ML19269D907

Transcript of 790509 Public Meeting in Washington,Dc Re SECY-79-88 & U Mill Tailings.Pp 1-52

ML19269D907
Person / Time
Issue date:	05/09/1979
From:	Bradford P, Gilinsky V, Hendrie J NRC COMMISSION (OCM)
To:
References
REF-10CFR9.7 NUDOCS 7906200305
Download: ML19269D907 (52)

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DISCLAIMER -

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This is an unofficial transcript of a meeting of the United Statas Nuclear RegulatoryIccmission held on 9 May 1979 in the Comission's officas at 1717 H Street, N. W., wasniegton, 0. c.

The meating was open to public attendance and observation.

Tn,is transcrip,e has not been reviewed, corrected, or edited, and it may contain inaccurscles.

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' The transcript is intended solely for ceneral infoma.tional purposes.

As provided by 10 CFP. 9.103, it is not part of the formal or informal record of decision of the matters discussed.

Expressions or,, opinion in this transcript do not necessarily reflect final deta: ninations or beliefs.

No pleadino or other paper may be filed mth tne commission m, any proceeding as.t!d result of or addressed to any state ent or arg.nen, contained herein, except as the Ccmission may authorize.

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UNITED STATES OF AMERICA

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NUCLEAR REGULATORY COMMISSION 3

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Public Meeting 7

DISCUSSION OF SECY-79 URANIUM MILL TAILINGS 8

9 f

10 Room 1130 1717 H Street, N.W.

11 Washington,D.C.

12 Wednesday, 9 May 1979

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13 i

i 14 Hearing in the abovc-entitled matter was convened, 15 pursuant to notice, at 2:10 p.m., JOSEPH M.

HENDRIE, r

i 16 Chairman, presiding.

l I

17 pRESENT:

18 JOSEPH M.

HENDRIE, Chairman 19 VICTOR GILINSKY, Commissioner 20 PETER BRADFORD, Commissioner I

21 JOHN AHEARNE, Commissione" 22l Messrs. Chilk, Malsch, Gossick, Martin, Stoiber, 23 l Bickwit and Ms.

i Grammer.

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2252 072 ACs. Federal Reporters, fx.

25 l II i

5 i

3 1

EEEEEEElEEE 2

CHAIRMAN HENDRIE:

Why don 't we come to order.

3 The Commission meets this afternoon to discuss some l

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l 4

matters connected with the uranium mill tailings bill passed i

5 at the last Congress.

There are some problems of implementa-6 tion of the provisions of that bill.

7 At a previous discussion of the item, we asked that 8

the Staff deal with a. series of questions, and I wonder, Lee, f

9 if you could have the Staff sketch those out for us now?

How 10 I the answers come down?

11 MR. GOSSICK:

Fine, Mr. Chairman, j

12 There were four items that came out of the meeting on

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13 ' March 7.

Mr. Malsch will cover most of taese, including the I

14 question which had to do with low-solution mining, views of l

15 the states and the people that are concerned with this matter.-

4 16 COMMISSIONER GILINSKY:

Would you speak up a little 17 bit, Lee?

18 MR. GOSSICK:

Sorry.

Is my mike dead?

No.

19 And also, to discuss the legislation, or the need 20 for legislation.

Of course, you have seen the letter we have 21 recently received from the Congress giving us their intepreta-22 l tion of the intent behind the language of the bill.

i 23 l

Marty, why don't you go. ahead.

t 24 'l MR. MALSCH:

Okay.

i Agg.Federsi Recorters, Inc. gf 25 ll Let me introduce first, Elisa.Grammer, sitting here l

I

!i 2252 073

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to my left. She is an attorney in.OELD, and wrote a substantial mm 2

Portion of the first letter, and almost all of the more recent l 3

Paper.

I 4

CHAIRMAN HENDRIE:

Good to see you.

l 5

MR. MALSCH: The Commission met on this matter:on l

6 Wednesday, March 7, specifically met on SECY-79-88, which dealt 7

with the timing of certain requirements of the Uranium Mill 8

Tailings Radiation Control Act of

'78.

The proll.em dealt with 4

9 dates of effectiveness of the Act.

10 1 One section of the Ac made the provisions of the 11 regulatory program dealing with tailings' licensing immediately l

12 effective unless otherwise provided, and another section, at 13 least to some extent, delayed the effectiveness of some provisions 14 of the Act.

e i

15 And the two questions raised and discussed in the l

l 16 earlier paper and again in the comments here were:

17

1. Do both the states and the federal government 18 have authority to license tailings?

That is to say, exercise 19 concurrent licensing jurisdiction for three years following 20 l enactment of the Act.

I i

21 2.

Are the requirements of new Section 274, all of l

22 the Act, dealing with procedures for agreement states and 1

23 h issuing source material licenses for mills, immediately effectivei 0

24 The earlier paper, SECY-79-88 concluded that:

Ace-Fscerei Rooorters, Inc.,

25 1.

There was concurrent authority over tailings 2252 074

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mm j

for the three-year period.

And this meant that the NRC needed 2

to' issue licenses:for tailings in agreement states and non-3 agreement states.

I i

4 The paper also concluded that in cases of conflict 1

l 5

between the federal government and the states in this situation /

6 the federal law would prevail.

7 On the second question, namely whether the agreement 8

state requirements on their issuing licenses for mills were i

9, effective immediately; the paper concluded that although this I

i 10 I was a very close question from a legal standpoint, the better n

reading was probably that none of the new requirements for i

i 12 agreement state source material milling licenses became effective i

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13 until three years after the enactment of the Tailings Act.

l w

j 14 Now, as a result of the meeting, theCommissionasked]

15 first of all for some draf t legislation. They asked for two 16 versions.

17 One, version which would codify the interpretation of '

i 18 the Act set forth in the earlier Commission paper, namely 19 1 making NRC authority cver byproduct material, the new tailings t

20 effective immediately,in both agreement states and nonagreement I

, states, but which would also preserve state authority and would 21 1

22 l provide for a delay of three years in the application of the 23 f state procedure requirements.

T, hat was the first version.

24 j Alternatively, the Commission asked for another Ace.fsceral Recorters. Inc.

25 ] version of the legislation which would have conformed to our 2252 075 i

6 mm 1

original draft of the statute and deferred the whole program 2

for three years, both NRC licensing authority and the agreement I

i 3

state licensing procedural requirements.

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4 We have got both of those versions drafted in this l

l 5

paper, which is now before you, which is the paper dated j

6 May 7,

'79.

And there are included Appendixes G-1 and G-2.

7 They are fairly simple types of amendments..

-8 They both fairly simply accomplish both of those two objectives.

i 9

The Commission also asked that we get comments from 10 I states, the industry and environmental groups and others about 11 these two issues, and how they came out on these questions.

I 12 Co==ents were requested in agrecment states.

Of 13 ll the nine agreement states that replied, seven were against li i

l' 14 concurrent jurisdiction and took the position that the new f

15 requirements should be delayed for agreement state licensing of 16 mills; both mills and byproduct material.

17 One had no comment at this time.

18 And one, which had no operating mills, seemed'to 19 l have no problem with immediate NRC licensing of byproduct 20 material.

I 21 There is a summary of these comments in Appendix B 22,: of the paper.

I' u

23 !!

So the vast majority in su= mary of the agreement state:

Il 24'i that were opposed to concurrent jurisdiction, were also opposed ac..s.emi neoonn. inc. :j 25 y to the idea of immediately imposing requirements on agreement h

2252 076 u

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state licensing.

2 In the industry, of the fourteen companies that 3

replied, none favored any limitation of the milling and. tailing I

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4 licensing program in Title II during the three-year interim.

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5 So they were all in favor of a'three-year delay of the entire 6

regulatory program.

7 Of environmental groups, four environmental groups 8

and one Indian Pueblo commented.

All supported concurrent 9

jurisdiction. That is to say, all were in favor of Commission 10 !

licensing tailings-during the three-year period.

11 Most also favored an interpretation of the bill that!

i 12 would have m. de, the new recpirements for agreement state licensin,g I

i 13 of milling, also effective immediately.

t 14 And these comments are summarized in the paper l

15 which is now before you.

