ML20031A245
| ML20031A245 | |
| Person / Time | |
|---|---|
| Issue date: | 09/09/1981 |
| From: | Palladino N NRC COMMISSION (OCM) |
| To: | Simpson A SENATE, ENVIRONMENT & PUBLIC WORKS |
| Shared Package | |
| ML20031A246 | List: |
| References | |
| NUDOCS 8109220112 | |
| Download: ML20031A245 (4) | |
Text
.
J
[
UNITED STATES E\\
NUCLEAR REGULATORY COMMISSION
~
e f,
- :j WASHINGTON, D. C. 20555
+*
September 9, 1981 CHAIRMAN W
,(6
,a r yu s
6LN The 'ionorable Alan K. Simpson, Chairman 6}, SEP 14198W ~3 Subcomittee on Nuclear Regulation
,'p*"w" sam 8 Committee on Environment and Public Works 0
c United States Senate Washington, DC 20510 y
m
Dear Mr. Chairman:
In your letter of July 31, 1981, you requested our views on the amendment to the Nuclear Regulatory Commission's Appropriation Bill for fiscal year 1982 (H.R. 4144) offered by Congressman Stratton that would preclude
~,
the expenditures of any appropriated funds "to implement or enforce any portion of the Uranium Mill Licensing Requirements published as final rules at 45 Federal Register 65538 on October 3, 1980." You asked specifically for our views on the impact of the amendment on NRC licensin'g and regulation of both new and currently operating mills in non-Agreement States, on the requirements that Agreement States must meet in order to retain authority over tailings after November 8,1981, and on any other licensing and regulatory activities of the Comission.
The brief legislative record for this amendment (see Cong. Record for July 24,1981, p. H 4873) indicates that despite the broadly inclusive reference to a Federal Register notice that covered several other matters, Congressman Stratton's concern is clearly those parts of the rules that set standards and procedures for the licensing and regulation of uranium mills and mill tailings.
Congressman Stratton also emphasized I
that the Commission should be prohibited from enforcing those rules.
The language of the amendment itself prohibits expenditures of Fiscal j
Year 1982 funds for implementation and enforcement of ihe rules.
Should the amendment be finally adopted by the Congress, NRC will endeavor to interpret it in a manner which is faithful to the intent of Congress as reflected in the relevant legislative reports and documents, while at t
the same time attempting to minimize additional, presumably unintended, impacts on the licensing process. While not all of the impacts of the amendment can be predicted with accuracy at this time, it is reasonable to expect, on the basis of the discussio.n that follows, that the amendment would inject significant confusion and delay into the Commission's icensing and enforcement processes.
I should emphasize at the outset that the Comission, in issuing the rules in question,- believed that they were sound and responsive to the comands of the Uranium Mill Tailings Radiation Control Act of 1978.
8109220112 810909 PDR COMMS NRCC s
CORRESPONDENCE PDR
(
Honorable Alan K. Simpson The Commission could, nonetheless, undertake the promulgation of new regulations.
This, however, would be a lengthy process.
New rules could be proposed and adopted, on the basis of existing information which represents the best and most complete information available today, taking into account, of course, the criticisms expressed to date.
Alternatively, the new rules might be based on new information.
- However, development of a new information base and supporting environmental review would be time consuming.
New regulations developed in either fashion could be similar to the present regulations but would not be literally subject to the amendment; it is probable, however, that any new rules which are not substantially different from the present rules would be viewed by some as a violation of the intent of Congress.
Moreover, it is not likely that new rules could become effective before the end of the fiscal year to which the Stratton amendment applies.
Because the amendment does not extend the statutory November 8, 1981 date for Agreement State compliance with UMTRCA, the promulgation of new regulations would not avoid the amendment's impact on the Agreement State program as described below.
In the absence of enforceable regulations, the Commission can, of course, regulate uranium mills and their tailings on a case-by-case basis, using license conditions to protect public health and safety.
This is the way licensing and regulation were accomplished prior to promulgation of the current regulations.
This process presents the likelihood, however, of protracted litigation in both the NRC adjudicatory process and the courts for two reasons.
First, because the existing regulations reflect the Commission's belief as to what requirements are achievable for protection of the public health and safety and carrying out the mandate of UMTRCA, its licensing position would probably reflect the need for conditions similar to those which would be imposed under the regu?ations.
Imposition of such conditions could be challenged in
- each case as lacking a proper basis; a full adjudication of the merits of each challenged licensing condition (normally precluded by the existence of a rule) would be required upon request.
Second, while we believe that imposition of such conditions would not violate the Stratton amendment, this proposition could also be litigated by those who regarded any particular licensing condition as inconsistent with the intent of the Stratton amendment.
A similar problem arises with respect to outstanding licenses which incorporate conditions reflective of the current regulations.
