ML20031A248
| ML20031A248 | |
| Person / Time | |
|---|---|
| Issue date: | 09/09/1981 |
| From: | Palladino N NRC COMMISSION (OCM) |
| To: | Udall M HOUSE OF REP., INTERIOR & INSULAR AFFAIRS |
| Shared Package | |
| ML20031A249 | List: |
| References | |
| NUDOCS 8109220118 | |
| Download: ML20031A248 (4) | |
Text
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\\.....,o Septeiber 9, 1981 CHAIRMAN
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C The Honorable Morris K. Udall, Chairman S,
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\\] u.a.g7 '3 Subcommittee on Energy and the Environment Connittee on Interior and Insular Affairs United States House of Representatives y
Washington, D. C.
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Dear Mr. Chairman:
i In your letter of July 29, 1981, you requested our views on the amendment j
to the Nuclear Regulatory Commission's Appropriations Bill for fiscal year 1982 (H.R. 4144) offered by Congressman Stratton.
The a.;endment would preclude the expenditures of any appropriated funds "to implement I
or enforce any portior, of the Uranium Mill Licensing Requirements published as iinal rules at 45 Federal Register 65621 to 65658 on October 3, 1980." You also askid for the impact of the amendment on licensing and Agreement State relations, snd on the ability of the Commission to implement the Uranium Mill Tailings Radiat. ion Cc.rol Act (UMTRCA) generally.
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 aatters, Congressman Stratton's concern is clearly those parts of the
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rules that set standards and procedures for the licensing and regulation of uranium mills and mill tailings.
Congressman Stratton also emphasized that the Commission should be prohibited from enforcing those rules.
~ 'The language of the amendment itself prohibits expenditures of Fiscal Year 1982 funds for implementation and enforcement of the 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 repor+s and documents, while at the same time atteripting to minimize additionas, presumably unintended, impacts on the licensing process.
While not all of the impacts of the amendaient can be predicted with accuracy at this time, it is reasonable to expect, on the basis of the discussion that follows, that t~ne amendment would inject significant confusion and delay into the Commission's licensing and enforcemer.t processes.
I should emphasize at the outset that the Commission, in issuing the rules in question, believed that they were sound and responsive to the connands of the Uranium Mill Tailings Radiation Control Act of 1978.
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Honorable Morris K. Udall 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 informatio. 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 scve as a violation of the intent of Congress.
Moreover, it is not lixely that new rules could become effective before the end of the fiscal year to which the Stratton amendaent applies.
Because the amendment does not extend the statutory November 8,1981 wte 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 mill:, and their tailings oa a case-by-case basis, using license conditions to protect public health end safety.
This is the way licensing and regu'latioh 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 existir.g regulations reflect the Comission's belief as to what requirements arc 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 replations.
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 man 3 instances, licenses issued prior to adoption of the regulations cantain 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 tFe intent of tne amendment.
Honorable Morris K. ddall 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 tne Commission to execute such an amendment under the UMTRCA to become effective November 8, 1981 or thereafter, it must find that the Agreement State.has promulgated regulations (or enacted statutes) dealing with land ownership and with public health, safety, ano the environment which are equivalent, to the extent practicable, or more stringent than NRC's promulgated and tnforceable regulations and EPA's cegulations for the sama purpose.
Thus, as a consequence of the amendment, the NRC may not be able to make the required statutory finding on State compliance for two reasons, (i) although promulgated, the yardstick standards would not be enforceable, leaving tha 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 prcmulgated 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
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and referred to with respect to NRC licensing would be applicable to tne agency's activities to implement its statutory responsibilities in Agreement States.
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The Stratton amendment may also haye 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 daughters from
- -the front end of the fuel cycle is sufficiently significant to warrant explicit consideration es a substantive negative factor in the cost-benefit balance for individual power reactors.
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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 decisien was based in part upon testimony which assumed that the current mill tailings regulations would be implemented 6nd enforced, the radon source term determined by the Appeal Board may come into questior. if the Stratton amendment becomes law.
Thus, there is the potential for renewed litigation of this issue in individual reactor license proceedings.
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Honorable Morris K. Udall As you may know, the regulations which are the subject of the atton amendment are currently the subject of judicial review in tht s.S. Court of Appeals for the 10th Circuit.
The Commission is defending 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 thet there should be no final NRC rules until there are final EDA standards.
This is a contested issue, with the Government maintaining that no such restriction applied and that the mandate of the Uranium Mill Tailings Radiation Control Act required prompt NRC rulemaking. Second, Congressman Stratton characterized the NRC rules as arbitrary and capricious. We do not concur in this judgment.
In any event, we believe it is more appropriate for the Court to decide the issa_ 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).
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The regulations promulgated on October 3,1980 were intended to implement the Uranium Mill Tailings Radiation Control Act, as amended.
The overall goal of the Act is to " prevent or minimize radon diffusion into the environment and to prevent or minimize other environmental hazards from such tailings."
(Section 2(a)).
Towards that end section 2(a) requires, "tha t every reasonable effort be made to provide for the stabilization, dispNal, and control in a safe and environmentally sound manner of such tailir.gs...".
The specific purpose of Title II of the Act is "to stabilize and control such tailings in a safe and environmentally sound manner and to minimize or eliminate radiation health hazards to the public."
(Section2(b)).
Accordingly, Title 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 accomplish 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 all the questions raised in your letter.
We would be pleased to respond to further questions if necessary.
Sincerely,
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Ma unzio alladino cc: Honorable Manuel Lujan
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