16 Now, some observations about the comments.

Of i

i 17 course although many offered legal arguments, there were no 18 new legal theories that surfaced. In other words, the legal i

19 I considerations set forth in the earlier papers, SECY-7 9-8 8, l

20 i are essentially unchanged. Nothing new brought up or new i

21, considerations that we hadn't thought of before.

i 22 i

Many industry, agreement state and environmental i

23 : arguments were based on matters of policy and practicalities.

i 24 :: In other words, why have dual jurisdiction why impose burdens aa.s.omi n corms. ine. !j 25 N on agreement states; agreement states can't possibly comply with 4

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this new Act in this diree-year period; we need to have time to 2

get new statutes, new regulations, new manpower, new resources,I i

3l et cetera; l

4 Industry and agreement states tended to argue that i

i 1

5 present regulation was sufficient and duplication was j

6 urcecessry and burdensom.

7 The environmental groups by and large contended that I

~8 environmental damage would occur unless the program were l

9 updated right away. And the language of the statute and the 10 !

overall intent to protect the public and environment-from hazards II associated with tailings required more stringent regulation 12 immediately.

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13 Many comments made the general observation that 14 there needed to be prompt Commission resolution of this matter, 15 and we ought to, to some maximum extent, minimize

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16 duplication should. concurrent jurisdiction be found necessary.

17 Now, particularly important was the congressional 18 comment we received from six of the principal authors of the 19 Tailings Act in the House and Senate.

20 COMMISSIONER AHEARNE:

I think you ought to point 21 out that they were the Chairmen of all the oversight committees,-

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22 l and both Democrats and Republicans.

I 23 !i MR. MALSCH: That's correct.

b 24 [

The letter was signed by Senator Randolph, Senator

.e,.e.eme neconm. Inc. !,

25 l Sart, Senator Domenici, and Congressman Dingell, Congressman lI

'1 i

2252 078' 8

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Udall and Congressman Bauman.

So it covers both sides, both 2

political parties inloth House and Senate.

3 All the committees involved were involved in 4

drafting and signing this letter.

8 5

Now the letter said, in summary first of all, 6

these questions should be resolved promptly, in accordance*

7 with the intent 6f Congress, in a manner which doesn't disrupt

'8 ongoing regulatory programs of the NRC or agreement states.

9 The letter expressed the view that to impose the i

10 I requirem elts i= mediately, that is to have both immediate NRC II licesning of tailings in agreement states, and to impose the l

12 new procedural requirements on agreement state licensing would j

}l 13 be contrary to the congressional intent.

I4 According to the letter, the NRC is to exercise 15 authority over mill tailings in nonagreement states immediately 16 and should make every effort to encourage and assist the states 17 in upgrading their licensing programs as new standards are 18 applicable. And that the NRC should do this to the maximum-I9 I extent practicable.

l 20 l The letter ends with the observation that the 21 iCo= mission would benefit in future enforcement of this intent l

=

22 land interpretation in clarifying legislation.

This assistance' i

23 l will be provided.

i 24 !

Now, unfortunately, the congressional intent as j

Ac..%mi n.conm. anc.,

25 l expressed in this letter, is not spelled out in the legislative 2252 079

10 mm I

history that took place before the statute was enacted, and is 2

not at all clear from the statute.

3 There is a particular.~. problem in that the letter 4

recommends that we exercise licensing authority over tailings 5

immcaiately in nonagreement states, but defer for three years 6

jurisdiction in agreement states. Yet the letter, in terms of 7

NRC jurisdiction, makes no distinction between agreement states 8

and non&greement states.

9 COMMISSIONER AHEARNE: In the statute?

i 10 I MR. MALSCH: In the statute, excuse me. That particuldr 11 nuance is not found in the statute, and you can't get it from l

12 legislative history.

So it isn't clear to me that you can get m-

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13 there from here using the statute as it is presently written.

i i

14 Now also the two versions of the legislation which i

15 the Commission requested, also don't quite fit the congressional:

16 letter.

17 One version deferred the whole lprogram for three i

18 years, while the letter says, don't defer NRC licensing in 19 1 nonagreement states for three years. Make that effective right I

20 I away.

So that's a slight variation on that version of the I

f 21 legislation.

22 The other version of the legislation would have i

23 ii codified the recommendation in the earlier caper; namely defer ril 24 h state licensing procedure requirements for three years:; but Aes.Feceral Recorwes, Inc. i 25 h have NRC licensing effective right away in both agreement and l:i 2252 080 l

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i 11 mm nonagreement states.

Again, there is a nuance in the letter; namely that:

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we should exercise immediate jurisdiction over tailings ~in i

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1 nonagreement states, but not in agreement states.

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Moreover, the legislation doesn't, by its: terms, 6

give us any ground other than persuasion and jawboning to insist 7

that agreement states comply with these things for three years 8

i to the maximum practicable extent. You know, they may not be j

9 required to comply with them in every letter for three years.

10 ! There isn' t that exhortation or authority in the statute as 11 I

presently written.

12 Now

.'s have, since we received the letter, drafted un-13

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a small_ variation on the legislation that would accomplish the i

14 essence of the letter, namely defer state procedure requirements 15 fot;three years, and defer NRC licensing jurisdiction in agree-16 ment states for three years.

17 T lat's a fairly simple thing to draft. It is a small 18 variation of the two versichs which are attached to the paper.

19 1 We have not taken a crack at drafting a provision.-

20 that would say that in agreement states, comply with the Act 21 to maximum practical extent, which is the other requirement of 22 iftheletter.

23 li

!l!

COMMISSIONER JUMRNE: Even that kind of sratement l

24 ll ac,.p.emi peoorms, ine. !j would.still be hortatory.

25!!

MR. MALSCH: Yes.}} Oh} I fl d

12 mm 1 I think our feeling immediately, was you didn't 2 need legislation to do that..We would simply use our powers t 3f of persuasion, our technical assistance program, and so forth. i I 4 COMMISSIONER AHEARNE: (Inaudible.) I l 5 MR. MALSCH: That's right. 6 And you wouldn't need legislation to do that. If 7 you put it in the legislation, it is there. But it is not the I B kind of thing you could enforce or cite as any kind of a binding;, 9 h legal requirement. 1 10 ! Well, that addresses two issues. One is the comments' 11 that we received. It also addresses the conclusions that we l i 12 had provided in the earlier paper dealing with immediate 13 ' jurisdiction. 14 The other items are -- let me just go through them 15 briefly. 16 The Commission asked us to do a legal analysis of ) 17 how the Act af fects in situ extraction ore mining. This is 18 an issue which came up sort of in passing in the earlier paper, 19 I and is of some concern.to a number of agreement states which l 20 I have these kinds of operations either planned or underway. I 21 The regulatory program in Title II applies to i 22 " tailings or waste produced by the extraction or concentration 23 ll of manium or thoriu= from any ore processed primarily for its L 24 l source material content. " 2c 4.emi aeconm. inc. ll 25 h Now, as used in the Act, this is a term of art e l'. ) 2252 082

l 13 I mm 1 connoting, we think, discrete material capable of controlled i 2 disposal, and thus would clearly include above-ground waste 3 from in situ leaching that required controlled disposal.. 4 This interpretation is consistent with the law, 5 consistent with the purpose of the-Act, to protect the public 6 health and safety, and environment from hazards associated i 7 with uranium milling residues. And is, consistent with the l 8 congressional recognition in floor debates that in situ 9 operations are covered by the regulatory program, but may be 10 ! likely candidates for exemption. II On the other hand, it doesn't appear to require 12 licensing and legislation of the underground ore bodies

q 13 depleted by the solution extraction process.

