ML19329F878
| ML19329F878 | |
| Person / Time | |
|---|---|
| Issue date: | 06/22/1978 |
| From: | Stoiber C NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Bradford P, Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| Shared Package | |
| ML19329F857 | List: |
| References | |
| NUDOCS 8007110296 | |
| Download: ML19329F878 (14) | |
Text
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UNITED STATES
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NUCLEAR REGULATORY COMMISSION y
WASHINGTON. D. C. 20555
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%..... J June 22, 1978 MEMORANDUM FOR:
Chairman Hendrie Commissioner Gilinsky Commissioner Kennedy Commissioner Bradford k[CarltonR.Stoiber FROM:
jf Assistant General Counsel 9
SUBJECT:
INTERAGENCY COMMENTS ON NRC'S MILL TAILINGS BILL This memorandum is to inform you of the latest developments regarding comments received from Executive Branch agencies on NRC's proposal to clarify the Commission's jurisdiction over mill tailings.
The Commission's draft bill (See SECY-78-207 and -207A) was sent to OM3 to obtain the views of other affected agencies when the Commission determined that such an initiative would be desirable.
On Wednesday, June 14, 1978, a meeting was called by OM3 to discuss the Commission's draft legislation.
Representatives from OM3, CEQ, EPA, DOE and Department of Interior attended the meeting; OGC, OPE, OELD and NMSS were represented on the Commission's delegation.
During the meeting three agencies raised concerns.about provisions of the NRC draft bill.
After offering a preliminary reaction to these comments, we agreed to review the NRC submission to determine whether the points raised could be accommodated.
During the past several days we have discussed some possible approaches with the other agencies, and have developed some language which might be included in the bill cr transmittal documents.
This memorandum will outline the concerns raised by other agencies and indicate the status of our discussions at the present time.
With regard to most of the agency comments, I believe we are close to reaching a resolution satisfactory to all parties.
By the time of your meeting this afternoon, additional specific language to resolve agency con erns will hopefully have been developed.
Contact:
Carlton R. Stoiber 254-8017 800 7110jih A
The Commission June 22, 1973 Matters Raised by the Environmental Protection Agency The most significant concerns about the bill were raised by E?A, and primarily involved the issue of how EPA's regulatory authority would be affected by the NRC legislation.
1.
The first issue raised by E?A was how the legislation would affect that agency's authority under RECRA
(. Resource Conservation and Recovery Act).
Basically, E?A wanted to be sure that the scope and degree of government control and authority over mill tailings was clear, and that consistent standards would be applied.
A primary concern here apparently involves non-radiological toxic substances which might be found in tailings.
EPA noted that the NRC bill ma"e no reference to RECRA, as did the DOE reclamation proposal which states that any standards developed by E?A under RECRA will be applied by DOE in conduct-ing the program.
Therefore, EPA has suggested that the NRC bill contain some mention of RECRA, with an indication that the Conmission would apply standards consistent with RECRA.
During the CM3 meeting, NRC staff questioned the need for such a provision as being an unnecessary duplication of NRC authority.
However, the Commission should consider whether it might not be desirable to include some reference to how EPA's RECRA authority would be affected by the NRC bill in either the Speaker letter or the section-by-section analysis.
2.
EPA also was concerned about how the legislation wculd affect its authority under the Atomic Energy Act.
We explained that the NRC proposal was not intended to abregate any of EPA's general authority to set ambient radiation standards.
We agreed to develop language to make that fact clear, and have suggested Oc E?A that the matter be handled by including the following language on page 2 of the Speaker letter:
"On the other hand, Atomic Energy Act authority transferred to I?A under Reorganization Plan No. 3 cf 1970 would permit EPA to establish ambien:
environmental radiation standards fcr the new class of byproduct materials."
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9 The Commission June 22, 1978 After considering our proposal, EPA has expressed a preference for placing language of this type -- at i
least -- in the section-by-section analysis of the NRC bill and perhaps, to make the matter absolutely clear, also in NRC's proposed bill.
3 EPA also mentioned that the definition of byproduct material contained in the NRC bill would not extend Commission licensing authority to mills which were using feed stock of less than 0.05 percent uranium.
Apparently there are some mills using such material to extract uranium.
We agreed that this defect should be cured, and suggested that the definition used in the'NRC bill be amended.
