of the environmental 21 community is divided on what the answers to these two questions i
22 l should be.
23 :
Now, I will try to keep this briefing fairly brief 24 and focus on the main points and try to finish in about ten Ace-Federet Reporters. Inc.
25 minutes.
i
7 ite 5 1
CHAIRMAN HENDRIE:
Howard, before you make that 2j plunge, let me see if I can map out for myself -- and you can I
I 3-correct me -- map out the principal provisions of the bill.
One i
l 4' of the things the bill did was to define tailings as a byproduct 5
material.
This reans that a milling operation in due time will.
l 6
be reanired to have both a source nateriai license, which it 7
had to have prior to the enactnent of the bill, and a byproduct 8
material license to account for the tailings.
And it is by 9
virtue of incisding the tailings as a byproduct material under 1
10 I the Atomic Energy Act that we acquire that long-term control i
11 on the tailings piles that we think is appropriate.
l I
12 Now, where NRC licenses a mill, the bill that we had I
i 13 proposed to accomplish our control of the tailings had said that i
14 there would be a three-year period before a byproduct material 15 license for tailings would be required from the NRC.
The source 16 material license for a mill, obviously, is a proposition in 17 existence and would continue, is that correct?
18 FR. SHAPAP. :
Yes.
l 19 CHAIRMAU HENDRIE:
In Agreement States, since NRC 20 has now acquired new authority over tailings, we would be able 21 to pass that authority on to ' the s tates under the Agreement 22 States provisions of the Act.
It was similarly contemplated in i
i 23 f NRC's version of the bill that stace implementation of control t
l 24 over tailings would occur three years af ter enactment, to - hllow weeer i neoorters, inc.
25 { time for die state regulatory bodies to get into shape to do t
ite 6 8
I it and state legislatures to pass laws, if that was necessary; 2
is that right?
3 l',
MR. SHAPAR:
Yes.
f 4!
CHAIRMAM HENDRIE:
And then there was further provi-i 5
sion that said:
And furthermore, with regard te -- that 0
Agreement States, with regard to their regulation of these mills' 7
and tailings -- now, is it both the source material and the 8
byproduct material licensing, wasn't it?
9 MR. SHAPAR:
- Yes, i
10 i CHAIRMAM HENDRIE:
That states in their regulatory II programs have to at least conform to minimum federal standards.
12 MR. SHAPAR:
I don't believe our bill covered milling 13 as such.
It was just the byproduct material, I think.
I think s
Id it was a simpler version.
15 CHAIRMAN HENDRIE:
Simpler.
Again, that matter of i
16 Agreement States bringing their regulatory program into confor-17 mance with the NRC regulatory procram was again in our proposals 18 delayed by three years.
19 MR. SHAPAR:
Yes, it was completely clear in our bill 20 l that there was a three-year delay.
2I CHAIRMAM HEI;DRIE:
The bill as passed raises ques-I 22 tions both as regards the need for MRC to inpose the new -- to 23 inpose its requirements on tailings provided in the new byproduct 24 i authority, and on the Agreement States to conform to NRC on Ass-Federal Reporters, Inc.
25 '
bo th.
And the proposition that I think you propose here is I
e
9 to 7 I
that while the statute as enacted is clear, that the states 2
don ' t have to implement what, the tailings program for three d
3 years?
l 4
MR. SIIAPAR:
No.
The Act is clear that there is a l
t i
I i
5 three-year hiatus on the requirement insof ar as the states are 6
concerned over the tailings.
No quection about that.
7
.CUAIRMAN HENDRIE:
That's explicit?
8 MR. SHAPAR:
That's explicit.
9 CIIAIRMAN IICIDRIE:
But unfortunately, everything else 10 f is up in the air as regards three years or immediately.
Il MR. SHAPAR:
With respect to the milling on the 12 source material.
13 CHAIPEAN HCIDRIE:
Okay.
How that I have confirmed my understanding or have it appropriately bodified, why don't Id 15 you go on and tell us what you think the options are?
I 16 MR. SHAPAR:
I can shorten my briefing to five I7 minutes.
I 3-f 18 (Laughter. )
19 l
20 l I
i 1
21 l
22 l 23!
24 i
Aa-Fewsl Rmorters. im.
1 i
l 10 I
CR3131 MR. SHAPAR:
The act says it's effective on 2
tape 2 enactment unless otherwise provided in some other section, 1,
3:
david 1 and as we see it, the better view is that there is no section i
I i
- l that clearly delays NRC's duty to license byproduct material, i
1 5
even those there is a section that appears to forestall 6
federal preemption of all state jurisdictions over the tailings 7
during a three year period.
8 So what I am saying is as far as we are concerned, i
9 although we recognize that respectable arguments can be I
marshalled in the other direction, our own view is l
10 3 11 that the better reading of the statute in so far as the 12 first question, concurrent jurisdiction over the tailings, 13 is concerned, is that there is no three year delay.
l l
14 There is an explicit provision delaying --
l i
15 CHAIRMAN HENDRIE:
And that a concurrent 16 jurisdiction, state and federal, is mandated by the act for whatever the intent may have been.
l I7 18 MR. SHAPAR:
That's correct.
In fact even ene of 19 the earlier versions of the legislation that came af ter our I
I 20 !
bill as drafted on the Hill, made it clear that the states didn't really have to immediately comply with the requirements 21 I
22 of the act regarding the tailings.
They only had to do it 23 l in so far as practicable.
24 So the basic idea we incorporated in our legislarion Aa-FMed Amornes, lm,
25 and our bill was carried out in part in the early versions of 6
11 I
david 2 the bill as drafted on the Hill.
There are other sections 2
in the act that do indeed explicitly delay the effectiveness 3l cf certainprovisions of the act.
For example, we can't I
dj enter into an amendment to an agreement with a state or I
5 a new state agreement for a takeover of the newly defined 6
byproduct material until a period above three years.
7 That explicitly delays the effectiveness of the 8
bill in that sense; and the bill does preserve preexisting 9
state authority over the regulation of milling.
The second question is, I think fair to say, a
{
10 i II cliffhanger.
It's a very difficult question in which 12 respectable arguments-and forceful arguments can be I3 mustered on both sides of the question, and that relates to
- i Id whether or not the requirements on the states that I 15 outlined befcre regarding the rule making,and the cross 16 examination opportunity for hearings and environmental I7 analyses and the like are immediately effective or not.
18 (At 9:55 a.m., Commissioner Kennedy entered the f
19 room.)
20 MR. SHAPAR:
As I noted before, the bill says 21 l all parts of the bill are effective immediately unless I
l 22 otherwise specified.
And as I indicated before, a section 23 l of the act specifically delays effectiveness for agreement 24 state authority with respect to byproduct material.
Ac..s.o.es n.oonm. inc.
25 CHAIRMAN HENDRIE:
Say that again.
,t 1
12 MR. SHAPAR:
With ret.,act to the tailings, 3
the bill specifically delays effectiveness for three years.
2 i
I 3
CHAIRMAN HENDRIE:
Okay.
The bill delays for j
three years the requirement that the state's regulation of 4
I the byproduct authority -- use of the byproduct authority 5
be consonant with NRC's.
6 MR. SHAPAR:
That's right.
Now, it's important 7
I' to remember these requirements I mentioned apply both to 8
milling with source material end the tailings, byproduct 9
i material.
l 10 I l
CHAIRMAN HENDRIE:
New requirements for the states..
jj i
MR. SHAPAR:
Nor the states.
12 CHAIRMAN HENDRIE:
And the requirements are just 13 i
that they conform with what the federal --
l 14
}
MR. SHAPAR:
Essentially.
Now, remembering that 15 the requirnents apply both to the byproduct material, the 16 i
tailings in so far as the state obligations, and the j7 source material, the delaying clause --
18 I
CHAIRMAN HENDRIE:
Only affects one.
j9 MR. SHAPAR:
Ohly affects one.
So therefore I 20 l think it's fair to say that a literal strict reading of 21 the statute would delay the state's obligations in so far 22,
as these new requirements are concerned with respect to the i
23 i
tailings, but not the source material.
24 Au Federal Reoorters, Inc.
Now,. this is sort of -- strike the words " sort of."
25,
I l
13
! avid 4 1
This is an ancmalous result.
2!
COMMISSICNER KENNEDY:
I was going to ask you what's; i
1 3
zhe practical effect of that.
L 4
MR. SEAPAR:
The practical effect is remembering l
i
}
)
Si that the focus of the bill is really on the hazards of the 6
tailings and not on the milling.
It means you will have more 7 !
stringent rules immediately in place for the milling and 8
not for the tailings, which is really the focus of the bill, 9
a very anc=alous result.
i i
I 10 :
I think it is also fair to say that if you look at Il the way this bill was born, its background, if you take a I
i 12 '
broad look at scme of the" provisions, if you look at the 13 fact that the bill provides for grant money to help the states i
Id assume their new responsibilities -- and that grant money t
15 won't be available at the earliest until fiscal year 1920 --
16 the result beccmes even more ancmalous, if you follow a i
17 l strict reading of the statute.
t 18 !
Here you have what I'd call almost a classic I9 :
situation where a strict reading of the statute leads you to i
20 l a result that! at least feel was not intended.
And this is i
21 ;
not an unusual situation.
In fact maybe the Cc= mission has 22 l faced it before.
I s
23' CHAIRMAN HENDRIE :
Mostly with regard to our own I
og 4 d
regulatiens rather than statute, I think.
Aa.swwm Rmornn. lM.
25 ;
MR. SHAPAR:
In fact I could think of an even better i
I i
14 I
david 5 example in connection with the Hathaway Amendment to the 2
Price-Anderson Act regarding'whether or not the cost of 3
settlement and administration will diminish the funds 4
available.
There we strove hard to achieve a result based 5
l 5
on what we felt was the clear intent to say that those costs 6
could not be subtracted from either the underlying insurance 7
funds or from ta=. e. c iding indemnity.