And we think, 14 notwithstanding this somewhat ambiguous definition of tailings 15 in the Act in both Titles I and II, that the terms tailings and 16 waste as used in Title II do suggest terms of art referring to 17 discrete materials capable of controlled disposal. And that 18 neither the language of the statute nor the congressional 19 I intent, nor the regulatory scheme, nor the legislative history I 20 f would indicate that these ore bodies, underground are bodies 21 were intended to be covered. i l 22 ll So our view ofJthe Act is that the Title II applies li 23 b to the above-ground waste er remains or residues, but don ' t 1 24 !i apply to the underground are bodies that remain. Ace-Feceret Reoortres, Inc. l 25 [ The other issue deals with NMSS development of 2252 083

14 mm 1 contir gency plans for handling license applications, assuming 2 that the recommendations in SECY-79-88 go into effect; namely 3, assuming the Commissionewere to agree that there was immediate i I 4} l NRC li censing authority over tailings during this three-year i 5 period. 6 Jack Martin can offer further elaboration. But in 7 brief, NMSS is currently assisting agreement states in et aluatin'g I 8 tailings (?) alternatives, and radiological impact i 9 involving new milling proposala. i 10 ! If we were to prepare a full environmental impact 11 statement relating to lic.ensing tailings for these projects, 12 which would be the result if we were to assert immediate i y 13 licensing authority, then it is NMSS's' view that these evaluations 14 could easily be done based upon evaluations that have alrea'.y 15 been performed and are being 1 performed as part of this 16 assistance program. I 17 So the impact on us would be essentially less than it 18 wohld be, had we had no such program, and were we not involved 19 I at all in agreement state milling actions right now. I 20 i That, briefly, summarizes the four items the 1 21 ; Commission asked us to come back to. We have people here 22 from NMSS and state programs to answer any questions you might 23 li 1have. 24 hl CHAIRMAN HENDRIE: The imcortant question, it seems aas.ami secorrers. anc. y 25 y to me, is the immediate or deferred effectiveness of those i. 0 2252 084~ a n

15 mm 1 two aspects, and how we propose to resolve that. 2 I take it it is your judgment that in spite of the f' i 3 letter from the sponsors of the legislation, the language of I I 4 the Act itself,and the legislative history prepassage, doesn't i 5 give us any clear and unambiguous place from which to decide, 6 if we want to, that the three-year deferral is what is intended. 7 MR. MALCH: That's right. l 8 Particularly difficult is to make the distinction I 9l which:be letter drafters made between our jurisdiction in 10 ' agreement states and our jurisdiction in nonagreement states. 11 There are arguments pro and con either deferring all authority for agreement and nonagreement states, or assuming it all right ! 12 13 way. It is just the halfway road which the letter. took which 14 is difficult to achieve. 15 Unfortunately, statements by the Congress as to what 16 was intended, made after the Act, after an act is enacted, are 17 not of much value from a legal standpoint in statutory interpre-18 tation. 19 I COMMISSXONER AHEARNE: Well, although that is certainly 20 generally true,- this has a little bitc. greater weight because of 21, the collection of individuals who have jointly signed that I 22 l statement. i U 23, h MR. MALSCH: That's true. 0 24 But you still have the fundamental problem, as a 4 ...s.emi neconm. inc.1 25, general matrer statements made after legislation is enacted, are b ? a 2252 085

16 c' ~ 1 not technically supposed to be used.-- 2 COMMISSIONER AHEARNE: Yes. 3 MR. MALSCH: -- in interpreting statutes. l I 4 The difficulty then is that the temptation is to i 5 make observations of statements that were not beforeethe l 1 6 full Congress when Congress passed the statute. 7 COMMISSIONER AHEARNE: I understand. 8 My only point is, it is unusual to find that 9 draf t of agreement. q P 10 ' MR. MALSCH: I think that's true. 11 MR. BICKWIT: And I think we want to reserve our 12, right to crgue the relevance of this. l 13 ll COMMISSIONER AHEARNE: Yes. 14 MR. MALSCH: But at least I don't think that we could ' 15 say that this letter has dramatically changed the legal analysis i 16 lthatyougavemebefore. I 17 COMMISSIONER AREARNE: As I said, it may have 18 dramatically changed the receptivity of those receiving. 19 I MR. MALSCH: Okay. 20 It would clearly have an impact on whether you wish 21 to ask for clarifying legislation, which would be the most 22 obvious impact the letter might have. S 23 h COMMISSIONER AHEARNE: There might be some that aren't I

I 2dh too obvious, aa.F.on neoonm. inc. ll 25 ll (Laughter. )

L. 2252 086

17 e, 1 CHAIRMAN HENDRIE: Well, since the prospects,forr i 2 litigation seem high no matter which interpretation the 3 Commission makes, it seems to me that we have some responsibility i 4 to get back to the Congress, to the gentlemen who wrote the j i 5 letter.-. passed the law and then wrote us the letter; iif theyl l 6 had written us the letter and then passed the law, why that 7 would have clarified things considerably, but, unfortunately, j 8 it wasn' t in that, direction.-- to get back to them and tell 9 I them, we think some technical amendments need to be made to-. i 10 ' the law. lI II COMMISSIONER AHEARNE: They had asked, as I recall, t 12 Senator Hart and Mr. Dingell had asked that question of us 13 sometime, several months ago. .3 14 CHAIRMAN HENDRIE: Yes. 15 Authorization -- and, in fact, we have been promising - 16 we promised at the time to get back to them with our view, and i 17 l we have not forned our view because we were awaiting a letter, 18 which eventually came. 19 l COMMISSIONER AHEARNE: I guess I wasn't aware we were I 20 l awaiting the letter. 21 CHAIRMAN HENDRIE: ~. 7 e s. Very much so. 22 i COMMISSIONER AHEA'GE: I was aware of the fact that i I!

l 230 they had said that if we didn't belies 2 thac the law was clear 24 s in carrying out what they seemed to feel was the well-understood c..r.o.r.i neoomn. inc.,;

25 h intent, that we ought to come back and propose clarifying t i 6. 2252 087

18 mm i legislation. l t 2 MR. MALSCH: Let me mention also, we have included l t l in this package, among other optional amendments clarifying l 3 I i 4 another timing problem -in another section, Section 83 (a). l 1 5 And this section is just a mess. I 6 And it is possible that it can be read so as to 7 create an absolute loophole in certain categories of licenses. l 8 And we have also included in the package before you, ! 9 ! an optional amendment clarifying this point. II l 10 ! CHAIRMAN HENDRIE: This is at Appendix H~t ~11 MR. MALSCH: Yes, Appendix H. 12 CHAIRMAN HENDRIE: Refers to Section 83 of the Act. 4 13 COMMISSIONER AHEARNE: The one that they come in for i 14 renewal in the interim three years. 15 MR..MALSCH: Yes. Let's see now, every time -- it 16 takes me five minutes to get into it because it is so complicated. i 17 (Laughter.) 18 It deals with licenses issued before the three-year 19 l period, before that section becomes effective, but after the date l 20 i of enactment. And it turns out that the license is terminated i 21 before the three year period, the Act doesn't apply because 22 g of the general Grandfather Clause:. provision. li 23 ll If it is terminated before three years, it is also I d 24 l; out. .:,c..s.e.r.i neoenm. inc. ;; 25 But if it is issued or renewed beyond three years, n b. 0 2252 088

19 ^ l 1 it's in. And this switching back and forth doesn't make all I 2 that much sense. 3l I think it was drafting oversight. I think they just didn't focus on certain categories of licenses and actions, 5 .that took place between the date of enactment and the date of l 6 effectiveness. COMMISSIONER AHEARNE: I have seen a recently-provided i '8 i table -- I guess Jack, perhaps can answer -- I gather that they : 9 !' license, at least in the agreement state licenses there are i 10 ', a number that were indicated as timely renewal. And these 11 appear -- are scheduled for renewal. They go'back, '75, '76', 12 and it just says timely renewal. ~h 13 =1 Is this similar to waste disposal sites where if y. hey, come in and propose a renewal, even if the licenses are renewed, 15 it then stays in effect? 16 MR. MARTIN: Yes, that's e metly the same. And almost 17 all the existing mills in agreement states are on timely 18 renewal, except for one or two. 19 l (2: 30 p.m., Commissioner Bradford arrived.) 1 20 i COMMISSIONER AHEARNE: Nowy where would that kind of 21 situation fall? ~ 22 "' MR. MALSCH: I think those are covered, aren't they? ll "3 lyl If they were issued before the date of enactment -- 24 l' MS. GRAMMER: Yes. l.ce Federai Reoorters, tric..; 25 lll! MR. MALSCE: -- they are covered. 3l ll 2252 089

20 I mm 1 COMMISSIONER AHEARNE: Is that an initial issuance, or, i 2 is that the renewal issuance? 3 CHAIRMAN HENDRIE: If they are valid on the date -- I 4 MR. MALSCH: Yes, if they are valid -- i 5 COMMISSIONER AHEARNE: Here is a case where the 6 license had been issued, it was scheduled for renewal in, say, j 7 February of 1976. Has not been renewed yet, application has B been filed, so it is floating along. 9 Now, is that -- and let's say, it is renewed now. It 10 ' is after the date of enactment. I1 MR. MALSCH: I think it would get picked up upon 12 the next renewal or termination after '81. 13 Is that right? =- i 14 MS. GRAMMER: If it is in effect on the date of 15 ; enactment, it is good. 16 COMMISSIONER AHEAPRE: But it hasn't been renewed yet. 17 lTheapplicationisin. I 18 i MR. MALSCH: True. I 19 i But as long as it is in effect on the date of enactment l 20i. it is picked up, 11 21 CHAIRMAN HENDRIE: That license was in effect on the 22,! date of enactment of e= statute, and has as much validity from Ii 23 lci that standpoint, as if the Staff had reviewed it and reissued. 2 4 ', _ CUMMISSIONER AHEARNE: Does that one ever get picked up'. c.4.omi seconm. inc. !j 25 !! MR. MALSCH: It will get picked up upon the next r i 2252 090