We would propose removing the reference to section 11(:)(2) of the Atomic Energy Act, and to define byproduct material as including "the naturally occurring daughter of uranium and thorium found in tailings or wastes produced by the extract of concentrations of uranium or therium frcm any ore crocessed crimarily for its 4
scurce material content."
(Underlined material is new.)
DOE has reviewed this proposed languaSe change and asked how this definition would apply to phosphate tailings which might be processed for their uranium content.
In our view, such activities should be subject to NRC licensing; however, there may be some remaining ambiguities in the definition which should be clarified.
i 4.
EPA also raised the issue of how mill tailings trans-ferred to federal ownership under the statute would be regulated, and expressed the view that NRC regulation of such tailings would be desirable.
This also raises the question which arose during the hearings before Congressman Dingell, namely whether NRC legislation should include some provision for NRC monitoring of reclaimed mill tailings piles after DOE's reclamation program has been completed.
In the Dingell hearings it was agreed-that NRC would develop some alternatives in this regard.
Matters Raised by DOE The Department of Energy was primarily concerned about i
the relationship between the NRC proposal and its cwn tailings reclamation bill (H.R. 12535).
DCE suggested i
that some language in the NRC bill or accompanying l
a
The Cc mission 4-June 22, 1978 caterial should be made to make it clear that sites covered by the DOE program would be exempted from any requirement for NRC licensing.
It would be desirable to clarify the fact that NRC does not intend to dupli-cate DOE oversight during the reclamation phase.
Ecwever, the question mentioned above, about what regulatory. oversight might be appropriate with respect to reclaimed sites after the DOE program has been concluded still requires an answer.
Matters Raised by the Decartment of Interior 1.
Interior was primarily concerned that the regime estab-11shed by the NRC bill would not provide an opportunity for Agreement States to impose their regulatory authority on self-governing Indian tribes.
By making mill tailings a licensable byproduct material, the bill could have the potential for such a result.
Since at least four mill tailings sites are owned by Arizona's Navajo tribe, this matter is of some concern to Interior, in its capacity as trustee for the tribe.
We suggested handling the matter by the following insertion en page 4 of NRC's Speaker letter:
"In this context, we would view Indian lands as federally owned lands as legal title was held in trust by the United States.
All such lands were subject to a resolution on aliena-tion imposed by the United States.
The pro-vision is not intended to affect the legal relationship of self-governing Indian tribes to the United States or to the several states."
After considering this language, Interior has expressed doubt about whether our suggested approach adequately deals with the problem.
Therefore, it may be desirable to include in the statute some specific mention of how mill tailings sites on Indian reservations would be handled.
2.
Interior also questioned the desirability of an explicit statutory exclusion of NRC as an agency which might have custody over an abandoned er donated mill tailings site.
CM3 agreed that it would be better to leave the matter to resolution by the President.
It would seen reasen-able to expect that the President would recognize the inappropriateness of giving a strictly regula cry agency l
^-
T The Cc::: mission June 22, 1978 a land cus:cdy role.
Therefore, we believe that the statutory exclusion of NRC could be removed from the bill.
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e ENCLOSURE 7
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.iXECUTIVE OFFICE OF THE
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- OFFICE OF MANAGEMENT AND BUDGET WASHINGTON. O.C. 20503
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Honorable Jennings Randolph Chairman, Committee on Environment
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and Public Works i
United States Senate i
Washing ton, D.C. 20510 4
Dear Mr. Chairman:
The purpose of this le tte r is to provide you with the Administration's views on the dif fering House and Senate-passed versions of S. 562, " Nuclear Regulatory Commission A u tho r iz a tions. "
Your assistance in making these views available to the con ferees will be appreciated.
Emergency Planning and Reactor Licensing Bo th the House. and Senate bills contain new and compre hen s ive provisions on the re la ticn ship o f S ta te p lann ing for rad io-logical emergencies with nuclear re ac to r licensing.
Section 20 2 of the Se n a te version makes (1) iss uance of ope ra ting licenses for nuclear re acecrs con tingen t on ':uclear Regulatory Ccamission (NBC ) con curre n ce in a S ta te 's eme r-gency response plan and (2) con tinued opera tion of currently licensed plants contingent upon a State having an approved p'lan by June 1, 1980.