In many instances, licenses issued prior to adoption of the regulations contain requirements that are similar to the requirements in the regulations.
While enforcement of these existing license conditions would not. violate the letter of the Stratton amendment's proscription against enforcement of the regulation, there remains the possibility of litigation over whether such enforcement violates the intent of the amendment.
i
y l
Honorable Alan K. Simpson L l
The capacity of the Commission to execute amendments to agreements for Agreement States to continue licensing and regulation of uranium mill tailings would also be drawn into question.
In order for the Comission to execute such an amendment under the UMTRCA to become effective November 8, 1981 cr thereafter, it must find that the Agreement State has promulgated regulations (or enacted statutes) dealing with land ownership and with public health, safety, and the environment which are equivalent, to the extent practicable, or more stringent than NRC's promalgated and enforceable regulations and EPA's regulations for the same purpose.
Thus, as a consequence of the amendment, the NRC may not be able to make the required sMtutory finding on State compliance for two reasons, (i) although promulgated, the yardstick standards would not be enforceable, leaving the NRC no standard for evaluation of the State program as required by law, and (ii) review of Agreement State submittals based upon the codified regulations could also be seen as an implementation of the regulations and thus proscribed.
In view of these potential inhibitions, the Commission may be precluded from executing amended agreements.
As noted above, it is unlikely that new regulations could be promulgated before November 8,1981 to obviate this result.
In the absence of amended Agreements, after November 8,1981, licensing and regulation of mill tailings in Agreement States will devolve upon the NRC, and all of the licensing problems engendered by the amendment and referred to with respect to NRC licensing would be applicat.le to the agency's activities to implement its statutory responsibilities in Agreement States.
The Stratton amendment may also have an impact on power reactor licensing proceedings.
It has been a contention in many cases that the radiation dose to the public attributable to radon and its decay d&ughters from
- -the front end of the fuel cycle is sufficiently significant ',o warrant explicit consideration as a substantive negative factor in the cost-benefit balance for individual power reactors.
This recurring issue has been partially resolved on a generic basis in a recent Appeal Board decision which determined, after development of a full adjudicatory record, a radon source term to be used in cost-benefit analyses associated with reactor licensing cases.
Because this decision was based in part upon testimony which assumed that the current mill tailings regulations would be implemented and enforced, the radon source term determined by the Appeal Board may co m into question if the Stratton r tential for renewed litigation amendment becomes law.
Thus, there is the o
of this issue in individual reactor license proceedings.
~
Honorable Alan K. Simpson As you may know, the regulations which are the suoject of the Stretton amendment are currently the subject of judicial review in the U.S. Court of Appeals for the 10th Circuit.
The Commission is dernding the regulations as sound and validly promulgated.
In his remarks on the floor of the House, Congressman Stratton made two statements which are contrary to the Government's position in that litigation.
First, Congressman Stratton stated that there should be no final NRC rules until there are final EPA standards.
This is a c9ntested issue, with the Government maintaining that no such re;triction applied and that the mandate of the Uraniuni Mill Tailings Radiation Control Act required prompt NRC rulemaking.
Second, Congressman Stratten characterized the NRC rules as arbitrary and capricious. lie do not concur in this judgment.
In any event, we believe it is more appropriate for the Court to decide the issue based upon the full rulemaking record under Administrative Procedure Act standards of review, than for it to be decided on the basis of a brief legislative hearing principally focused upon the cost of the Department of Energy program under Title I of the Uranium Mill Tailings Radiation Control Act.
We note that the NRC regulations do not apply to Title I remedial actions.
See 10 CFR 40.1 and 40.2a(a).
The regulations promulgated on October 3,1980 were intended to implement the Uranium Mill Td11ings Radiation Contr01 Act, as amended.
The overall goal of f.he Act is to " prevent or minimize radon diffusion into the environment and to prevent or minimize otner envircnmental hazards from such tailings."
(Section 2(a)).
Towards that end section 2(a) requires, "that every reasonable effort be made to provide for the stabilization, disposal, and control in a safe and environmentally sound manner of such tailings...".
The specific purpose of Title II of the Act is "to stabilize and control such tailings in a safe and environmratally sound manner and to minimize or elimir. ate radiation health hazards to the public." (Section 2(b)).
Accordingly, Tith II of the Act requires a tailings control regime that eliminates, or reduces to the maximum extent possible, any need for long-term maintenance and monitoring.
(Section 203).
The regulations in question were designed to acccmplish these goals.
They were considered to be a reasonable means of achieving the stated goals and purposes of the Uranium Mill Tailings Radiation Control Act.
I believe that this letter responds to ali the questions raised in your letter. We would be pleased to resoond to further questions if necessary.
Sincerely,
~
' ~ h.d
~
f y
Nunzio adino
~
cc: HonoraMe Gary Hart
.