21 mm i renewal. 2 Or, termination after three years after date of i I e 3i enactment. 8 l I 4 COMMISSIONER AHEARNE: So, for example, this continues, S to float on timely renewal, it would never get picked up? l 6 MR. MALSCH: Until it got terminated, that's right. 7 It has to happen sometime. 8 COMMISSIONER AHEARNE: So that as far as the 9 preparation of the environmental statement, which is one of the, 10 ! I gather, procedural requirements -- 11 MR. MALSCH: Not exactly a statement, but it is a 12 document that complies with the meat of the statement. I ~ 13 COMMISSIONER AHEARNE: Right. c 14 And if I look down through the state projects, there ! 15 is only one that has had an EIS prepared, from all the state-16 licensed ones. That as long as they continue on this timely i 17 I renewal status, they would not have to have the environmental 18 s tatement? 19 l MR. MALSCH: That's correct. I 20 i Although, you know, in some circumstances you might i 21 ! make a good legal case for proposition after a point of time, o It 22 ; inaction amounts to action and something has to be done. l 23 ll In some rare cases, in the federal government, P a 24 y agencies have been sued successfully for failing to take ac..s.e er.: n.oorms. ire. ll 25 j action after a long period of time. I' ll 2252 091

22 I 1 It is possible in certain agreement states this could' mm 2 happen. 3 COMMISSIONER AHEARNE: I am sure the NRC would not want to be promulgating that as a view. I 4 l 5 COMMISSIONER BRADFORD: _That's better than the view l i 6 that inaction amounts to inaction. l 7 (Laughter.) l' l 8 MR. MALSCH: I'11 say as an extreme case you might j 9 be able to successfully win a suit.against a state who had been 10 I dull and footdragging for a long time II COMMISSIONER AHEARNE: JJack, what's the status of 12 the -- (Inaudible.) Is it in any of the authorizing legislatio' ? n 13 ....) MR. MARTIN: I'm not sure. That was being handled Id by state programs, and I think it was in this year's -- 15 CHAIRMAN HENDRIE: I don't think it is. 16 (Simultaneous discussion. ) i I7 MR. MARTIN: -- added to one of the markups. 18 COMMISSIONER AFEARNE: But in every one of the I9 ! authorizing testimony, the Cha. train made the point it would be 1 20 l nice to be added. 21 MR. MARTIN: I'm not sure whether it got added in 22 i the markup or not. 23 CO M SSIONER AHEARNE: My question is, did it get 24 added in any markup? c.F.cerei neceveri. inc. q 2~: l' MR. GOSSICK: Not yet that I'm aware of. i; t' 2252 092

23 mm 1 COMMISSIONER AHEARNE: Are we trying to.get it added 2 in any markup? 3 MR. GOSSICK: Other than speaking to it in testimony,' 4 I am not aware that any other lobbying has been carried out. i l 5 COMMISSIONER AHEARNE: I guess where I would be coming l ( out is, itappearsthattheissue,thedebateisoninterpreta-l l 7 tion of the statute. We've got a fairly strong statement from l 8 what appeared to be all the principal authors of the statute, l l. 9 that this is the way they believed the intent was. 10 I We've also got a fairly solid position being developed 11 by some of the legal staff, that be that as it may, = 12 that the statute,.as written, doesn't support that. 13 So we can.either say that we will follow the statute 14 and the legal advice and get what the authors feel should be 15 done, or try to follow what the authors feel should be done, but 16, in that case have to propose clarifying legislation. I 17 l CHAIRMAN HENDRIE: Would you say that again? 18 Somehow -- the last part of that, I just derailed somewhere. 19 COMMISSIONER AHFJutNE: I think'.the two choices we 20 i have are, either to follow the legal advice that says, here is 1 21 the way the statute is written. ~ 22 g Or else, follow the intent as laid out by the authors 23 of the statute. But in that case, it appears that we would be -- il 24 ': that_it would be certainly advisable for them to propose sc..r.cm.seoonm.in:.L 25 clarifying legislation. ll 2252 093 Il n

24 mm 1 CHAIRMAN HENDRIE: Yes. I agree. 2 COMMISSIONER AHEARNE: And I would come down on the 3 second. t i 4l CHAIRMAN HENDRIE: I would, too. It seems to me we l 1 i 5 ought to propose the clarifying amendments. i 6 MR. BICKWITI How do you behave in the intei-ith? 7 COMMISSIONER AHEARNE: As though that were the correct! 8 Position. 9 MR. BICKNIT: Even though your legal advice is that 10 ' it isn't? 11 COMMISSIONER AHEARNE: The legal advice appears, as 12 I read and reread.:that, it is not absolutely deterministic one 13 way or the other. 14 MR. BICKWIT: Well, on part of what the authors are 15 proposing, I hear the legal advice being pretty much in contra-16 diction; i.e., the distinction between agreement and nonagreement i 17 states. 18 COMMISSIONER AHEARNE: Well then, I guess the Way 19 I that one would probably have to go in that sense is, since I 20 i you are -- the conclusion you are reaching.is that for agreemer.t i 21 states it is to be deferred, that until that clarification would I 22,! get passed, then you would continue also to defer for non-l, 'i 23 ji agreement states, it would appear. e e 24 d MR. BICKWIT: Well, the issuecis -- Ac.4.cmi Reconm. inc.,'; 25 ] . COMMISSIONER AHEARNE: That would be the consistent way a l li 2252 094 e

25 I =m to treat the two. 2 MR. BICKWIT: -- on the tailings, whether there is 3, concurrent jurisdiction. 4 And the easier reading of the Act is that there is 5 concurrent jurisdiction, and that the -- l 0 COMMISSIONER AHEARNE: But it appears fairly clear 7 from the authors, that there isn't. l 8 MR. BICKWIT: In part of this spectrum, that's right. 9l COMMISSIONER AHEARNE: Yes. 10 : CHAIRMAN HENDRIE: It was also very clearly not the 11 Commission's intent in the language that we proposed, to erect i 12 a concurrent jurisdiction >:recjime. ~~~ I3 I think, at least as far as I know, the language Id that we proposed is pretty clearcut. 15 MR. BICKWIT: I understand that. It wasn't enacted. I0 COMMISSIONER AHEARNE: No. I I7 But what the authors are saying is that they did not I8 intend to have the concurrent jurisdiction. At leasti. -- I9 I perhaps not being a lawyer is a disadvantage, or an advantage, 20 l 7 m not sure. 21 MR. BICKWIT: Your legal advice, as I understand it, 22,! is that the better reading of the _Act is that on the tailings l 23 l! issue you have got some i= mediate effectiveness. k 24 h COMMISSIONER AHEARNE: Yes. And Ilm saying that .cy-Fecerat RecorTers Inc. ;l 25 iq the authors of the bill are saying that's not what they intended. h i: 2252 095

26 mm 1 Therefore, the logic of it leads me to conclude that 2 we ought to be trying to follow what the authors of the bill l 30 said was intended. l l 4 COMMISSIONER BRADFORD: John, I would find that l 5 easier if you would assure me at this moment that you would l l 6 also ignore the McClure amendment to the Taiwan legislation. 7 (Laughter.) i 8 The authors of the bill didn't write the amendment. l 9 Their intention doesn' t entirely govern the situation. l 10 h CHAIRMAN HENDRIE: I don't understand the applicability. l 11 Do I have a letter from all of the majority and 12 minority people on the McClure amendment in the Taiwan I it el 13 I legislation 0 i 14 I don't. I 15 COMMISSIONER BRADFORD: We could try and get you one. 16 (Laughter. ) I 17 l COMMISSIONER AHEARNE: I understand what you mean. 18 But specifically here, are you saying that some of the issues 19 I that we are addressing are not ones that were added by the l 20 t authors of the bill? I 21 COMMISSIONER BRADFORD: Are not ones that were.added?, i i 22 p COMMISSIONER AHEARNE: That is, are you saying that the h 23 issues we are addressing are due to amendments which were not 24 h added by the authors of the bill? ac..s.o.r. a.coew<s.inc.p 25 Is that your point? lj 2252 096 n