The section also provides new authori-ties for de velopmen t by ';RC of critetia and standards for assessments of State plans and provides tha t the se activitie s be carried out in consultation with the Slrector of the Federal Emergency Mar.s@mac 6@ncy GEMA).
Certain minimum requirements for State plans are spe c ified.
Al te rn a tive ly, Section 104 o f the House bill provides tha t NRC shall (1) establish, by rule, standards for response plans, (2) re view plans to assess
- their adequacy,.and (3) re por t on de termina-tions to the Congre ss.
With respect to licensing re s tr ic tion s, the Adminis tra tion concurs with the views already expressed to the con ferees by the NRC that any such restrictions be provided through rule-c.ak ing ins te ad of s ta tute.
- e belie ve that admin is tra tive fic xibility is essential in th is arca, and accordingly, we urge the dele tion of these res trictions during con fe re r ce.
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EXECUTIVE OFFICE OF THE. dESIDENT l 6 /}
OFFICE OF MANAGEMENT AND BUDGET WASHINGTO N. O.C.
20503
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Honorable Morris K.
Udall l
Chairman, Committee on In te rior i
and Insular Affairs U.S. House of Representatives I
Wash ing ton, D.C. 20515 i
l
Dear Mr. Chairman:
The purpose of this le tter is to provide yc: w i th the Administration's views on the dif fering House and Senate-passed versions of S. 562, " Nuclear Reg ula tory Commission A u thori z a tions. "
Your assis tance in making the se views available ~ to the con fe ree s w ill be appre cia tec.
Emergency Planning and Reactor Licensing So th the House and Sena te bills con ta in new and comprehens ive provisions on the re lationship of S ta te planning for rad io-logical emergencies with nuclear reactor lice n s ing.
Se c tion 20 2 o f the Sena te version makes (1) issuance of ope ra ting licenses for nuclear reactors contingent on nuclear Regulatory Commission (NRC ) con curren ce in a S ta te 's eme r-gency response plan and (2) con tinued ope ra tion of currently licensed plants contingent upon a State having an approved plan by June 1, 1980.
The section also provides new authori-ties for development by NRC of criteria and standards for assessments of State plans and provides tha t the se activities be carried out in consulta tion w ith the Director of the Federal Emergency Managemen t Agency (FEMA).
Certain minimum requiremen ts for Sta te plans are spe ci fied.
Al te rn a tive ly, Se c tion 10 4 o f the House bill provides tha t NRC shall (1) establich, by rule, standards for response plans, (2) re v iew plans to assess their adequacy, and (3) report on determina-tions to the Congre ss.
- ith re spect to licensing res trictions, the Adminis tra tion concurs wi th the views already expressed to the con ferees cy the NRC tha t any such restrictions be provided thrc ugh rule-T.a h ing ins te ad o f s ta tu te.
"e be lie ve that adminis tra tive fle xicility is essential in th is area, and ac co rd inc l y, we urge the cele ticn of these res tricticne d uring con fe ren ce.
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.::XECUTIVE OFFICE OF THE...ESIDENT l :,/)
OFFICE OF MANAGEMENT AND SUOGET WASHINGTON, D.C.
20503 Honorable Morris K.
Udall l
Chairman, Committee on Interior
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and Insular Af fairs i
U.S. House of Represen ta tive s Washing ton, D.C. 20515
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Dear Mr. Chairman:
. The purpose of this le tte r is to provide you with the Administration's views on the dif fering House and Senate-passed versions of S.
562, " Nuclear Reg ula tory Commission A u tho r i z a tion s. "
Your assis tance in making these views available to the con feree s will be appre cia te d.
Emergency Planning and Reactor Licensing Both the House and Sena te bills con ta in ew and com,-ra he n s i ve provisions on the relationship of S ta te planning for r ad io-logical emergencies with nuclear ra s c to r licansing.
Se c tion 20 2 o f the Senate version makes (1) iss uan ce of ope ra tin.
licenses for nuclear reactors con tinge n t on Nuclear Regulatory Commission (N RC ) concurre n ce in a S ta te 's eme r-gency response plan and (2) con tinued _ ope ra tion of currently licensed plan ts con tinge n t upon a S ta te having an appro ved plan by June 1, 1980.
The section also provides new authori-ties for de velopment by NRC of criteria and standards for assessments of State plans and provides tha t the se activities be carried out in consultation with the Director of the Federal Emergency Managemen t Agency (FEMA).