8 The Commission wanted an attorney general's 9
opinion on that in that case, and what we got was a strict l
10 I reading of the statute.
Of course the rules of statutory I
11 t
interpretation are very diffuse, and one can find support, 12 I think, in most instances, if you want to use the rules of 13 statutory instruction, let ' : say, a reasonable result.
Id I think Elisa Grammer dug out a iretty good l.
15 quote in the legislatica, looking in the rules of statutory i
I0 construction attributed to Justice Frankfurter, who said I7 when legislative history is in doubt, why don't you look at the 18 l
statute.
CHAIRMAN HENDRIE:
That seems a harsh statement.
20 COMMISSIONER KENNEDY:
That's an interesting 21 quote, but tell me how it's helpful.
22 :
MR. SHAPAR:
It was not intended to be helpful, i
I 23 only humorous.
24 (Laughter.)
Ace Feceral Reporters, lac.,
25 '
MR. SHAPAR:
All right, now as to policy:
I think l
l' i
l
l 15 I
david 6 there are several policy matters the Commission would want l
2 to look at.
First and foremost I would say is environmental i
I 3'
i protection.
The Commission in a recent policy statement I
i 4'
indicated that it considered its procedures for environmental l'
5 analyses to be very conducive to goed decision making, and 6
on that basis decided to make grants available to the states 7
so that the states could bring their environmental analyses 8
more in line with the Commission's.
9 COMMISSIONER KENNEDY:
Is that what we said?
i i
MR. SHAPAR:
Yes, substantially.
{
10 1 11 COMMISSIONER KENNEDY:
What does substantially 12 mean?
13 MR. SEAPAR:
It's not exactly, but I think the e
i l
14 general thrust of what I said is correct.
j 15 '
COMMISSIONER KENNEDY:
Or was it that we thought 16 the states' environmental capabilities should be increased?
i l
MR. SHAPAR:
Well, I didn't -- I can take the l
I0 time --
l 19 COMMISSIONER KENNEDY:
Did we set a model?
Did we 20 l do that?
i 2I MR. SEAPAR:
I su:rrarize from notts af ter looking at the actual language.
What my notes say are that--
COMMISSIONER KENNEDY:
It's not a big point.
24 MR. SEAPAR:
-- environmental review procedures Aes-Federal Reoorters, Inc, 25
similar to our own enhances effective decision making.
And i
i I
1 l'
16 f
I david 7 that was one of the main premises of extending assistance 2
to the states in connecticn with their environ = ental decisien 3
=aking.
4
.t s a quest:cn c:
Ce.vM.~.C..
..,.,_,Y:
v
.co-
.. :..s u.... :. -
i 5
definitien of similarity and we wcn't go into that today, i
I 6 ',
but later.
l 7'
MR. SHAPAR:
I guess =v. reint was --
o t
3-CC.*MISSICIER KIN EOY:
Let =e just point cut that 9
I think that whereas we =ay be a fund of all kncwledge, in 10 sc=e views I don't think sc.
I think the states, =any of thea, 11 '-
by and large, have indicated a fair appreciation of the 4
is -
environ = ental require =enns, particularly since they live I
I3 l there, and we don't.
t.
i i
14 'i, And I think we cught to give reasonable deference 15 to the fact that it is their state, their territory, their l
16 property, and sc=eti=es we dcn't and that's the caly reascn u
I for =y ec==ent.
18 MR. SHAPAR:
Sure.
19 '
Another e.cliev facet that the Cc==issicn =av_ vant
'O to explore, depending which way thev. c.c en these questiens,
.\\
21 if the i= pact en the agree =ent states.
~' hey obvicusly need 3,l ti=e to gear up to assume their new respensibilities to i
' 3,' develop the capabilities in sc=e states to de an expanded
- t enviern=ertal analvsis.
In fact even sc=e new i=Ne=enting Ac.a.e.,
= co, m. i=.,
1
= c
.t legislation =sy be needed by the states in crder
- c assu=e
'~
17 I
lavid8 their new responsibilities.
2 And they need to fund the new program to carry i
3 out the new responsibilities.
So if you view the statute l
d' as being effective immediately with respect to the l
5 states' assumption of their new responsibilities regarding 6
milling, some states may find it very difficult and perhaps 7
impossible to gear up these programs and mount them in this 8
three year interim period.
9 These are practical considerations --
l.
10 COMMISSIONER KENNEDY:
Mount them in the three II year interim period or mount them immediately' 12 MR. SHAPAR:
Mount them immediately would be 13 more correct.
Id COMMISSIONER GILINSKY:
Howard, would these 33 apply to -- in any way to mills that are in operation l
l 16 now, or would they apply to mills for which applications have I7 been filed or will be filed during this period?
If you assume the new requirements on I9 the agreement states are immediately effective, it would 20 apply to mills that are nou in operation.
I 21 COMMISSIONER GILINSKY:
In what way, through 22 '
modofications?
23 CHAIRMAN HENDRIE:
No, those mills out there have 24 ;
tailing piles, and the piles are now -- you know, the radon Aa-Feetal Recorter, Inc.,
.I I
25 is now defined as a byproduct, while the tailings are defined l
a
18 david 9 I
as a byproduct material.
So all of a sudden they've got to have 2
it --
4 3
MR. SHAPAR:
Not so, because the act is clear that l
4{
in so far as the byproduct material, the tailings are I
I 5l concerned, there is a three year delay, so we are only i
6l talking now abcut the milling.
7 CHAIRMAN HENDRIE:
For NRC licensing?
8 MR. SHAPAR:
For state licensing.
9 CHAIRMAN HENDRIE:
For NRC licensing.
t 10 i MR. SHAPAR:
There are requirements immediately l
II applicable for NRC licens,ing as well, but it doesn't have 12 a substantial impact, and that's another question.
I don't 13 want to get into it now.
I I4 CHAIRMAN HENDRIE:
But it relates at least to a i
15 question thatI was about to go to.
It appears to me that 16 the bill either requires or may be read to require immediate I7 NRC 'mplementation on the byproduct material, the new 18 byproduct material provision; that is, people who have tailings and are licensed by NRC now have got a tailings 20 pile for which they need a license, and they don't have a 21 license.
i 2,1 And so if indeed the immediate effectiveness reading 23 !
of the statute is correct, then for those mills that NRC
^4 licenses were alreadv behind the curve since November 8 in Acs Federal Reporters, Inc.
25 getting an amendment or.getting a license out to them so it's l
l, e
19 daivd10 I
legal for them to possess their tailings pile.
And tailings 2
piles are generally too big to hide or move away.
I 3
(Laughter.)
l 4
Now, beyond that, the statute says in due time 5
the agreement states can administer this tailings 6
licensing, but that is the one place that the explicit 7
three year delay was --
8' MR. SHAPAR:
Exactly.
9 CHAIRMAN EENDRIE:
So NRC at least in one I
I 10 1 reading of the statute may have the immediate problem of 11 what to do about all the, mills that we license.
I2 MR. SEAPAR:
Yes.
13 CHAIRMAN HENDRIE:
With regard to getting them 1
Id a tailings license, obviously; and the new ones then would i
15 have to have -- now, let me ask a question.
Since they are 16 a mill in operation, it has a tailings supply.
It has a 37 license from us to possess source material which is a processing 18 step, and the ore comes into play through the processing step on the ore.
20 We now have to issue a license that he can i
21 possess his tailings pile, which is there willy-nilly, 22 whether he likes it or not.
I assume that's a major federal 1
3; action.
We can't issue that until we prepare and issue and i
24 environmental impact statement on the tailings pile; is that AcsJederal Reporter
- Inc.
25 correct?
Or am I being. unnecessarily -- do I leap too far here?
i
20 I
david 11 MR. SHAPAR:
Certain work is now being done --
2 CHAIRMAN HENDRIE:
What do you think, Jack.
3 MR. MARTIN:
We've issued environmental impact 4
statements on almost every one of them now, and all of their l
S tailings plants, all of the ones we have licensed have been 6
upgraded to meet what we think is the state of the art.
There 7
are still'a couple that the DES is still out for comment.
8 But out of the 11 we licensed., we will have or have already 9
an environmental impact statement.
i' 10 1 CHAIRMAN HENDRIE:
That include the tailings?
11 MR. MARTIN:
Yes, sir.
I2 CHAIRMAN HENDRIE:
This is as a result of a sort 13 of refurbishing and update effort of the last couple of I4 years, I believe.
II MR. MARTIN:
Yes.
In fact they focus almost l
i I0 exclusively on the tailings because that is --
I7 CHAIRMAN HENDRIE:
That's the interest from a 18 long term radiological hazard standpoint.
Okay.
But what I have proposed is in that case we need some sort of an 20 environmental impact statement in order to issue tailings i
21 licenses.
It's a good thing we were underway and in good 22 l
shape; otnerwise, we would have a problem.
i 23 i
Now, let me ask about the agreement states, okay?
24 l
In an agreement state there is an existing mill, and instead AceJederal Reporters, Inc. ;
i 25 { of having a source material license from us, it has some l'
l l
I 21.
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I david 12 i
equivalent under the state agree =ent, NRC-state acree=ent.
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j MR. SEAPAR:
Right.
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CHAIRMAN HENDRIE:
Okay, nothing is changing about i3 2
our source material licensing.
So the need for states to be i
3 in conformance with this -- or let me ask a question.
(
l i
i 4'
It may be that the state regulation with regard to i
5:
the source material part of the activity is not one-on-one in 6
conformance with NRC practice.
True?
I 7
MR. SEAPAR:
True.
CHAIRMAN HENDRIE:
Obviously true.
8-,
9 MR. SHAPAR:
Though it should be compatible.
I 10 '
CHAIP EN HENDRIE:
It has to be compatible under i
11 the old statute, but not --
l 12 MR. SHAPAR:
Not identical.
13 CHAIRMAN HENDRIE:
Not identical, or necessarily i
14 meet all of those standards we would apply.
Because co= pati-15 bility was regarded as a rather broader, more flexible sort t
i 16 of general agreement w..a NRC practice.
l 1
17 ;
COMMISSIONER KENNEDY:
But how much deviation was 18 there as a practical matter?
i 19 l MR. MARTIN:
I think very little.