27 mm 1 COMMISSIONER BRADFORD: No, no. Not that they were 2 not added by the authors of the bill. But the point seems to 3 be that the bill, at the end of the session, wound up in a ?> t form that the authors didn't necessarily -- say the same j i 0 thing that the authors necessarily intended to say. l l 6 COMMISSIONER AHEARNE: I think what they are saying 7 is that they definiteltydidn't intend to say that. And as I i 8 understood from some of -- at least2the meetings that we have 9 had here, that part of that was that a lot of these events 10 ! occurred very rapidly at the end of the session. And as a 11 result, the normal processes of carefully reviewing -- COMMISSIONER BRADFORD: Well, the point is not a l trivial one. They obviously mean what they_say in the letter. I can quote a footnote, from at least a Commission 15 opinion on post-enactment statements -- 16 COMMISSIONER AHEARNE: To me it is very significant i l that three committees, and Republicans and Democrats,suggest 17 18 that broad spectrum for saying, here's what we intended. That's, 19 l in my experience, unique. i MR. BICKWIT: There are two issues here that the ELD 21 li paper focuses on. '2 ': One is whether the -- in milling licenses you can i 4 m l delay for three years the procedures as far as the states are

• ~

24 ll , conce_med. .a.s.cmi n.conm. inc.,: 25 4 ll And as I read the ELD paper, they say tha.t' there is l' l 0 2252 097

28 mm 1 a good argument for saying that a delay is consistent with the 2 statute, and that would also be consistent with the intent of 3 the authors. l i On the other issue, however, the ELD _ paper is sayingl 4 i 5 it is much harder to delay -- l l 6 COMMISSIONER AHEARNE: I understand that. 7 Still, logic leads me to give greater weight to the l 8 authors of the statute. l 9 CHAIRMAN HENDRIE: It seems to me we are talking -- 10 ! let's see if I find any area. 11 It would be our intent, would it not, to recommend 12 amendments to;thellegislation to make the_ point clear? l 13 MR. BICKWIT: That appears to be the

intent, i

14 COMMISSIONER AHEARNE: At least to two of us it is 15 the intent. 16 CHAIRMAN HENDRIE: And to reflec t there 'the direction - 17 we were going when this legislation started out. 18 We could either do that, which was to allow three l 19 1 years for states to come into conformance on both provisions; I I 20 ll or, we could flavor it according to the letter from the i 21 ' Congress on the matter, which makes a distinction between I 22, agreement and nonagreement state mill tailings piles. el' 23 But, whether it is one or whether it is the other, ar. 24 f I reading the Cc= mission cor.ectly that we ought to go forward Ace.Feceral Reoorters, Inc. h 25 !j and recommand some amendments to get this straightened out? s a n 2252 098

29 mm 1 COMMISSIONER BRADFORD: If all three committees agree i 2 that the law doesn't say what they meant it to say, why can't i 3 they write their own amendments? '?.. 4 MR. BICKWIT: They don't agree on that. l 1 5 .They say in this letter, that the law does say what : 6 they meant it to say. Somedoubthasbeenexpressedastothat{ 7 proposition, but that's what they say. l .8 COMMISSIONER AHEARNE: Yes. 9 And that was really part of the flavor, at least in 10 ' the authorizing hearings, as.you recall. It wasn't that they 11 were saying, we now see that the law doesn't say we. intended. 12 What they are saying is, that if you find in your 13 attempting to apply it, that it doesn't -- it isn't meeting 14 l what we all thought. its intent was, then come back and propose 15 some clarifying legislation. And that appears to be what the 16 letter says: Here's what was intended, and if you find i 17 ! difficulties in doing that, propose some clarifying legislation. 18 CEAIRMAN HENDRIE: Well, I propose that we do just 19 l that. And we can discuss -- if I can see whether there seems to l 20 i be a majority of the Commission in agreement with that, why we i 21 can see what, particular form -- 22 ; COMMISSIONER AHEARNE: That's the way I look at it. ll 23 ll CHAIR EN E DRIE: Vic? I 1 24 1; COMMISSIONER GILINSKY: Well, it seems to me we can se..s.eersi neoorrers. inc. d 25 y propose a change, but in the interim I think we have got to act h; n! I 2252 099

30 j on the basis of the best reading of the law. mm 2 CHAIRMAN HENDRIE: Well, why don't we try to straighten i 3 out sort of one thing at a time; one of them. j ust is we l I i g 4 should propose a change. i' 5 Peter, do you have any argument with that? 6 COMMISSIONER BRADFORD: I certainly agree that we 7 ought to act on the best reading of the law. That sounds like 8 an absolutely unassailable proposition. 9 I find it.very difficult: to oppose a clarifying 10 something. But I think I would want to see the legislation. t 11 CHAIRMAN HENDRIE: Well, we have a preponderance 12 towards corrective legislation. 13 i Now, let's see if we can sort out what it ought to --$ ,-W 14 what its thrust ought to be. 15 COMMISSIONER AHEARNE: My position would be that we 16 l ought to propose that clarifying language that tracks with what i 17 ' the authors have said they intended to have in the. bill. 18 MR.BICKWIT: It probably would be easier to pass 19 l that legislation. l 20 l (Laughter.) I 21 COMMISSIONER AHEARNE: I'm not trying to debate what i 22,i ought the law to have been. 0 23 d All I'm trying to do is to get the law sufficiently f 24 : clear. I have read through the transcript of the last meeting, ace 4eceral Reoortres, IN:. ] 25 y I read the papers, and it is obvious that the law isn't at all 1, k 2252 100 1 1.

31 mm-i clear. And that we now have the law saying, look, here's what } I 2 was intended. i 3' And my conclusion then, in order to help us get on 4 with our business, and states get on with theirs, we ought to i 5 then ask for -- go back and say, it is not at all clear and here' l 6 is the legislation to track with what you say'is the intent. ( 7 MR. BICKWIT: My point is simply that of the various 8 alternative.: ways to go, to go the way the authors said they 9 intended to go, is more likely to get quick and easy enactment. 10 I COMMISSIONER AHEARNE: Yes. 11 CHAIRMAN HENDRIE: All right. 12 Which of these would that correspond to? l 13 i MR. MALSCH: Neither one. As I said, that was a 14 variation of the -- 15 CHAIRMAN HENDRIE: Neither of the above. 16 (Laughter.) i 17 MR. MALSCH: We have drafted up a revision. It is a I 18 ' fairly simple change that would accomplish the obj ective.of 19 l the letter. l 20 i CHAIRMAN HENDRIE: Okay. That is G-37 I 21 MR. MALSCH: Incipient G-3, and we can send that 22,; down to you in a matter of a day or so to look at it, a fairly 23 !! simple amendment. p .I 24 ll CHAIRMAN HENDRIE: Now it covers both difficulties? Acy Foceral RecorTers, trc. 25 ]

MR. MALSCH:

Yes, that's right. P I W;. 2252 101

32 I mm CHAIRMAN HENDRIE: Even though we think we understand 2 one perhaps a little more clearly than the other, why as long 3 l as you are clearing things up -- l' MR. MALSCH: Right. l 5 Now, what it_doesn!t cover,-the other question in j f 6 l the letter is whether we ought to have a legislation imposing g f requirements of the Act upon agreement stat'es in a three-year 8 i period, but only to the maximum extent practicable. i 9 Our initial thought was that we would put that in 10 ' the legislation, wotild simply commit to do that as a Inatter of 11 policy, best efforts. 12 l But you could, I suppose, draft up language that 13 would say, you know, it shall be the policy of the Commission to encourage the states, and so forth, if you wish to do that. 15 CHAIRMAN HENDRIE: Okay. 16 COMMISSIONER AHEARNE: Could I ask a clarifying 17 ! question? 18 What does "or so" mean'in the phrase "a day or so"i 19 1 MR. MALSCH: I believe I could send it down to you j 20 ! i tomorrow. 21 COMMISSIONER AHEARNE: I ask, because a week from -- ~ '2 faweekagotomorrow, someone sitting approximately there said I '3 h ~ approximately the same thing,and it hasn' t come in. So I was a ace.g.e.i nea.mes. inc. 3 3 us e curious. 25ji MR. MALSCH: In fact it has been drafted. I looked ll 2252 102 i 1