Certain minimum recuiremen ts for State plans are spe c i fied.
Al te rn a tive ly, Section 104 of the House bill provides tha t NRC shall (1) establish, by rule, standards for response plans, (2) re view p,lans to assess their adecuacy, and (3) re por t on de termina-tions to the Congress.
sith respect to licensing re s trictions, the Adminis tra tion concurs with the views already expressed to the con ferees cy the NRC th a t any such re s tr ic t ion s be prc vide d th rc eg h rule-making ins te ad o f s ta :u te.
- e ue lie ve that ad.in is tra tive fle xicility is essen tial in th. s area, ard a c co rd ing ly, we urge the cele tica of the se restr ut:.cns f.:r ing ccn fe rence.
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3 Recuirements for Notice of Nuclear Uaste Shipments
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Notice to States.
Both versions of S.
562 contain require-ments for notice to be provided to the States for certain nuclear was te shipments.
The Senate language is in Section 210 and the House language is in section 105.
The Department of Transportation (DOT) has previously expressed the view that such a statutory provision is unnecessary since the Executive already has the authority to reqeire such notifica-tion and is exercising it via the rulemaking process.
With regard to the specific provisions, Section 210 of the Senate bill is clearly preferable to section 105 of the House bill because it would allow the NRC to exempt certain types and quantities of was te.
There are approximately 150,000 packages of commercial radioactive waste that are transported annually and which are comprised, in large part, of rela-tively harmless radiopharmaceutical waste material.
Absent such an exemption mechanism, the States would be ficoded with essentially uninportant notifications.
Preferable to either version, hcizever, would be a provision
.here the notification requirement is confined to the types of ship ents about which people are nost concerned because of the possibility, however prchie.matical, that a transpoctation accident could result in a catastrophic release of radiarion.
Accordingly, DOT recommends that the notification provision in S.
562 be amended by adding the wcrds "high-level" (and in the Senate version, removing the ' language giving the NRC exemption authority), so that in pertinent part the bills would read:
"The (NRC]
shall promulgate regulations providing for timely notifications prior to the transpor: of high-level nuclear waste, including spent fuel With such an amendment, notification would be preserved for those shipments containing large quantities of radioactivity, and the NRC would be relieved of the responsibility of establishing the exempt categories by regulation.
We note that although it has a generally understood meaning as a term of art, there is presently no statutory or regulatory definition of high-level nuclear waste and the NRC would h_.-e to develop one by regulation.
Foreicn-Flac Vessels.
There is another aspect.cf the n o t i f i-cation provision, should it be enacted, that the Capart. ment would like to ' address.
The preaant HUesa and Senate versions tould both cover transport by o?sels.
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that this should be made explicit.
Mder eccepted ar;nciples of international law, a country ty o: unilaterally teqcire notification of entry into terriaccial ta '. ; r s (2nd hence across a State bouniary) by dereign-flag
- c2 als :1 ' : 3re
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5 movement of special nuclear material or byproduct material by any mode, and any loading, unloading, or storage incidental thereto; (2) the term " commerce" means trade, traffic, commerce, or transportation, within the jurisdiction of the United States, (A) between a place in a State and or (B) which affects
^
any place outside of such State, trade, traf fic, commerce, or transportation described in clause (A); and 2
(3) the term " nuclear waste storage installation"
-means a facility or area the purpose of which is to contain nuclear byproduct material.
i Safecuards Information t
t A number of issues relating to Section 302(a)(1) of the House-passed bill have been identified by concerned Executive branch agencies.
These agencies are currently working with NRC to address these concerns.
In the near future, we the anticipate advising the conferees on whether or not Afministracion favors such a provision.
In any event, it is likely that we will be recommending substantive changes.
Other Provisions Finally, the Administration recori.e nd s that the following provisions be deleted.
Ce believe that those types of prov is ions (1) provide unnecessarily fetailed guidance en matters which should be left to the discretion of the Commission; (2) impose an unnecessary administrative and workload burden on the Cormission at a time when resources should be devoted to more urgent substantive natters; and (3) are already underway.
would duplicate many activities that Accordingly, we strongly recommend that the fcilowing be omitted from the conference bill:
1.
The language in Sections 101(a)(2), (4), and (6) of the Senate and House bills and section 101(a)(7) of the Senate bill which specify the number of personnel to be assigned to a particular activity.