That's not a i
I 20 i touchy question.
21 lI CHAIRMAN HENDRIE:
Okay, so you see the question I i
22 am getting to is:
If the states have to bring their source 23:
materials licensing practices into conformance with ours 24 i==ediately, does that create a prcblem for existing mills in Ace-Focef at Reoortges, Inc..
25 ;
Agreement States on the source materials side?
i i
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3-2 jwb 23 MR. SHAPAR:
Jack?
1 2
MR. MARTIN:
My belief is "no."
CHAIRMAN HENDRIE:
Do you think as a practical 3
4 matter, probably not --
MR. MALSCH:
But that is in terms of substantive 5
6 standards.
States still in some cases have not done 7
independent environmental evaluations of the type which the statute has now required.
8 And in some gases have not offered cross-examinations in g
9 i
10 1 hearings that would now be required if the procedures are 11 effective right away.
CHAIRMAN HENDRIE:
Do we have to go back -- they 12
. don' t have to go back and sort of redo their licensing of 13 14 previously licensed mills in order to provide those services, 15 do they?
16 MR. MALSCH:
What we suggested on paper is:
If I
l i
one would conclude that the requirements are applicable to l
17 18 Agreement States right now, then they would apply naturally i
19 when they process renewal applications for existing mills.
r i
I That could happen within a three-year period.
20 i
COMMISSIONER KENNEDY:
And there are applications l
21 I
I 22 out there before states?
l 1
MR. :IALSCH:
Yes, and before us, as well.
I 23 24 CHAIRMAN HENDRIE:
That's right.
Any license which AwfMwal Rumrters. lrc.,
23 :
is not already issued in an Agreement State would then, under l
3-3 jwb 24 1
that reading, just be caught, and stop dead in the watez until 2
they could churn up these procedural matters, these nev 3'
procedures in the Environmental Impact Statement.
I t
UR. SHAPAR:
As far as the Environmental Impact
{
4 l
5 Statement, of course the Commission's policy is to provide i
6 assistance to the states.
So to that extent, there would be some dimunition of the state's burden.
7 COMMISSIONER KENNEDY:
But that only assumes the 8
state has time to use that assistance?
9 10 l MR. SHAPAR:
That's correct.
11 UR. MARTIN:
As a practical matter, they are using 12 it in all cases.
We have been deluged i.td1 it.
13 COMMISSIONER BRADFORD:
How many Agreement States 14 mills are there?
15 MR. MARTIN:
There are 11 active ones, and there 16 are several more in process.
17 COMMISSIONER KENNEDY:
" Mills," or " mines," or 18 both?
j i
19 MR. UARTIN:
These are mills.
l l
20 CHAIRMAN HENDRIE:
We don't do anything with mines, l
21 jer se.
22 MR. MARTIN:
We don' t get into the mines.
Sometimes l
23 l we cover them in the Environmental Impact Statements if they' re i
24 closely coupled.
Ace-Feceral Reoorters, Inc.
25 i COMMISSIONER KENNEDY:
I know -- I'm just thinking, i
3-4 jwb 25 I
they are not always, but usually related activity.
2 MR. MARTIN:
Right..
Many times there are several 3
mines that feed one mill.
We currently have like 12 requests 4
for assistance from the Agreement States in-house at this 5
moment.
Some are for full-blown new mills; others are for 6
modifications; others are for renewals.
7 COMMISSIONER KENNEDY:
Are they talking about work 8
assistance in respect to a given -- a particular prospective 9
license?
Or are they talking about it in a more generic 10 I sense?
II MR. MARTIN:
These are for specific licenses, eitheri l
new applications or renewals of old ones, or major modifications 12 13 of existing ones.
I 14 Assistance is primarily to prepare for them an 15 environmental evaluation which looks at the -- if it's a new 16 mill, looks at alternative sites, and whatnot, looks.at l
17 tailings management and the radiological assessmen 16 But the socioeconomics and the biota, and that sort i
i 19 of thing, transportation -- local kinds of issues, it's the
{
l 20 1 way it's split up.
i 21 CHAIRMAN HENDRIE:
Yes, those things stay with the 22 state.
l I
t 23 l MR. MARTIN:
We have completed one, the Cotter I
24 Corporation in Colorado, and we have several more.
'rhey are Aa-Federal Reporters, Inc.,
i i
25 close, in New Mexico and Colorado both, and one in Arizona i
3-5 jwb 26 1
which we have started.
2 COMMISSIONER GILINSKY:
Do we have any notion of 3li how many state decisions will be affected, for example to 4
bnmediate effectiveness?
l 5
MR. SHAPAR:
I think Jack has that information.
t 6
MR. MARTIN:
Nell, on "immediate effectiveness,"
I think -- I can think of five major ones right offhand.
The 7
8 projections get a little Jimmer as we go out into the next 9
three years, but there is at least three in New Mexico right i
now that would be effective if there were immediate-effectivenes's lo !
11 for the source material.
COMMISSIONER UILINSKY:
These are applications for 12 13 new mills?
14 MR. MARTIN:
Yes.
And there is at least one in Colorado that would l
15 1
16 be effected right now.
17 COMMISSIONER BRADFORD:
What does "being effected" 18 mean?
19 MR. MARTIN:
I think, from a practical standpoint, i
20 it would mean, depending on what their laws say at the moment --
i correct me if I'm wrong -- but the procedural part of the new 21 1
22 law said you had to do several things.
j 231 You had to write an environmental analysis and i
24 '
circulate it.
I don' t think they would be affected there AeFMust Reorms. Inc.25, because we are doing that with them.
But it had several other l
3-6 jwb 27 things, like you should have a provision for a hearing with 1
2!
cross-exa.ination.
I'm not sure all states can de that righ e
i, 3
new.
I'm not sure their legal =achinery is set up.
In sc=e cases I have heard that there are laws tha 4!
e i
$l don't per=it that.
So that would nave to me enangec.
3 i.
i 1
6:
Bob Ryan, I think, night have the details on hcw l
7; each is affected.
i I
3 MR. SEAFAR:
It varies glite a bit frem state to
'9' state.
I t
10 -
CONSSICNER 3RADFORD:
et =e blunder around a i
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little bit =cre.
I, eave the procedural effect aside for a j
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mc=ent.
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As to the substantive effect, we would then have 1
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14 concurrent jurisdiction?
I 15 '
"'e are still 1.rictly talking, I hope, i
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still en source material and not the tailings?
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MR. SEAFAR:
Right.
i 18 l MR. HARTI'i:
In which case, the Agree =ent States 1
i t
19 have the jurisdiction; we de not.
COMMISSICNER 3FJCFORD:
They would retain that:
20 i
21 !
there would be no questien?
.I 22 MR. MARTIN:
Yes.
We're getting caught up in scne 23' precedural things which, frc= a substantive standpcin:
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25 law as to source =aterial is as to i=pesing the precedural I
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3-7 jwb 28 1
requirements on states receiving?
2 MR. MARTIN:
Yes, for which the environmental 3.
evaluation is already being done, and we are heavily engaged I
4 there.
5 COMMISSIONER GILINSKY:
When you said, "no substan-6 tive effect," do you mean in terms of standards, health 7,
standards?
8 MR. SEAPAR:
Well, part of the requirements are 9
that the states comply with NRC and EPA standards.
The EPA
-101 standards are not in place, frcm what Jack has said.
The 11 s +es are now substantially complying with the NRC standards.
COMMI.SSIONER Ib:NNEDY:
Having said all that, if 12 13 they are unable by their own law or by just a practical 14 necessity to institute the procedural steps necessary in terms 15 of hearings and all that within the next months or a year, 16 what then will be the effect in practical terms on the 17 applicants, if any?
18 MR. MARTIN:
Well, if they -- Howard?
l l
19 MR. SHAPAR:
Well, I can give an answer, but it i
i 20 uon't be the practical answer you are asking for, except in I
21 a certain respect, and it is this:
If we have reached the conclusion that these new 22
{
23 requirements are immediately effective on the states, having i
24 adopted that conclusion and the states don' t do it either A Femi smomes. w.,
25 '
because they don ' t want to or they can' t, that means the j
l l
i
3-S jwb 29 Commission is faced with the question as to whether or not to 2
terminate that part of the agreement.
Now that could result in a lot of, I guess, 3
adverse results because I think this kind of termination would 4
raise a question in the state's mind as to whether or not it 5
Wants to terminate the whole agreement.
6 Not only that, the state is entitled to a hearing, 7
by the way, before we can terminate the agreement, under 8
Section 274.
9 I
COMMISSIONER KENNEDY:
Short of that, however, if 10 11 the state wished to go ahead, it can go ahead and license.
MR. SEAPAR:
Nt could, under its own existing 12 13
. authority.
COMMISSIONER KENNEDY:
Right.
14 So then we would be faced with an existing license 15 16 issued by the state which we would believe inconsistent with l
17 the requirements of the law.
MR. SHAPAR:
There is one ameliorative thing that 18 i
19 works in the other direction that I guess I guess I ought to i
throw out to complete the picture of this part of the I
20 discussion in terms of our concluding that these new require-21 I
ments are immediately effective.
22 23l There is another provision in the Act that says, 24 notwithstanding anything else in the Act, that in terms of Ace 4ederal Reoorters, Inc,,
25 :
the new requirements the states can rely on the NRC proceedings.
I i
3-9 jwb 30 1
In other words, they need not duplicate any proceedings of the 2
NRC which deal with the same issues.
l 3i Now if my conclusion is right that we have concur-3 4
rent jurisdiction over the tailings -- and remembering that l
5 the tailings and the mills are one big operation -- it seems l
6 quite likely, if my conclusion holds up about our having 7
immediate. concurrent jurisdiction over the tailings, that we a
will have dealt with many of the issues that are present in 9
the mills.
10 I And therefore, if you assume the states have an i
11 immediate responsiblity to implement the new requirements j
12 regarding the mills, remembering the issues are within one
(
13 big circle, then the states need not duplicate the NRC 14 proceedings.
15 CHAIRMAN HENDRIE:
Wey can argue that was done i
16 by 10tC; that's adequate under the law.