33 mm 1 at it. I haven' t showed it to anybody-else outside of L&6..= 2 (?). (Inaudible.) other offices before I send i 3 it down. I i 4 CHAIRMAN HENDRIE: Okay, now what about Appendix -- l 5 while we are on the subject of amendments to the legislation,. 6 and before we go back to what we do in the interim, what 7 about Appendix H. f 8 MR. MALSCH: This is Section 83, right? I 9 COMMISSIONER AHEARNE: Yes. 10 ' CHAIRMAN HENDRIE: While we are at it, shall ve try 11 l to get that cle:ined up? l i 12 And what else is there in the Mill Tailings Act l -G.tt 13 that is going to be a problem? at=- g 14 MR. MALSCH: I wish you hadn't asked the last 15 question. 16 The three most serious problems are the effectiveness 17 problem withhrespect to agreement state licensing procedures 18 and NRC licensing authority. 19 i The other serious problem is the Section 83 loophole l 20 i with respect to that small category of licenses that we spoke 1 21,about before. 1 22 b There are some other iproblems which we are looking I i 23 ii into and have draf t legal memoranda on, that I don't think are l 24 [. as serious, but I think could be contentious. Two that I can 22 5.e.i neoorws. enc. :i 25 ll think of right away are -- first of a.*.1 there is an issue as to ii 2252 103 n

34 mm whether our discretion with respect to mandating ownership of f land use for disposal of tailings, also extends to ownership 2 f the tailings themselves. In other words, in Section' 83, did ! 3 I I requirements for ownership of land and tailings go hand in hand,j i r in some cases, are they separate? l 5 l_ We are lo king at that, and we hav e tentatively l 6 t concluded that they go hand in hand. The legislation is very i 7 e 9 ambiguous. The other serious question is the legislation says 9 10 ! that the Commission may not mandate land ownership, tailing 11 disposal site land ownership. It defines that public health and safety doesn't so require. 12 13 The question is whether that is a sole Commission l g function, or whether three years from now, if agreement states 15 are exercising jurisdiction, they may on their own initiative 16 exempt the licensee from the land ownership requirements. i 17 l And we have tentatively concluded that this is a E 'le Commission function, but it is quite possible that this can be 18 j9, contentious and some agreement stater would think or take the l 20l view that they have that discretionary authority. I Now those a.re three issues in addition to the 21 .,2 issues before you right now on this paper dealing with just the f 23 h effectiveness of licensing procedures. e 24 Those are the most serious problems that we have c..r.cerincorvees.inc.y 25 j encountered so far with the Act. There are a series of other b l-ii 2252 104

35 s mm ones, but so far they look like they are the kind of ones that j 2 we can resolve fairly clearly based upon the overall statute in legislative history. 3 I i e 4 Of course, the problem is, the more you start fixing l l' 5 UP the Act, the more the clarifying amendments begin to look t 1 6 like a real big deal, and may raise a whole host of other 7 questions that you may not want to reopen. And the reopening j 8 may have some uncertain results. l 9 So you know, our inclination is to keep the 10 ! clarifying legislation as narrow as possible. And we thought 11 ' that if that were the guideline here, that what we would 12 probably -- what we should probably seek is legislation: s 13 A, to give us what the congressional people thought $a i 14 they had originally accomplished with the Act; and i 15 B, to clarify the Section 83 loophole. 16 But there are some other issues that are going to 17 be coming up that are not as serious, but issues nevertheless. 18 The Act is not a masterpiece because it was put 19 together in the final days. I 20 l CObeiISSIONER AHEARNE: I would suggest that we try 1 21 for the simplest now, and when we go..over with it, put in a i 22 phrase saying that there are additional areas. that we may be b m H ccming back on. i. 24 !I CHAIRMAN HENDRIE: Or, maybe by that time we will ac.p.omi n.oomn. inc. '. 25 j be able to distinguish a little more carefully or clearly about i' I; k 2252 105

36lg mm whether we are likely to feel that we can go back. I I So, I would be inclined to stick to these timing I 2 i t questions in Section 83 and the 204 (e) and (h).. 3 I Now, comments for or against? COMMISSIONER BRADFORD: So then what happens to l-5 i pending license applications? 6 l CHAIRMAN HENDRIE: Okay. l I

well, I think what we have said here is that we g

i i 9 l; want to see some proposed legislation that cleans up the n!! timing questions, including the 204(e) 2 04 (h) and the Section 10 j 83, I think. 33 COMMISSIONER AHEARNE: I'm not sure whether Peter 12 r and Victor took any position on what that cleaning up legislation 13 i ought to accomplish. j g i COMMISSIONER BRADFORD: If I understood you, what 15 t ijIwuldsayitoughttodoatleast,.isonegoesbackandsays, 16 ,well, here's what your letter says. Here 's what - g 18 I' 1 79 [ COMMISSIONER BRADFORD: Bare's the part that is giving. I:me some trouble. ,0 I 4 q 21 l,l You then have to say, here is how we read the bill. e I'm not sure we are in complete agreement there. And f that's what leads you to the "Therefore, Here's what you s 4-I g lhave to write in clarifying legislation." A.s.emi neoonm. inc. b' g' COMMISSIONER AHEARNE: At least fn agreement if you .c l! 2252 106

37 4 say, "Here's how you might read the bill." 2 i mm COMMISSIONER BRADFORD: Yes. t l COMMISSIONER AHEARNE: And therefore you need the clarifying. { COMMISSIONER BRADFORD: Yes. But you havento get i 6 beyond the "might" in order to answer the question of what I 7 you do with pending applications. 8 COMMISSIONER AHEARNE: Yes. il 9 la CHAIRMAN HENDRIE: Let's turn to the question of 1 10 I what we do in the interim. 11 COMMISSIONER BRADFORD: I suppose what matters there l is how long an interim is. It is one thing if it is a month, 13 and another if it is a year. + 14 COMMISSIONER AHEARNE: That's true. 15 CHAIRMAN HENDRIE: Well, I guess it will run down 16 ,until -- into the fall. i7 MR. MALSCH: I would guess the easiest way would be 18 to tack it onto some authori::ing legislation. But that is not 19 1 going to happen.iight away. 'O ' I don't know exactly what the plans would be if 21 Ithey are sent up for clarifying legislation. i '2 COMMISSIONER AHEARNE: Is there anyone from 23 1:; Congressional Affairs that might clarify that? 24 i, ace.Seceral Recorvers. Inc. !l ponse.) 1 25;! MR. STOIBER: I sh.._ld also raise another question t l l! 2252 107 i

38 mm I involving the OMB involvement in this process. 2 This was part of an Administration bill. If y6u I 3 recall, there was some go-around with the OMB people on this I I aspect. I don't know whether you want this referred to them, f 4 5 or not. l t 6 CHAIRMAN HENDRIE: Oh, I think in the custo nary l i 7 in line with the customary sequence of actions on a thing like l I 8 this, why we will give them an opportunity to make comments. I I 9 COMMISSIONER AHEARNE: But it is really clarifying 10 ! legislation. It is not proposing a bill. 11 MR. STOIBER: They don't see those as distinct. 12 MR. MALSCH: Except, let's say you were an 13 environmental group and wished to have the Act effective i 14 immediately, you would raise as a policy question, quite apart 15 from whether this does or does not correspond with what was 16 originally intended, you would say,"By God, I don't care i ! what you intended originally, but the correct policy choice is 17 18 to make the Act effective right away." 19 1 If somebody wished to make an argument like that 20 l into a substantive debate rather than just to quibble over ii 1 21 does the language do what was originally intended -- 3 l ~ 22 g! MR. BICKWIT: And we don't know what they intended l 23 !! initiallv. We don't know what the Administration intended l! 24 y initially. c..s.emi aeconm. inc. ; 25 [ COMMISSIONER AHEARNE: I certainly don't. .l: E 2252 108 Il