Such recuirements hamper effective personnel management and, to the ce s t of our. knowledge, are unprecedented in NRC authorizing legislation; 2.
Sections 101(c) and (d)(2), respectively, of the Senate and House bills uhich would require the estaolishment of a Senior Contract Keview Ecarf.
The discretion to estaolish and disestablish a Ocard should re.:iin cith the t
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merely transiting through such waters.
With respect to foreign-flag vessels, therefore, the notification requirement should apply only when such a vessel is beund for a U.S.
Port.
Therefore, we would suggest the following changes in the two versions of S.
562.
In the House v'ersion, that the period at the end of the first sentence of section 105(a) be changed to a comma, and that the following language be added:
"provided that, in the case of a foreign-flag vessel enter.ing the territorial waters of the United States, such notifica-tion shall be required only where such vessel is bound for a United States port."
In the Senate version, we would recom-
~
mend that, in Section 210, the colon immediately before the j
proviso be changed to a comma and the following language j
added:
"except that, in the case of a foreign-flag vessel entering the territorial waters of the United States, such i
l notification shall be required only where such vessel is bound for a United States port Sabotage of Nuclear Facilities Section 212 of the Senate bill and Saction 303 of the House bill establish criminal sanctions for acts of sabotage involving nuclear facilities.
Althcugh the possible fine appears to be unrealistically low in the House bill, DCT much prefers the language in the House provision, which extends coverage to certain aspects of transportation.
As the House provision now stands, however, applicability of Section 303 is unnecessarily restricted to those instances when the special nuclear material or byproduct material is actually in a transportation vehicle.
The present House wording, "in a carrier," would not provide coverage under the provision for the material when it is in the hands of Lthe shipper or when it is being loaded, unicaded or stored incident to carriage.
DOT strongly urges that Section 303 of the House bill, with the following changes, be adopted by the conference committee, in lieu of Section 212 of the Senate bill.
- First, that the conference replace the possible S1,000 fine in the House provision with the S10,000 figure contained in the Senate bill.
Second, and most importantly, that the ecrds
" contained in a carrier" in Section 303(a) of t'he Housa till be' replaced with the following language:
"during its transportation in commerce..."
If this change is made,
Section 303(b) should be revised as follcus:
(b)
(1) the term "transporta;:.on" refers to any
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di Connicsien; otherwise, it vill likely remain a t.creanent
..j feature of the Cornission uhether needed or not;
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3.
Section 101(c) ~ of the F*ouse bill requires a najority vote i
by the Co.T.ission before entering into any contract, in excess of $20,000, for research, study, or technical assistance en domestic safeguard catters.
- Te believe i
that the time of the Cercissioners should not be unduly 5
diverted from matters of more prcasing national concern.
Morcover, this kind of activity should be the responsi-bility of the chair =an as princinal executive officer,-
working within the policies established by the Commission.
The proposed language uculd undcraine the ability of the chaircan to free the Commission of I
involvement in.inplementing detail; and 4.
Sections 106, 204, and 206 of the Senate bill impose an additional workload burden on the Commission at a time vhen efforts are already being concentrated on sinilar activitics and other high priority tasks.
P.cspectively, these secticas require (1) an inde c: dont revicu of the dc:: mission's r.:anagement structure, ;.rocess, precedures, c.nd opcrations; (2) ;.<etcration aad
.uclication of a
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In clas:.nc, we urne the ccnferees to vo coc.:i cat cf tho
- .60a ucc,u.occ and" prog ra:.c.s tic cna. ceninis" trative cc:. plex-itics unich vill likciv roccit if the aforementioned cravi-l Lions cre :.::cluded in the conference bill.
Also, as notsd n
ti:e COL.nission's January 13, l! !'O le t te r to the conf o r ce s,
i the Cennissicn is developing an Action Plan which
... will t
c,.inc olida te and prioritinc all of the issues which have been identified as a result of the varicus T:!I reviews."
As you kncu, Co: nis s ion impler.catation of the Action Plan vill be a j
significant and essential undertaking.
ie urge that addi-tional workload burdens on the Concission bc :-inimi:cd so that impler:.catation of the Action Plan, once approved, can proceed in the most efficient and respancive manner.
s Sincerely, (Sis =ed) '
fam McInt#:
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ENCLOSURE 8
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