I i
17 MR. SHAPAR:
That works in the other direction, in i
18 terms of lessening the burden on the states.
i 19 Now in the paper, I went through about four or five 20 alternatives in instructions, and the advantages and disad-21 vantages.
I think they are relatively self-explanatory.
I 22 would not propose to go into these options unless you would i
e 23' like me to.
I can do it, as you see fit, and I will summarize I
i 24 l what the staff conclusion is, what disagreements there are AceJeceral Reporters, Inc.
25 ;
within the staff, and attempt to give you some views that were l
i
3-10 jwb 31 I
received from the outside.
2 CHAIRMAN HENDRIE:
If I could sort of prejudge --
3 not " prejudge," but to make a comment on where your conclusions 4
come out, four conclusions seem to be, as I read it, first S
that whatever we do or don' t do we' re going to get sued.
6 clR. SHAPAR:
Likely to be.
7 CHAIIUtAN HENDRIE:
That the particular courses you 6
have recommended in your judgment offer the best chance of 9
being sustained in such action, provided always of course that l
10 some clarification to the legislation is not made, if indeed 11 the writers of the legislation were so inclined.
12 Do you want to go ahead and tell us what you 13 recommend we do?
14 MR. SHAPAR:
Yes.
15 Well, in the first question of course we recommend --
16 thesearethebasictwoquestions--werecommendthatthebest[
l i
17 reading of the Act -- and we reached this conclusion very 18 reluctantly, knowing what the background of the statute is, 19 but we feel forced to say Lit's the best reading we can give of 20 the statute, again recognizing respectable arguments can be i
i 21 mustered in the other direction, j
l 22 And that conclusion is:
That the NRC is immediately' 23 dutybound to implement its new authority over the tailings, 24 the byproduct material thereby resulting in a situation of i
Ace-Federal Reporters. Inc.
I 25 concurrent jurisdiction.
j
3-11 jwb 32 And number two, on the second question -- although 1
2 this is an exceedingly close question, and a cliff-hanger, as 3,
I described it before -- that the Agreement States are not required to impic..ent the new requirements with respect to 4
l milling until a period of three years after enactment of the 5
6 statute has passed.
Those are our basic conclusions.
7 Now whichever way the Commission goes on this, we 8
would recommend the Commission issue a policy statement which 9
I'
~ 10 i we can prepare, and correlative rules changes which will not 11 be too difficult to prepare.
l The Staff is unanimous on this being the correct 12 13 interpretation of the statute.
14 With respect to the matter of legislation, the l
l Staff I believe is divided, and they are here at this session l
15 1
16 and can speak for themselves.
I I
17 NMSS is opposed to legislation on SP.
State 18 Programs would be in favor of legislation.
My own view is, 19 on legislation, I think it would depend very much on the mood 20 of the committee chairmen,sery much so.
It's really a practical question, rather than a 21 i
theoretical one is the point I'm trying to make.
l end #3 22 l
23 i
24 l l
Aw-FMwal Rmornn, lts. j 25 i l
1
33 31.04.1 gsh 1
MR. SHAPARs With respect to one other option 2
mentioned in the paper, something I'm not pushing very hard 3
at all, and that is ge tting an Attorney General's opinion.
4 I think there are a lot of disadvantages to it.
The one main 5
advantage and the only reason I mention it is that in view of 6
the controversiality of this subject matter and the f act 7
that litigation is a good prospect no matter which way you 8
go, there are certain advantages to getting the opirion of 9
the chief legal officer of the United States, either formally 10 or informally.
.11 But there are disadvantages, as OGC has pointed out, 12 and one might well be. wary of seeking an Attorney Gene -el's 13 opinion under these circumstances.
14 CHAIRMAN HENDRTE: Howard, it appears to me that 15 the participation of great legal. minds who are otherwise 16 untutored in the specifics of atomic energy law and the 17 licensi'ng of source and by-product material is, in fact, 18 precisely the problem that brings us to the table this morning.
19 And I'm not sure that adding more great legal minds, 20 similarly untutored, to the party is going to be any help.
21 COMMISSIONER KENNEDY: Are you suggesting that that's 22 what we f ace when it gets to the cou"ts?
23 CHAIRMAN HENDRIE: Oh, I haven't even begun to 24 contemplate that possibility.
25 COMMISSIONER KENNEDY: I'.11 withdraw the question.
34 31.04.2 gsh I
(Laughter.)
2 MR. SHAPAR: I indicated that we had made -- we 3
made informal contacts with the Congressional staffers, and 4
all I can really state is there's uniformity there about these 5
issues.
6 Now as f ar as the outside is concerned, a le tter or 7
two has been appended to the paper.
And unle ss you want me 8
to get into it in more detail there seems to be a fairly 9
consistent, but not wholly consistent, position on the part 10 of environmental organizaticns.
.11 They are in f avor, as I read the letters, only 12 from these contacts informally, that they would like to see 13 the requirements on the part of the states insof ar as the 14
. milling is concerned, made immediately eff ective.
15 The states would not.
And at least one environmental 16 group that we checked would go the same way that our paper 17 r ec o mm e nds..
18 So there is no unanimity among e ver the environmental 19 groups.
20 So there are disparate views, as you very well might 21 expect, on the part of both the environmental groups and on 22 the part of the states.
23 COMM!SSIONER KENNEDY: What did those who are 24 immediately aff ected by all of this -- that is, the mill 25 ope ra to rs ha ve to s a y --
35 11. 0 4. 3 gsh i
MR. SHAPAR: I don't think we have rece ived, as 2
far as I know, any comments.
You understand how these
~
3 comment s came in.
The staff pacer was released, contrary to the commission's usual practice, ahead of time.
And when 4
5 it was received, certain people that were affected or were 6
interested in the matter, they naturally wrote in letters to 7
the commission.
8 We made no concerted effort to get outside comments.
9 CHAIRMAN HENDRIE: I think I have seen a couple --
10 it seems to me I have seen a couple of le tters from either 11 mill operators or acplicants for mill licenses.
12
.I notice we got,a telegram this mor~ f ag from a 13 solution mining group. In due time. I will ask about that. I 14 also noted that we have Mr. Garver from New Mexico, who is 15 waiting patiently for a chance' to put the state's point of 16 view in place.
Co.WISSIONER KENNEDY: I was just thinking, I'm 17 v
18 delighted to hear t'te states had some thoughts on the sucject 19 and wanted to express them. and environmental groups cid.
20 It just seemed, in pa ss ing. strange that no comment was made 21 as to the guy who was doinc all of this -- that is, the 22 miller.
23 He is the guy that's going to get the license.
24 MR. SHAPAR: I think it's fair to say that they have 25 not had time to react since the time the sta ff paper was made
36 31.04.4 gsh I
available.
2 I am sure they have very, very strong views, and 3
I assume they would not be in favor of concurrent j ur isdic t io n.
4 COMMISSIONER GILINSKY: What is the practical e f f ect 5
of concurrent jurisdiction during this three-year period on 6
the by-product material?
7 MR. SHAPAR: One practical effect is the commitment 8
of resources on the part of both the NRC and the states, and 9
particularly on the states.
10 CHAIRMAN HENDRIE: Hang on now. Wait a minute.
.11 With regard to the by-product material, the 12 tailings llcense, specifigally, there is the one place that 13 the three-year delay came through in the language of the act, 14 right.
15 So the states -- so it's not go ing to be concurrent 16 on tailings.
17 MR. SHAPAd On tailings. no.
18 CHAIR:4AN HENDRIE: What presumably would hacpen is 19 that the NRC would move into a situation where a mill is 20 licensed for source material by the state and have to issue 21 an NRC license for the tailings of that mi.11.
22 And we would hope, then, that in three years. the 23 state would be orepared to take over our tailings license.
24 Is that correct?
25 MR. SHAPAd: I believe not.
I think you said that
37 31.04.5 gsh I
the re is no cor. current jurisdiction over the tailings.
There 2
is.
3 CHAIRMAN HENDRIE: But the state's implementation is 4
delayed three years.
5 MR. SHAPAR: Correct. They have whatever authority they 6
have now over the tailings, and goes to my conclusion that it is 7
immediately effective ~with respect to us, there would be concur-8 rent jurisdiction; Ehe states' old authority now existing, and 9
new authority that goes to the NRC, thereby getting 10 concurrent jurisdiction.
.11 COMMISSIONER GILINSKY: What does that aean in terms 12 of somebody who's acplying f or a license right now?
13 MR. SHAPAR: It means the tailings would be 14 by-product material --
15 CHAIRMAN HENDRIE: He gets an NRC license for that 16 and he gets a state license for the source materials.
17
.COMMISSI0 DER GILINSXY: And what would he be doing 18 before we granted an NRC license?
19 CHAIRMAN HENDRIE: I a ss ume that we would have to 20 analyze it and 1.ssue an environmental impact statement.
21 MR. MARTIN: Just like we do on our own mills.
We 22 do an environmental impact statement and evaluate the 23 alternatives --
24 COMMISSIOJER GILINSKY: So this acclies even in 25 an agreement state.
38 31.04.6 g3h 1
MR. MARTIN: What we're talking about right now.
2 COMMISSIOJER GILINSKY In an agreement state.
3 someone who is filing an application now would have to file 4
an application with the state and with the NRC?
5 MR. SHAPAR: Yes.
If the state had a recuirement 6
at the present time with respect to the licensing tailings, 7
and Jack, I guess, can answer what the situation is in the 8
states.
9 MR. MARTIN: Yes. The law, I.think, also says the 10 st".te doesn't have to duplicate what we do.
So if we did it,
.I l we don't have to --
12 MR. SHAPAR: Duplicate our proceedings.
13 MR. MARTIN: -- if they didn't want to.
14 Bu.t basically, what would happen, and the agreement 15 s ta te s, is we would do the same evaluation that we're presently 16 doing in the states where we license directly for the 17 tailings.
18 CHAIRMAN HENDRIE: When you deal with the tailings, yo 're dealing with the principal e ff ects.
u 19 20 MR. MARTIN: Just about almost everything.