39 MR. BICKWIT: Yes. mm g i 2 I mean, if you are saying that this is just a l l 3i clarifying piece of legislation, they might not see it that way l \\ for that reason. 4 i COLMISSIONER AHEARNE: I know nothing really about 5 I 6 the background of this, so I don't know whether it is driven l 8 7 by the Administration or driven by the Congress, or driven l i .g by us. I 9 MR. BICKWIT: I don't either. t i 10 l MR. MARTIN: There was another issue here that I 11 think is related; that is, that about three weeks ago 12,l we issued this long awaited GEIS on mill tailings and had l 2;,_ 3 3 '- anticipated issuing the draf t regulation in concert with it s 14 so people could see the whole package. 15 And I guess I am seeing this regulation recede into g 16 the distance for some indeterminate period of time. Many of 17 i these small items that Marty mentions are part and parcel of 18 this regulation. And I think, you know, we should also,.when 19 y dealing with these in the interim questions, decide if we go { 20 l ahead with the regulation or to what degree do we go ahead with , it. I would hate to see it stalled for another several months 21 l 22 j or a year if we could get on with the vast majority of it. l. 23 MR.MALSCH: There was a meeting in my office bout 24 P two days ago about the regulation, and we had tentatively decided

m...,..._. ~. ;,

25] to draft the regulation in accordance with what our best legal L D k 2252 109

40 mm i view was, but raise in the Commission paper allthe remaining 2 legal issues that we could see, about particularly Section 83 3 for resolution by the Commission in conn'ection with issuing l 1 0 I the regulation for comment. l 4 1' 5 That would be a convenient way of getting all these l 6 residual questions raised and decided one way or the other. 7 And so, as of now, I guess we are planning on going j .g ahead with the regulation. But it does raise all remaining l l 9 legal questions, and probably that's good. We might as well get. 10 : them to the surface and raised in a formal way to get comments 11 and get resolution, rather than having them simmer around in 12 the background. i 13 I think it would be a shame to postpone the whole 14 program until all the issu'es get resolved first. 15 But that was just a tendtive decision we made a couple 16 of days ago with a group of people who were preparing, actually i 17 drafting the regulation. 18 CHAIRMAN HENDRIE: Well, how that regulation comes 19 l out, depends on how we would choose to treat the matter in the l 20 i interim, clearly. I 21 Let me just finish up with the matter of the OMB. I 22,i I think when it comes down, why the general course l'l i 23 'I; of these things is that as the Staff prepares the=, w'..y they 24 h get cycled out through that channel for comment. So that as ic.4.emi n.=nm. snc. ll 25 lj they come back here to the table, we ham those comments along ,i ll 0 2252 110'

41 I with others. Then we decide what we finally want to do.

m 2

And I think it ought to go that route, which could 3 add -- I suppose in principle it could add a couple of weeks. 4 But, also that kind of time could very easily slip away whether 5 you go that way or not. 6 So, I'm not sure it is any real addition, in fact. 7 Let's get the language down reflecting what we read 8 the letter to say, the sitmmary version of it. 9 MR. MALSCH: 9.e can, ifyouwish,refertolegislationj 10 as an attachment to a reply to the letter sent to us. You Il could reply and quote legislation in one and the same breath, 12 if you wish. Or, you could do it separate, on a separate piece [h3 13 of paper. Id CHAIRMAN HENDRIE: I don't care if it part. I 15 think -- I don't know that it makes much difference. I could 16 go either way. The point is, get the language back down. I7 MR. MALSCH: Okay. 18 CHAIRMAN HENDRIE: I assume Appendix H is already I' about right here for that problem? 20 MR. MALSCH: It is. 21 l CHAIRMAN HENDRIE: So that means we are going to i 22 have language pretty quick. 23 Let's cycle it out*to cur friends, and hopefully 24 Commissioners will be able to agree en it speedily, and then 4e..r.o.w n.menn, inc. l c 25 we can decide whether we send it down with a letter to the l 2252 111

42 I mm speakers, or whether transmission is fast in response to.this, 2 or not. 3 MR. MALSCH: Okay. 4 CHAIPEAN HENDRIE: Maybe Congressional, in fact, 5 would like to see how some of the committees feel about it. i 6 Now, let's talk for a minute about what we do in the 7 i.nterim. 8 It appears to me that there are sort of two routes; 9I that you can go one of two directions. 10 One direction would be to follow a course of II action which assumes that the correct reading of the law is as 12 reflected in the letter from the Congress and in the proposed j 13 amendments to the legislation, in which case you run a certain Id set of litigation risks. 15 The other thing to do in the interim would be to l 16 say, well, in spite of the congressional letter we read the i I7 law -- we believe the best reading of the law is the following, i I 18 and that's what we will do in the meantime until such time as the legislation is passed. l l 20 In that case there are certain other litigation 21 risks. And it appears to me offhand, that one could go either { 22 way. And I would be interested in opinions." 23 MR. BICKWIT: I could say that our Solicitor says 24 that this letter would be very helpful to him in any litigation Ac..s.e m i n a n m.inc. 25 if you were to follow the course of this letter. I 2252 112

43 mm 1 I did not put to him the question of what he thought l 2 of the litigation risks on, if you didn't. 3

COMMISSIONER BRADFORD

Or whether he thought he was getting from zero to 30 percent, or 30 to 50 percent? 4 5 (Laughter. ) 6 MR. BICKWIT: No, he thought -- he was more on the 7 order of the second. 8 CHAIRMAN HENDRIE:. There is also the prospect that 9 the -- you know, litigation doesn't normally move like a 10 rocket in time. And even though the Congress isn't any great 11 speedball, if in fact clarifying amendments could be passed in 12 this session of the Congress, it is unlikely that any serious litigation against a Commission course of action would have come 13 14 to a final decision in the courts before it would become mo.t. 15 I assume it would be mooted by passage of clarifying 16 amendments. 17 COMMISSIONER BRADFORD: I think you are right, that 18 it would be finally adjudicated. 19 Whether somebody would embark on a course that 20 would get themselves a restraining order -- I 21 CHAIRMAN HENDRIE: T hat's certainly true, Peter. I 22 We could very well be under a restraining order from -- 23, MR. STOIEER: Which would be a very great inducement i 24 ifor Congress to pass the legislation. ACo Faceral Recorwet, Inc. 25 CHAIRMAN HENDRIE: I must say I have already had 2252 113

44 mm 1 indications that you would be inclined to follow the course I 2 that corresponds to what is called "the best reading of the law." 3 I must say for myself, since I think I know where, l l 4 generally, I expected this law to go, and we had a version here ~ 5 that we had agreed on that said, implementation in three years 6 to allow everybody to get aboard, we now ha e a letter'from 7 the sponsors of the measure that say approximately that except 8 for this fine-tuning between agreement and nonagreement states. 9I Since we do want to go in with recommending clarifying legisla-10 tion to get where the sponsors thoughc they were getting, I 11 would be very inclined to take the point of view that we will 12 act as though that is the way -- that's what the law means to = 13 g,g., us and go forward and take our chances on challenges on the l 14 basis that wit 1. this kind of unanimity down the Congress, it 15 seems quite a fair chance that in fact the law will get i 16 straightened out to read exactly that in a few months. 17 And in the meantime, I don't see great advantage in our going in some other direction only to reverse hastily when l 18 l 19 dhe clarifying legislation passes, if it does. I Ii 20 So, I would be inclined to act on the basis that the j 21 law means what these people say it does in that letter. 22 COMMISSIONER AHEARNE: The analogy that comes to my 23 =ind is the steamroller, ponderous and slow. And I have this 24 image of the steamroller of the Commission going down this Acs.Feseret Reporters. Inc. 25 path. Back in February Congress saying, " Hey, wait. If you 2252 114

45 mm 1 think you are going in the wrong direction, let us know." i 2 And we say, "Oh, yes, yes, we will." 3 And we are still going chugging, down, down. And they 4 come in and say, " Hey, you are going in the wrong direction." l 5 And we say, "Yes, we know." 6 And we are still going down that way. 7 So, with all deference to the legal advice, logic 8 still tells me that I ought to be going down in the way the 9 people that wrote the law thought they were writing it. We 10 are all relatively imperfect human beings. They didn't do it f 11 quite right, so in theory they are representing the people. 12 We are trying to carry out the law, so we ought to 13 be doing it as logically as we can. 14 COMMISSIONER GILINSKY: I guess you need Commissioner 15 Kennedy. 16 COMMISSIONER AHEARNE: Pardon me? 17 COMMISSIONER GILINSKY: I guess you need Commissioner 18 Kennedy here. 19 (Laughter.) 20 CHAIPRAN HENDRIE: Your in clination would be to 21 follow the so-called best reading? l l 22 COMMISSIONER GILINSKY: Yes. If they want to 23 pass an amendment, they can do this if there is sufficient 24 enthusiasm for it, in normally, reasonable short order. Ace-Fooerst Recorwn, Inc. 25 But, on the other hand, it may drag on or may never ,i 2252 115