21 COUMISSIO.lER GILINSKY: And this 'vould apply to 22 renewals during this period, t oo?
23 MR. SHAPAR: I think maybe that's an overstatement, 24 Jack.
I would think -- it's not a one-on-one duplication 7.5 because you still have the saf ety aspects of the actuel
39 31.04.7 g5h I
milling itself. right?
2 MR. MARTIN: I think the Chairman is correct.
That's 3
a small protion -- there really aren't any big issues with 4
the mill itself.
It's not a big saf ety problem.
5 There are some emissions that are f airly easy to 6
control.
The major issue is the disposal of the tailings.
7 CHAIRMAN HENCRIE: Yes, how are you going to control 8
the radon.
9 MR. MARTId For example, the dominant consideration 10 where you would even site one of these things is can you
.11 site it so that the tailings can be disposed of properly?
12 COMMISSIONER GILINSKY: -What precisely then is 13 delayed during these three years?
Is it that after three 14 years the state itself would have to be conducting this 15 proceeding?
16 MR. MARTIN: Then they could pick it up.
17
.COMMI.SSIONER GILI NSKY: Under an amended agreement.
18 MR. MARTIN: Right.
Now from a practical standpoint.
19 we have taken a look at what's in the pipeline now and who 20 is going to be a ff ected and enecking into it.
21 COMMISSIONER GILINSKY: So, in effect, the tailings 22 will be regulated e ff ective immediately.
It's just that 23 for a three-year period, it will be done oy the NRC until 24 the state vants to pick it up within that three-year period.
25 COMMISSIONER KENNEDY: You said unless the state
40 31.04.8 gsh I
wants to pick it up some time during that ceriod.
2 MR. MARTIN: After that period.
3 COMMISSIONER KE.NEDY: Af ter, okay.
N 4
CO.VNISSIOJER GILINSKY: Oh, they cannot pick it uo 5
before the three years.
Okay.
But we would continue to 6
regulate it until they picked it up.
7 MR. SHAPAR Yes.
8 COMMISSIONER GILINSKY2 If they choose not to pick 9
It up at all, they don't have to?
10 MR. SHAPAR That's right.
.11 COMMISSIONER GILINSKY: I see.
12 MR. SHAPAR: There was one point mentioned before 13 that I said would be covered and was not.
And that was the la impact on the NRC and on the industry.
And Jack Martin 15 can sunmarize.
They've done some figuring on this.
16 CokNISSIONER GILINSKY: Let me just pursue this point 17 a little further.
IS I presune then the aill could not be sited until 19 NRC acproval had been granted on the handling of the tallings 20 p il e.
21 MR. MARTIN: I think that's a f air statement because 22 the mills say, usually ainost always what to do with the 23 tailings.
Su: on tne other hand --
24 CHAIRMAN HENDRIE: I suppose a gutsy operator might 25 go anead on tne speculation he could sell us on a tailings
41 31.04.9 gsh I
license later.
But I would think that would not be a very 2
prudent course.
3 MR. MARTI:18 These things are built co nc u rre n tl y.
4 You wouldn't build the mill first and then build the 5
tailings later.
6 In fact, I think most of the states now do not 7
permit construction to start until all of these issues have 8
been settled.
9 So you wouldn't, hopefully, wind up with a mills 10 built that we would later turn down the tailings location.
.11 I ' guess that could happen, conceivably, but I 12 think it's a pre tty remote -- there's been enough bad 13 experience with that that I don't.think there would be another 14 case come up.
15 COMMISSIONER KENNEDY: Could we rehearse again the 16 arguments for and against going f or legislation to clarif y 17 this murky situation?
18 MR. SHAPAR: Arguments f or and against.
Arguments 19 in favor of legislation would be that we have a very 20 ambiguous statute subject to varying respectable 21 interpretations.
22 Litigation is a good prospect.
We think we know 23 what tr a Congressional intent was, as best one can discern 24 i t a f te r-th e-f a c t.
And we think -- or I think that what 25 Congress intended was to give a three-year delay on everything.
42' 31.04.10 gsh i
The bill didn't come out that way.
2 If my premise is corre ct, then legislation would 3
seem to be a good way of handling a rathe unsatisfactory 4
s itua t io n.
Arguments against --
5 COMMISSIONER KENNEDf: Because if, indeed, that's 6
what the Congress wanted, we can't interpret the law that 7
way.
8 MR. SHAPAR: Well, the courts are the ultimate 9
arbiters of what the statute means, not the Congress.
10 Ultimate, in the sense that if there's controversy and 11 litigation, the courts will determine what Congress meant.
12 All I can do is try to predict what a court might 13 do.
14 COMMISSIONER KENNEDY: Yes, but we can't even start 15 with the assumption that it intended a three-year delay for 16 everything, as we understand the statute.
17 Isn't that co rrec t?
18 MR. SHAPAR: Yes.
19 COMMISSIONER KENNEDY: If. indeed, that's what we 20 think the Congre ss meant.
The only way we can be sure is to 21 get legislation to clarify it or wait for the court to do it.
22 MR. SHAPAR: I think I have to get off the track.
23 I think I understand what you're say ing.
I think that's what 24 Congress meant.
25 I think one has to differentiate that by sa ving wnat
43 31.04..ll gsh I
would a court reviewing this legislative record say Congress' 2
intent was.
4 3
I think what a court would do if it got this would 4
be reach the same conclusions that I reached in the pacer --
5 that the NRC's obligations are immediately effective and 6
that the rtates don't have to put it into ef f ect with 7
respect to the milling for three years.
8 That's what I think a court would say.
And in 9
reaching that conclusion, they would say that's what 10 Congress intended.
J1 That's.why I emphasize the word "I."
I think the 12 Congre ss intended.
It's not worth much, based on a very 13 confused legislative history.
I think Cor gress intended to 14 have a three-year-delay and I'm speaking only for myself, 15 and I don't think the court would agree, which is why I 16 came up w.ith the recommendation I did, very reluctantly.
~
17 COMNISSIONER KENNEDY: Okay.
Exc~use me for my 18 interrupting yo u.
19 COMMISSIONER GILINSKY: Well, let's see.
I'm not 20 sure I understood your last comment.
Aren't you saying you 21 thought the Congre ss intended a three-year delay on the 22 source material licenses?
23 MR. SHAPAR: For this reason --
24 COMMISSIONER GILINSKY: And your recommendat ion is.
25 in fact, to permit a delay?
44 31.04.12 gsh 1
MR. SHAPAR: Yes.
That's not the part I'm reluctant 2
about.
I'm reluctant about the conclusion which I also 3
reached, that the NRC's obligations are e f f ec t ive immediately.
4 I think Congress' intent, and I emphasize the 3
word "I" again --
6 COMMISSIONER GILINSKY: You're not talking about 7
bY-product material.
8 MR. SHAPAR: I'm talking about by-product material and.the NRC's immediate responsibility to assume jurisdiction 9
10 over the tailings as by-product material.
.11 I reach that conclusion reluctantly.
But I.think 12 a court would reach the same conclusion.
13 Remember, the main focus of the bill was on the 14 tailings hazard, not the mills.
And you're ge tting a very 15 anomalous result here.
The bill we submitted had a clear three-year delay 16 17 across the. board.
And there's nothing in the legislation --
18 COVMISSIOiER GILINSKY: I see.
It would not even 19 have had NRC licensing during the three-year period.
20 MR. SHAPAR: That's right, and there's nothing in 21 the legislative history -- and by the way, the se changes were 22 made in the last hectic davs of the session.
There was 23 nothing to indicate that there was any deliberate intent on that 24
- he part of the Congress to change the basic concept 25 had always been ther, whicn was to have a three-year delay
45 31,04.13 qsh I
across the board.
2 COMMISSIONER GILINSKY: Let me ask you something else.
3 Is there any question that it be under the three-year period?
4 The states would have to apply these expanded procedures in 5
the licensing of the source material.
'6 MR. SHAPAR: No question at all.
7 COMMISSIONER GILINSKY: So that would come in at 8
t.1e end of the three-year period.
9 MR. SHAPAR That's correct.
10 COMMISSIONER GILINSKY: That was always quite clear.
Ji MR. SHAPAR: Both these questions deal only with the 12 interim three-year period.
13 CHAIRMAN HENDRIE: And in any state where they were 14 unable or fe.it that they didn't want to implement the full 15 array of procedures and standards that NRC uses then the 16 statute says we would recapture from them that portion of 17 their agreement authority, and then we would do the licensing 18 for mills and tailing piles directly.
19 It seems to me that this might be an appropriate 20 place to hear how --
21 COMMISSIONER KENNEDY: Setore we do, though, can we 22 see the other side of the argument?
23 MR. SHAPAR Oh, the argument against the legislation.
24 CHAIRMAN HENDRIE: Sorry.
23 COMMISSIONER KENNEDY: Two more minutes.
46 31.04.14 gsh I
CHAIRMAN HENDRIE: We have to wait for the seesaw 2
to go back dcwn.
We tilted it uc.
Now we've got to get 4
3 it back down.
4 CovMISSIO:iER KEMiEDY: I also want to hear wnat 5
Jack and Boo Ryan have to say about the legislation since tnev 6
have different views.
7 CHAIRMAN HENDRIE: All right.
8 9
10 11 12 13 14 (3-15 16 17 1S I9 20 21 22 23 24 25
47 31.05.1 pv 1
MR. SHAPAR:
The argument aga inst the legislation is 2
that there is no assurance what the outtone of that legislation 3
will be.
One can view it either as a clarifying anendnent 4
which should be relatively unoojectionable, if we're right on 5
what we think Congre ss' intent was..On the other hand, it may 6
turn out, remembering that three committees are involved, that 7
these committees have dif ferent views as to what was intended.
8 Thereby you could have an area of controversy and no assurance 9
that the legislative result will be what we hoped that it would 10 be.
J1 Beyond that, if it gets hooked up with our 12 authorization bill -- and 0GC pointed this out -- it could 13 become -- I am not saying it would, but it could become --
14 controversia.1 and thereby hold up the authorization bill.
I 15 think that point is well-taken.
16 So, I.think those are the arguments on the other 17 s ide.
18 COMMISSIGNER KENNEDY:
Jack, what is your view?
19 MR. MARTIN:
Well, I would subscribe to Howard's 20 other argument that this was a very contentious billi in fact, 21 all of this happened in f act in the last few hours cf the 22 session.
A great daal of back and forth.
And I believe we can 23 1ive with the interpretation without undue disruption to the 24 industry or the state.
And it would probably be better, in our 25 v ie w, to proceed with the interpret ation that we have made and
48 31.05.2 pv i
not open the thing up again.
2 Furthermore. I woulo think going back for 3
legislation 91ght result in just more uncertainty for probacly 4
several' months.
I have no idea how long it would take to 5
finally get an answer.
6 Now, our view is that i f w e --
7 COMMISSIONER KENNEDY:
On the other hand, couldn't 8
we go ahead on the present presumption, while at the same time 9
submitting clarifying legislation to confirm the judgment which 10 we have already made in our proceeding?
.11 MR. SHAPAR You could, but you pay a price f or it.
12 If we got the program mounted, whatever that effort was, it 13
.would be a small amount of time, and I think that practically 14 would work against the prospect for success of the enactment of 15 the legislation.
16 MR. MARTIN:
I.think there's another important point 17 to note here.
Sort of the timing window, where, at present. I 18 think we said in the paper, if we move cuickly, we think, from 19 a prac tical standpoint, that there would only be two companies 20 impacted.
That's the Bocum Company of New Mexico, and the 21 Union 011 Company of Arizona.
They are right in the review 22 cycle now.
There are three other companies -- Gulf and 23 Phillips in New Mexico and Pioneer Nuclear in Colorado -- that 24 expect to start construction in about the mic 'cEOs.
If we 25 were to move cuickly, we could probably have those wrapped uo
49 11.05.3 pv i
so it didn't impact the construction date.
2 The ones in progress now. Secum is heavily tied up 3
in environmental issues and hearings right now -- in part.
4 4
which we helped the state raise.
And the one in Arizona for informed us they have decided to delay the whole pro ject 5
6 business reasons.
So, if we move quickly, de could wind up with maybe 7
8 just affecting one oroject that is already tied up in If this environmental issues now and not a ff ecting the rest.
9 were to be dragged out several months, then legislation would 10 confirm the staff **s views then we would have several more delays.
.11 12 So, I think that's a consideration here, at least in my mind.
13 MR. SHAPAR:
By the way, I think Jack raises a very significant point that I should have raised before.
When you 14 15 talk about legislation, there are two kinds of legislation you 16 can be talking about One type of legislation is to confirm the, conclusions which I hear and thereby dispel the uncertainty 17 18 and the doubts.
The other legislation is to go back to the NRC's original approach, saying a three-year delay for 19 20 everything.
2i COMMISSIONER KENNEDYr Bob.
22 MR. RYAN:
A couple o f things, Mr. Chairman.
23 The idea that the bill was contentious, I think, is Witne ss the overwhelming number of members who 24 just not so.
25 voted for final passage.
Whatever contentious nature there was
50 31.05.4 pv i
to Title II, it seems to me, was cured bv the idea of puttina
' ~
2 in Title I to put in a big stock of money for correcting old
(
3 abandoned mill sites.
N 4
The problem of the bill, as I see it, is faulty 5
draf tsmanship, probably accountable for the f act that it was 6
passed in the thrust of the closing weeks of the last Congress.
7 It's an unusual bill in the sense that there was no conference 8
report.
I don't regard it as a contentious matter to ask 9
the Congress to cure an apparent ambiguity in the face of an 10 ins trume nt like this.
.11 I' don't think it's necessary to wait for an 12 author ization bL11.
With,the great volume of legislation, it 13 received from the environmental public ' works.., committee in the 14 Senate, other committees -- certainly on the Senate side 1 think 15 it germane to this problem to add a simple one-line
~
16 amendment to cure what is, it seems to me, a demonstrable 17 defect in the statute.
18 My problem with the f ailure to ask for some kind of 19 leglslation is that we are jeopardizing the agreement state 20 program.
The agreement state program is a valuable one, a 21 useful one, of proven character.
I think you will find some 22 difficulty by the agreement states -- more than that not only in 23 agreement states where we have mills, but other agreement states.
change of signals af ter the bas ic agreement was cut.
24 It is a
25 I think it's entirely possible that either one of
51 11.05.5 pv i
two things will happen either some states voluntarily 2
throwing in the agreement states programs or alternatively, 3
requiring it to be thrown in because of the inability of the 4
states to conply with the reouirements.
That's it.
5 CHAIRMAN HENORIE Now I would like to hear from 6
Mr. Garver and see what a state view is.
7 MR. GARVER:
Thank you very much. Mr. Chairman.
8 My name is Bruce Garver.
I am an assistant attorney general for the State of New Mexico, and among my duties I am 9
10 a chief attorney for the State's environmental improvement
.11 division.
I would like today to present a short preliminary 12 13 statement of the State in response to the staff paper, which 14 we have had since February 26.
The State would also like to 15 submit a more formal wri.tten document sometime, hopef ully, in 16 the next two weeks. and would request that the Commission defer 17 its final decision on the interpretation of the 19 78 amendments 18 until they have had a chance to review that document.
19 CHAIRMAN HENORIE:
Yes, I noticed that that recuest for def erral was also included in Governor King's letter to the 20 21 Co mmi ss ion.
22 MR. GARVER:
That's co rrect.
New Mexico basically agrees with one of the 23 and that is the 24 recommendations expressed by Mr. Shapar tocay, 25 recommendation tnat the procedural recuirements in section 2740
52 31.05.6 pv I
of the new Act be def erred for three years to source material 2
licensing, as well as by-product material licensing.
3 de believe that -- we know that the intent of the 4
new law is to regulate or expound the regulation of cy-product 5
materials to include mill tailings, and it specifically 6
addressed that mill tailings was not intended to disturb the 7
regulation of source materials.
Therefore, we do agree with 8
.that conclusion.
9 We, however, have a different point of view 10 concerning concurrent jurisdiction.
It's the State's position
.11 that concurrent jurisdiction is not mandated and would be 12 Inappropriate under the new law.
The legislative history is 13 not clear on the matter.
However, the history of the Atomic 14
. Energy Act is very clear.
The 1978 amendments are simply 15 amendments to the Atomic Energy Act.
Section 274 of that Act, 16 either the State, under an agreement, or the Nuclear Regulatory 17 Commission, one or the other, has jurisdiction for licensing of 18 source materials, by-product materials, and special nuclear 19 materials not in sufficient cuantity to f orm a critical mass.
20 There is no precedent anywhere in the Atomic Energy 21 Act for concurrent jurisdiction.
The 1978 amendments do not 22 provide specifically for concurrent juc is dic t ion.
23 What they do do is provide that mill tailings are 24 now considered source material.
Howe ver, in section 204H(1) 25 I would like to read that section for you.
It provides as
53 31.05.7 pv i
follows On or before the date three years after the date of 2
3 enactment of this Act, notwithstanding any amendment made by 4
this title, any state may exercise any authority under state 5
law respecting by-product material, as defined in section 6
.ll(e)(2) of the Atomic Energy Act of 1954 -- and this is the 7
important part -- in the same manner and to the same extent as 8
permitted.before the enactment of this Act.
In the same manner 9
and to the same extent.
New Mexico has included in its source material 10
.11 licenses since at least July 15, 1975, the following language.
12 I am reading from the Schio license, which was issued on that.
13 date 14 "On the radioactive material element in mass number 15 covered by.the license include all natural radioisotopes 16 encountered in the milling of natural uranium.
This would 17 include not only radium and thorium, but the daughter products 18 and residual uranium in the tailings."
19 Condition 15 in the Schio license reads as follows 20
" Mill tailings shall not be transf erred from the site without specific prior approval of the agency obtained through 21 In other words, to 22 application for amendment of this license."
23 move the tailings, a license amendment is required.
New Mexico 24 has been licensing tailings.
Under section H(1) they are 25 entitled to license these tailings in the same manner and to
54 31.05.8 pv i
the same extent as they have been since 1975 during the 2
three-year interim period.
3 Concurrent jurisdiction v ould drastically alter the 4
effect of a state license.
No longer could a mill ocerator get 5
his state license and operate his mill.
It would have to get a
'6 license also from NRCs therefore, concurrent jurisdiction goes 7
against not only the general and long-standing separation of 8
either state or NRC jurisdiction, but it also goes directly 9
against section 204HCI) of the 1978 amendments.
10 There are several practical problems with
.11 concurrent jurisdiction in addition to the legal problems I 12 have expressed.
One of them is that it would create confusion 13 in the licensing process.
Although the substantive 14 requirements. of the State of New Mexico and NRC are 15 substantially the same, the procedural requirements, the 16 processes for issuing the licenses, are radically dif ferent.
17 New Mexico does not prepare a formal environmental impact 18 statement.
However, it does require a licensee submit an 19 environmental analysis.
This analys is is then circulated, not 20 only in the radiation protection section of the environmental 21 improvement divis. ion, but also the air cuality section, the 22 water quality section, and tne solid and hazardous wastes 23 section.
Various permits, both state and federal -- epa 24 included -- are recuired before e uranium mill can operate.
25 The state, although not considering an environmental
55 31.05.9 pv i
impact statement, the impacts on water quality requires that a 2
groundwater discharge plan be acproved as a prerequisit t to 4
3 licensing by the environmental improvement division.
4 This discharge plan must be submitted by the 5
l ic e ns ee, the a pplicant, or the mill operator, and it must 6
establish that groundwater will not be polluted in excess of 7
.the specific numerical standards that the state has adopted.
8 The NPDS permit system requires any discharge to 9
waters of the U.S., the surf ace waters of the U.S.,
be 10 accompanied by an e ff ective and enforceable permit granted by
.11 EPA.
The state participates in this permit situation.
We 12 certify to the EPA requirements under state law, which are then 13 included in the permit.