46 e. .+. mm j happen, in which case I think we ought to be carrying out the u i 2 law the way it is written. l 3 CHAIRMAN HENDRIE: Peter? 4 COMMISSIONER BRADFORD: I think that's right. = 5 I think it is a close question. I couldn't resist 6 waving the post-enactment statement banner B'ut I"think this-7 also is a post-enactment s"tatement that is entitled to perhaps e less weight than was the case in Tarapur, but more weight than a t 9 the average. i 10 And I do come out, I think that I would take what i 11 we regard as being the best view of the law as our working f 12 basis, with the feeling that that is more likely in fact to 13 spur whatever clarifications we feel are in order. l 1 14 What is troubling me is the business of reading the l I 15 law against what we are advised its relevantly clear meaning i 16 is for a period of time that is indeterminate. I mean, which i 17 we think might be a few months. But, it also might turn out 18 to be a couple of years. I 19 And it seems to me that to sign on to that, the l I 20 letter from the sponsors as the basis for defining the law, j 21 you really have to be ready to say that if they don't change l 22 the law, I am still quite comfortable reading it that way for \\l30yearsonthebasisoftheirletter.AndthatiswhatIam 23 24 ' stopping short of. Ac..s.ome a.conen. inc. 25 COMMISSIONER A N NE: Or at least for three years. i I t t 2252 116

4y a I COMMISSIONER BRADFORD: Yes, for three years. But mm 2 bypothetically - 3 MR. BICKWIT: Unless you get another letter. 4 (Laughter.) 5 COMMISSIONER BRADFORD: You are right though, in this I 6 case it would be for three years. 7 But hypothetically, if one was prepared to accept 8 letters as binding it would have to be for an indefinite period 9 of time. 10 CHAIRMAN HENDRIE: Could I ask, Jack,the actions II the Staff takes and is taking, obviously dependent upon which 12 of these two directions one might choose to go -- we are not 13 going to decide this afternoon -- could you give me a couple of Id thoughts about what each one of these paths means in terms of 15 what you would do in the near term in the coming six months, 16 say. Three to six months. I7 MR. MARTIN: I guess I didn't see this, so I didn't I8 come prepared with precise numbers. But, up until this point I9 I think it hasn't made a lot of difference in that in concert 20 with the assistance proposal, that the Commission approved last 21 year, we have been doing most of the technical work that would 22 be required for Environmental Impact Statements and for the 23 technical aspects of licensing for the states under the 24 assistance provisions. Ac..s.a m i neoon m.inc. U But, there is a couple of mills now that have gotten 2252 117 i

48 t *.., mm I to the point where, if we are going to go with "the best 2 reading," we have to convert those -- That is the concurring jurisdiction l? 3 CHAIRMAN HENDRIE: 4 MR. MARTIN: Yes. 5 We are going to have to convert those into 0 Environmental Impact Statements -- 7 CHAIRMAN HENDRIE: And get on with the tailings 8 license. 9 MR. MARTIN: - go thro tgh that. In fact, we are 10 probably on the critical path at this point. We were not when 11 this originally came up. 12 But it is important whatever gets decided be done 13 quickly because I would think in the case of Bokum in New I# Mexico; there is a project in Arizona that is sort of on-again, 15 off-again -- I think it is on today-- those are two that I 16 know of that would be impacted considerably. I7 There is also, of course, these timely renewals that 18 we hnve been urging the staba to get on with -- the states -- I9 so that we could help them if we take this other path. And 20 we are the ones with the sack, and we will have a passle to timely i 21 renewals on our hands again to deal with. I, 22 And I might add, they are very knott, ones. That's 1 23 ) why they are lingering. .I 24 ] CHAIRMAN HENDRIE: And they get knottier with time, 4.s.o m i neoon m.inc. 25 too. 2252 118-

49 .t mm 1 MR. MARTIN: Oh, yes. i 2 CHAIRMAN HENDRIE: Each year that goes by, the 3 facility gets a little more -- rotates a little further away =. 4 from today's view of what the facility should be. And it doesn't 5 take very many years before it gets away, I don't think. i 6 One of the problems, I think, with Sheffield, that 7 some of those cases, after you missed it the first time and a year 8 went by, why it was harder; and two years, it was a whale of I 9 a lot harder; and oh, boy, after that, you know, why terrible. 10 MR. MARTIN: In addition -- and we are experiencing 11 this now in our state assistance, public perception of how it 12 is being handled, gets negative to the point that when you finally j 13 do step up to the line and act on it, you have a major war on l 14 your hands rather than -- where we have not had that in our own 15 licensing cases. The ones in the states, by.the time we have 16 gotten into it and all of them involved hearings, rather messy 17 situations, that gets worse with time, also. 18 CHAIRMAN HENDRIE: I think what we ought to de is 19 the following: 20 Marty, get us the proposed language down. Run it 21 through the cccment channel. Okay? 22 And we will schedule a Commission meeting, because 23 I think we would like to look -- you know there is some new, 24 l seme revised language to fit the sponsors' letter. And we would Ac..s e.i n. corms. inc. 25 llike to look at that in any case, I would think, if we are going i l 2252 119

50 e... _, to send,it forward, or bless it specifically. l I mm l 2 And at that time we hopefully will muster up an l 3 odd number of Commissioners, either one greater or one less than I ~ 4 the present body, and that will permit us to make a decision ~ 5 on one of these directions. And I would hope that we could 6 come up with it in the next week or two. l 7 COMMISSIONER AHEARNE: Next week. 8 MR. MARTIN: Mr. Chairman, one other thing that I 9 think would help the Staff a great deal, at least those of us 10 that would have to implement some of this stuff, is to get a 11 similar admonition to get the draft regulation out here quickly 12 with some of these other legal odds and ends that are trouble-13 some. Id Because that is the operational -- ~ -15 CHAIRMAN HENDRIE: Now what is the timing again on 16 that? I7 MR. MARTIN: Well, it has been written. It is 18 residing in ELD for sometime now. 19 Some offices era very anxious about this. 20 CHAIRMAN HENDRt.E: Where else is it residing, other 2I offices? l t 22 MR. MARTIN: No. 23 CHAIRMAN HENDRIE: Aha, Marty. 24 MR. MALSCH: It is beine worked on. We have finished Ace Feoerst Reporters, Inc. ~ 'S all the legal -- 2252 120 i

51 I mm COMMISSIONER AHEARNE: So you say it is going back to l 2 NMSS? 3 MR. MALSCH: I'm not saying it is officially back. A MR. MARTIN: I think an admonition to get it down 5 here in a week or so would be quite helpful to organize -- 6 CHAIRMAN HENDRIE: Why don't we see if we can crank' 7 up a Mill Tailings Act package which has the proposed legislation 8 in it, and this other paper. I 9 MS. GRAMMER: The legislation could be within a day or 10 so. The other stuff cannot be within a day or so. 11 CHAIRMAN HENDRIE: What is your estimate on it? 12 MR. MALSCH: I have not looked at the regulation T. other than just to focus on the legal questions. I don't know I# what shape they are in. And I don't know, I have to look at them. COMMISSIONER AHEARNE: We really want to get the 16 legislation -- I7 CHAIRMAN HENDRIE: It sounds to me as though it has IO got to be two meetings instead of one. 19 It sounded for a minute like it could all come 20 1 together in a week or ten days. But it sounds to me like we l l 21 better deal with the legislation and the sort of interim will i 22 follow, and the regulations packages as soon thereafter as Iwe can. I 24 Okav? Ac..p.o.rw a.oorwn. inc. 25 MR. BICKWIT: Mr. Chairman, on the timing, if there i i t i 2252 12)

52 e mm I is any hope of attaching this on to the authorization bill, ll 2 you ought to move quickly. l 1 3 COMMISSIONER AHEARNE: That's why I think, get it downl 4 and you can get it to OMB for their comments. t 5 MR. BICKWIT: Yes. 6 CHAIRMAN HENDRIE: I don't know. The committees are 7 marking up tomorrow. l 1 8 MR. BICKWIT: Well, it might have to go on the floor. 9 CHAIRMAN HENDRIE: Well, I think we have done it. 10 COMMISSIONER GILINSKY: Yes. II CHAIRMAN HENDRIE: Thank you. 12 (Whereupon, at 3:20 p.m., the hearing in be { 13 above-entitled matter was adjourned.) 14 l 15 l 2252 122 16 17 18 19 20 21 l 22 23 24 Ace Federal Reporters, Inc. 25 i . _. _}}