14 In order for a mill to operate, if any particulates
~
will be discharged, an air quality permit is required from our 15 16 agency.
17 We do not believe any environmtal gaps will be had 18 during the three-year interim period by the state maintaining 19 exclusive jurisdiction over tailings, and we feel it is 20 consistent with the intent of the law.
21 Another disadvantage is the possible dispute between 22 the NRC and the state over a mill license or a tailings 23 license.
These discutes are not desirable.
Presently, NRC is cons lted, asked for comments, and the state works very closely u
24 25 with the Commission staff in reviewing its license
56 131.05.10 pv 1
applications, and we feel one lead agency is a much better end#5 2
mechanism for handling the mill license or a tailings license.
3 4
5 6
7 8
9 10 31 12 13 14 15 16 17 18 19 20 21 22 23 24 25
R 3131 57 IMI
-6 mte 1 1
. There would also be an unwarranted waste of federal 2
monies -- a double expenditure.
Two agencies would be doing i
3 the sane work, reviewing the same application, albeit through I
4 l dif ferent procedures.
5 Instead of wasting this money on repeating the 6
states' procedu ts in a different form, we would suggest that 7
the Commission instead expend its resources in establishing 8
new standards as mandated under the Tailings Act, by comple ting 9
the guidance and giving the states and the Commission further 10 1 and clear guidance on just how tailings are to be managed, 11 by developing guidelines for the. states and cooperating with 12 the states in amending states ' agreements by the 1981 deadline 13 so that there will be no gap in the transition period, the 14 states can nake a full transition with the full authority under 15 the new Tailings Act.
1-6 That's the end of my statement.
I will be glad to 17 answer questions.
18 CHAIRMAN MENDRIE:
Questions?
{
19 1 COMMISSIONER BRADFORD:
Mr. Garver, can you just l'
20 summarize for me what changes in the licensing process do you 21 l1, think Congress actually intended to achieve with the Mill:
I 22 l Tailings Act?
l 1
23!
MR. GARVER:
Immediately?
i 24 COMMISSIONER BRADFORD:
Over the next three years.
Am-Fecal Rmorurs,1 c.
25 MR. GARVER:
Over the next three years, Congress l
l I
58 te 2 1
set out very specific procedures and considerations which the 2l states have to gear up for and enter into an amended agreement,
I 3l with NRC in order to continue.
l I
I 4!
COMMISSIONER BRADFORD:
But it would be entirely i
5 changes in the state licensing process?
6 MR. GARVER:
For an Agreement State, yes.
It's 7
our interpretation of the Act that there is no direct regulatory 8
role given to URC in an Agreement State during the three-year 9
interim period.
10 I COMMISSIONER GILINSKY:
And there would be no actual 11 changes during this three-year period, is that what you are 12 saying, in licensing procedures ~or standards?
13 MR. GARVER:
No, I think there 's going to be a 14 gradual process of changes aired at complying with the 1981 15 deadline requirer.ents.
I 16 COMMISSIONER KEMNEDY:
But you are asserting those l
17 changes are not mandatory until the three years.
i 18 MR. GARVER:
That's correct.
l 19 1 COMMISSICITER BRADFORD:
In essence, your view of the i
i 20 I bill that was passed is that it was essentially the bill that I'
i 21 the URC subnitted in the first place?
22,
MR. GARVER:
As far as the timing.
23 '
CHAIRMAN HENDRIE:
Or at least ought to be read that 24 way.
Aa-rene neemn, w. '
l 25,
MR. GARVER:
Y es.
I
mte 3 59 CHAIRMAN IIENDRIE:
Do yo.' think you could win a case?
i j
MR. GARVER:
Sure.
2 3
(Laughter.)
l I
MR. GOSSICK:
Hire hin.
Hire him.
4 i
CO!UtISSIONER KEIRIEDY:
Can you express a view as to 5
6 the desirability of legislation?
MR. GARVER:
The state would not be opposed to it.
7 CO!QiISSIONER KE!RIEDY:
It would not be opposed to it..
8 MR. GARVER:
Not at all.
9 10 1 COMMISSIONER KENNEDY:
Would it favor it?
11 MR. GARVER:
We're not in a position to judge what 12 the outcome would be.
If the Commission judged it would be relatively a good risk, we wculd be all for it and would 13 14 certainly lend our support.
15 MR. SHAPAR:
I would like to compliment a fellow l
i 16 member of the New Mexico bar for a very persuasive argument.
~
l 17 MR. GARVER:
Thank you.
l l
18 (Laughter.)
19 COMMISSIONER GILINSKY:
We keep discovering things 20 1 about Howard.
I CHAIRMAN HENDRIE:
What it suggests is, he is prepared 21 to move out and take up other practice at a moment's notice.
22 23' I hadn ' t cuite realized that.
24 COMMISSIONER KENNEDY:
That's sensible.
Ass-Federal Reporters, Inc. !
25 (Laughter.)
60 te 4 1
CERIMUUI HENDRIE:
I don't criticize, you understand, 2f since I am licensed to practice engineering in New York and I
3' California, and I maintain those licenses with some care.
I I
4' can appreciate your New Mexico bar relations.
i l
5 Let me suggest if people do not have inmediately in 6
mind a pressing question, I would like to have somebody explain 7
to re the cuestion of solution of the questions that cone up 8
and the conclusions you come to in regard to solution mining 9
of. uranium.
And I guess dhe questions are, does it fall under l
! the law or doesn' t it f all under the law?
You know, what does j
10 3
11 all that mean t o us?
12 Does somebody care to take a cut at that?
13 MR. MARTIN:
My impression was, having read the 14 record several weeks ago, dhat I don't believe it is discussed 15 in the Act itself.
But I an certain that there is an exchange i
16 in the record between several of the Senators where it was 17 made clear that it was not covered.
I i
18 CO!?iISSIONER KEmIEDY:
The in situ solution mining?
I i
19 i MR. MARTIN:
That's my recollection. ~
l i,
20 CHAIRMAN EENDRIE:
That it was not covered?
I i
e 21 MR. MARTIN:
That's my recollection, because once you 22 leach something underground, I guess if you stretch the I
23 l imagination, you could consider that tailings.
And I believe 24 ! the question came up in the Senate, where I believe it was Am-Fewal Reo,nn, IN.
25 Senator Hart said that it was clearly not their intent to i
i
tte 5 61 1
include solution mining.
2 Now, if there are residues on Ehe surf ace, which 4
3 there will be some, but very small, they would probably be I
i l
l4' covered.
They typically are trucked of f to a mill sonewhere l
5 and put with the tailings.
So at least the solution mining operations we have licensed have no residues on the sur' ace f
6 7
to deal with.
8 But I think we have to go back and search the record 9
a little more clearly.
10 MR. SHAPAR:
I think Marty Malsch can add a few 11 words on this. -
12 CHAIRMAN HENDRIE:
But let me ask, we do license I
13 at least one solution mining operation.
14 MR. MARTIN:
Two.
15 CHAIRMAN HENDRIE:
We license twoi These people havet i
16 to have a source material license, because we have interpreted :
17 the process of sending fluid down, leaching out the uranium and i
18 bringing it back up as being a processing step, I take it.
l 19 MR. MARTIN:
Well, no.
I think the way you get into 20 that is that you do wind up with source material on the surf ace l
21 af ter your ion exchanges, you wind up with yellowcake, which is 22 source material, or slurry.
I 23 l CHAIRMAN HEUDRIE:
I think that's where I come out -,
i 1,
24 l MR. MARTIN:
And the things that are below the A > F e u c a n m n m.inc,
25 -
ground, the only reason we get into them is it's hard to draw l,
i
ite 6 62 1
a line right at the ground.
We have evaluated the whole thing.
2 CHAIRMANIEMDRIE:
But if solution mining in fact l
produced a product on the ground which was just the same ore 3
i
\\
l 4l as it existed down belew, we wouldn't license th at.
That would I
l 5
not be a processing.
It would not produce a source material 6
under the defini. tion.
Af ter all, that's what a regular dry 7
mine does, produces -- just brings the ore up and sits it on 8
the surface, and that's not a processing which yields a thing 9
called source naterial.
But solution mining does produce 10 I source material; they do need a source material license.
11 MR. MARTIN :
I would think they could conceivably I
12 produce byproduct material also, if they were to take -- for i
13 ex aple, during the cleanup stage, the scheme usually proposed 14 is to keep pumping the water, recycling it through ion 15 exchangers, where you may wind up with all. sorts of sludge, i
16 selenium, radiun, that sort of thing.
I I
17 Conceivably, that could be impounded somewhere and 18 left.
I would imagine that would cualify as byproduct material.
19 CHAIRMAN HEMDRIE:
" arty?
f 20 MR. MAESCH:
The definition of byproduct material is 21 that it is the waste produced by the extraction or concentra-I 22 tion of the uranium or thoriun from any ore process, primarily l
23 for source material or content.
That also fits solution 24 f mining, waste from solution mining.
The problem is, there is 4 =.r e c a n n e n m.inc ;
25 l an exchange of remarks d.uring Congressional consideration of the i
l 1
63 te 7 1
bill that, as I recall, said something to the effect tha t,
I i
2' well, it nay be covered, but we have to recognize what we really l
3' had in mind here was stuff on the ground in typical mills,
'1 l
4i above-ground, not solution mininc.
I t may need some kind of I
h 5 f general licensing or exemption or something to accommodate the 6
unique conditions of solution mining.
7 I don' t think they've gone into this in great de tail.
8 They're still thinking about it.
It may turn out what Jack has 9
said is correct.
We would license, regulate and control the I
10 stuff above ground, somehow exempt or regard as beyond our II authority, what's left below ground.
12 But I don't think it's been talked about completely.
I' 13 CHAIRMAN HENDRIE:
So I'll regard solution mining as 14 still -- we still don't have, then, a definitive. recommendation 15 l~from ELD on how we ought to treat solutinn mining.
But as a i
16 practical matter, recognizing that the tailings are the principal problen in d:e milling -- mine and nill operation, 17 i
that a process that doesn't produce quantities of these is 18 i
absent the severest effect that we find in the normal practice, '
19 it seems to me then considerably less concern about where this 20 21 fits into the picture and about how it's treated.
l 22 j Other questions?
23 )
Well, a good one would be, all right, where do we go 24 '
from new.
So let me recommend that.
j A=4 ens namnm. inc.
25,
COMMISSIONER KENNEDY:
I could make a suggestion.
t l.
l i
r
ite 8 64 1
(Laugh ter. )
2 CHAIRMAN HENDRIE:
Let me recommend where we go from I
3I here.
I'm a little worried about where your suggestion would f
4; be that we go.
5 (Laugh ter. )
6 CO!ciISSIONER KENNEDY:
It depends on the subject.
7 CHAIRMAN H ENDRIE:
I think there is a sufficient 8
complexity here so that even apart from what seemed not unrea-9 sonable requests to allow some time for further comment from l
10 our friends in New Mexico, it seems to re we ought to deliberate 11 a bit before we come to some decisions.
12 Now, at least a couple.of weeks strikes me as being 13 needed, and I wondered what your thoughts might be on the 14 time and what we might do to collect any views in addition to 15 the State of New Mexico, and how we might then round the whole i
16 process up.
17 CO!'MISSIONER KENNEDY :
My view is two is as a 18 minimum.
And I believe we ought to go specifically to the l
19 states other than New Mexico that are directly affected and l solicit any views which they may wish to exprass on the record; i 20 I
21 and secondly, that we pursue with some appropriate level of 2
i 22,
interest the interest of the directly af fected miners and 23 !
millers, in order that, since we have views.excressed by some i
24 :
parties who are interested in the matter, we have a represen-i Aaseaunmarmt.w.
I 25,
tative sample of views at least of all parties who would be
~
I i'
i i
k
te 9 65 interested and af fected by the whole question.
And thirdly, I would suggest that in this interim 2
period, it would be helpful if I could see a draft of this 3
i minor language amendment which would clarify the situation, 4
I were we to go ahead and propose to submit something.
5 6
MR. SEAPAR:
Question:
As I indicate on my last point,.there were two ways to go on this legislation.
7 COMMISSIONER KENNEDY:
Both pieces of language would 3
9 be useful.
10 1 COMMISSIONER GILINSKY:
I would bt interes ted to know, I
if we wait to reflect on this, how would this affect any ongoing 11 l
cases that we might otherwise get involved in?
In other words,;
12 is anything going to get licensed that would otherwise have to 13 14 involve the NRC?
Would this delay our work in some way?
15 MR. MARTIN:
I don't think anything is going to be i
i 16 licensed in the next couple of weeks.
17 COMMISSIONER GILIUSKY:
Well, i f w e --
l t
18 tiR. MARTIN:
It would start probably, at some point, 19 impacting.
Let's say eventually it cane out that the s taf f ts t
20 interpretation is the way we want to go, while, as I mentioned,
i there were three nills -- Gulf, Pioneer Nuclear and Phillips --
21 l in New Mexico and Colorado that want to get started on construc-22 i
1 23 I tion about midyear next year.
And if we don't get cracking on 24 writing environmental impact statements pretty soon, we're not
{
Am Fewei Reorters, lm 25 going to have it done,
j l
Mte 10 66 1
CD11MISSIONER GILINSKY:
This is midyear 19807 2
MR. MARTIN:
Right.
So you kncw, we have shortened 3l our time period on doing those things considerably.
But a year i
4l is still a pretty short fuse, and if we go on another month or :
l 5
two and it comes out that the staf f's interpretation is right, i
6 then there will be impact.
There is some press of time.
7 CHAIRMAN HENDRIE:
Peter, what is your view?
8 COIDiISSIONER BRADEORD:
I'm all for avoiding bureau-9 cratic delay.
10 I (Laughter.)
11 COMMISSIONER KENNEDY:. I'm delighted to hear that.
12 I think I've made a convert.
13 (Laughter.)
14 CHAIRMAN CENDRIE:
You may work up to a majority here 15 at some point.
I 16 COMMISSIONER BRADFORD:
I was going to say that the 17 process of soliciting all these outside views seems to me to 18 be likely to create the situation that --
}
19 CO!!!iISSIONER KENNEDY:
It also is likely to provide i
20 for due process, which is useful.
j 21 COIDiISSIONER BRADFORD:
Well, you're going to start i
22 sounding like me, and I'm going to start sounding like you.
i 23 Due process can sometimes be a cover for a delay.
24 COMMISSIONER KENNEDY:
Only when it applies to one j
Ac..f.oerei a. corms inc.
g 25 '
side, I take i.
i i,
h
te 11 67 i
l i
i 1!
COM!iISSICUER BRr.JFORD:
Of course, i
l I
2 (Laughter.)
l i
4 3
CHAIRMAN HE!'DRIE :
I wonder, Peter, talk about an 1
i 4' arcane field, I can hardly bear to become the sort of icw-grade i.
~
t 5i expert that I apparently an going to have to become in mill i
1 I
6 [ licensing legislation, in order to make some decisions here.
I 7l
. Clearly, the Agreement States that have mills in them I
8i or prospectively might have mills in them are interested.
The 9
operators, the mill operators, our present licensees and people i
e i
10 we know, are going to apply are obviously interested.
We have i
had -- I've seen several pieces of correspondence frem environ i
11 f
12 ! mental groups.
13 I wonder if the field of likely cernenters is so enormous that we could not adopt some fairly rapid com=unication; 14 i
I 15, scheme for asking for comments and say, lock, if you can get i
16 f somethi g to-us in a couple of weeks, why, we would be glad to I
17 { have it and would like to receive it.
18 j But I would like to steer clear of a f airly -- of a i
19 1 formalized notice and ccm.ent period, dth formal no-lces -
i 1
20 CO!S1ISSIONER KE!!NEDY:
I didn't suggest that.
I 21 suggested a telephone call to the governer's offices of three 22 l or four states, which is what we are talking about, and to simply 23; notify the relative handful of mine and mill cperaters who are 24 affected.
I mean, surely we can do that, if we can make it Wederal Recornes, im 25 known to the environmental creanisat:.cns as eas:.lv.
It's a i
i u
i
u 1
mte 12 68 1
30-minute job.
2 CHAIRMAN IIENDRIE:
Ne have a good idea who the i
o I
3i environmental groups are that have commented in the past on i
l this kind of thing, are interested in it, and I would think --
-i l
5l how does diat s trike you, Pe ter?
You know, we're not dealing I
6 with a rulemaking here.
We're trying to come to a decision and 7
we're looking for a way to say, well, New Mexico said, we would I
8 like a couple of weeks to come and give you an opinion.
I think I
I 9
that there may be other people that usefully could comment.
1 i
10 1 think we can contact them in a hurry.
The telephone seems to l
11 me to be a fine mechanism, for this.
12 Why don't we ask the staf f to do that?
I 13 COMMISSIONER BRADFORD:
Is that a process, Jack, that i'
you think can be turned around and brought back to us in less 14 15 than a month?
16 MR. MARTIN:
Oh, I think so.
17 COMMISSIONER KENNEDY:
I!ow about two weeks?
18 MR. MARTIN:
I'll certainly --
19 COMMISSIONER KENNEDY:
Or two and a half weeks.
We'll give you a half a week af ter you receive New Mexico.
20 21 CHAIRMAN IIENDRIE:
When you call somebody on the
! telephone, you're going to have to give them two weeks.
22 I
23' COMMISSIONER KERIEDY:
I don't think so.
Why not 24 '
give them a week or ten days.
If he 's really serious about it, Am FMwW ReorMrs, lN.
25 ;
he can produce it in a day.
i i
te 13 69 CHAIR!WI HE!!DRIE:
I have the gravest fear that some '
1 2l body might apply those standards to the Commission, in which r
i case we would go into deep paralysis.
3!
I i
CO!TISSIOIIER :T!IIIEDY:
I think it would be a great 4
t idea.
I don't think you can do it, but I think it would be l
5 worth a try.
6 CHAIR!W11E1IDRIE :
I think clearly the thrust is to 7
Then we will try to get things compiled and back together.
8 need to meet again and hav e summaries of the comments, and I 9
i daresay a recap on today 's discussion, to remind us of all 1
10 11 these things.
Vic, I see you are trying to make a matrix with regard 12 I
to the licensing authorities, the states and the times.
You j
13 14 lack a certain dimension.
I think you are looking at a hyper-i ellipsoid, is actually what if you're looking at.
But if you 15 16 could sketch that out, that;mi:ght be a helpful graphical i
17 presentation of the situation.
j And I think it wouldn't be amiss to keep, during this 18 19 period, to keep aware of what the pertinent professional people 20 might think about the matter.
l One other thing I think it would be useful to ask 21 Jack Martin to do, and that is, against what is certainly a 22 the 23 1 reasonable possibility that we will end up concluding that i
24 l least risky and damaging of a number of not too happy courses Ace Federal Reportees, Inc. !is the one that Mcward has suggested, I think, Jack, you ought 25 l
i
.te 14 70 i
to begin to lay some contingency plans for going ahead with l
2 those impact statcrents, because we may very well conclude tha t',
t 3i for the reasons nentioned, legislation is either likely to take '
i i
4 too long or be uncertain of outcome that we wouldn't want to l
5 j ust wait and depend on it, and that of the various other l
6 courses, that the one Howard has recommended is, on balance, l
7 the leas t undesirable, I guess would be the way to characterize '
8 it.
And in that case, I would hate to have seen you lose 9
i 1
10 i any more time than was absolutely necessary in moving ahead i
11 with those licensing actions.
12 Any objections to that?
i 13 (No response.)
14 okay.
Thank you very much for an enlightening, if not i
15 necessarily a merry, morning.
And thank you, Mr. Garver, for 16 your presentation.
r.- 6 17 (Whereupon, at 11:20 a.m.,
the hearing was adjourned.)
18 i
19 i
20 i
21 l
t 22 l l
23l 24 i I
Aa-FewW Reorwes. im.
25 I