ML20043F287

Responds to Request for NRC Opinion on Extended Definition of 11e.(2).NRC Believes Statutes & Regulations Consistent W/Atomic Energy Act & Texas Amended Agreement

ML20043F287
Person / Time
Issue date:	01/29/1990
From:	Doda R NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION IV)
To:	Miller V NRC OFFICE OF GOVERNMENTAL & PUBLIC AFFAIRS (GPA)
Shared Package
ML20043F230	List: ML20043F228 ML20043F240 ML20043F245 ML20043F250 ML20043F253 ML20043F259 ML20043F263 ML20043F267 ML20043F270 ML20043F275 ML20043F278 ML20043F280 ML20043F281 ML20043F283 ML20043F284 ML20043F287
References
FOIA-TUYL90-36 NUDOCS 9006140330
Download: ML20043F287 (34)

Text

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g PEPORANDUM FOR: Vandy L. Piller, Assistant Director for State Agreements Progran FROM:

Robert J. Doda State Agreerrents Officer SlWECT:

TEXAS' DEFINITION OF 11e.(2) BYPRODUCT PATERIAL You asked for our opinion regarding the extended definition of 11e.(2) byproduct material used by the state of Texas, as follows:

" tailings or wastes produced by or resulting from the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content, including discrete surface wastes resulting from uranium solution extraction processes, and other tailings having similar radiological characteristic 3."

As you know, Texas has included the underlined words in this definition in their regulations since the early 1980s, when Texas obtained their amended agreement for the regulation of uranium mills and tailings. This definition is contained in the Texas Radiation Control Act and, thus, is a part of the state's current statutory authority.

During 1987, the Texas definition was questioned with respect to competibility with NRC regulations, by a citizens group, Citizens for Closing the Conquista Tailings Pond (CCCTp). NRC's response at that time is repeated below:

The NRC staff is aware that Texas statutes and regulations contain a Section 11e.(2)yproduct material which is broader than that contained in definition of b of the Atomic Energy Act of 1954, as amended (Act). The Texas definition has the effect of subjecting other residues which have radiological characteristics similar to uranium and thorium mill tailings to the same stringent requirements applicable to uranium and thorium mill tailings. This is a conservative approach from a safety and environmental standpoint that is an exercise of Texas' plenary power. There could be a potential problem, however, in the event Texas desires to transfer ownership of the tailings site to the Federal government rather than the StateassumingownershipsincetheFederalSection11e.(2)definitionof byproduct material would then be controlling. Federal ownership of the tailings may be precluded if significant quantities of residues not meeting the Section 11e.(2) definition are present. We believe Texas is aware of this factor. We believe the Texas statutes and regulations are otherwise consistent with the Atomic Energy Act and the Texas amended agreement."

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1 Memorandum for Vandy L. Miller The Atomic Energy Act of 1954, as amended, in Section 23, Ownership and Custody ofCertainByproductMaterialandDisposalSites,)givesstatestheoptionof transferring lend used for the disposal of 11e.(? byproduct material to the state in which such land is located. This provision taken in concert with responsibilities given to states by the Low Level Radioactive Waste Disposal Act of 1960, give States broad authority in how they will make available disposal capacity provided that the public health and safety is adequ6tely protected. Therefore, we believe the waste disposal activities allowed by Texas' extended definition of 11e.(2) byproduct material are within Texas' authority. Whether these activities should be authorized under an extended definition of 11e.(2) byproduct material as Texas has chosen, or by some other means, is a question of policy.

Af ter discussions with the Regional Adrrinistrator, it is his viewpoint that Texas be urged either to change its extended definition back to the exact wording of NRC's definition, or to limit its application to only those materials covered by NRC's definition until such time that NRC completes a reassessment of the applicability of this definition. At the completion of such reassessment, Texas would be expected to conform its definition with NRC's definition for compatibility purposes.

ORIGINAL SIGNED ET 80EATD.MMGM b,

Robert J. Doda State Agreements Officer bet:

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p-ATTACHMENT T

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g-y ATTACHMENT 1 Summary of Waste Streams Generated at Rhone-Poulent, Inc. Rare Earths facility, Freeport, Texas I

(November 1986) i sere eer6s nyerestee tenetves in eruns free Frente) o

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RADIONUCLIDE ANALYSIS REPORT 1100 ' Jest '9th St:eeg Austin. Ter.as 78756 isu of Radiat1En Centrol as Departtent of Health O A unreste:cted Are l

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APPENDIX 3 GANGUE I SPECIFICATION DATA i

t 1.

ant Ybl5 l

A.

Chemical Component 1.

Water 30 50 Th(NO).

0.5 1.5 3

3 i

Th (PO.).

1-4 0.1 Us NO U3 P0..

0.2 2 10 RE(NO a RE P0.

10 20 Filter Aid 40 60 HNO:

1-4 pH 1-2 6

Radiological Parameters Activity 3.3 x 10*8 mci /g Gamma (Surface) 2-5 mr/hr

!!. PACKAGE Container Type: 55 gallon open head steel drum Closure Device: Bolted lock ring Label Type:

Radioactive LSA Weight:

Required on each drum Serial Number:

Requ' ired on each drum

!!!. SHIPPING INF0PNATION Proper Shipping Name: Radioactive Material. Low Specific Activity

'(or LSA), N.0.5. UN 2912 Principle radionuclide: Natural Uranium, Natural Thorium Transport Group: !!!

Label Type: Radioactive LSA Physical Form: Solid Chemical Form: Nitrates and Phosphates Salts Activity: Based on net weight of the material Package Type:

U.S.A., 0.0.7. 7A Type A l

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t-APPINDlt 3 GANGUE 11 SP[CIFICA110N DATA i

1.

AfdtV515 A.

Chemical Component 1

Water 20 30 10 20 Filter Aid e

NH.N03 10 20 Butyi Phosphates 5 15 Rare [arth Carbonates 5 15 Thorium Carbonate 0.51.0 Uranyl Carbonate 0.5 3.0 Calcium Carbonate 0.1 0.5 f ron Carbonate 10 15 Barium Sulfate 10 15 B.

Radiological Parameters Activity 3 x 10** mci /g Gamma (Surface) 25 100 mr/hr

11. PACKAGE.

Container Type: 55 gallon open head steel drum Closure Device: Bolted lock ring label Type:

Radioactive L5A Weight:

Required on each drum t

Serial Number:

Required on each drum 111. SHIPPING INFORMATION Proper Shipping Name: Radioactive Material. Low 5pecific Activity (LSA). N.O.$. UN 2912 888 and daughters Principle Radionuclides: Ra888, Ra Transport Group: I Label Type: Radioactive LSA l

Physical form: Solid Chemical Forn: Cartonate and sulphate as Barium and Calcium Coprecipitates Activity: Based on net weight of the material Package Type:

U.S.A., 0.0.T. ?A Type A

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Radiological Parameters Ac tivi.ty 4.5 a 10** Ci/g Garna(Surface) 20 40 mr/hr l

11. PACKAGE i

A, inside Container: 30 Gallon Steel or Plastic Drum with Screw Top Closure B.

Outside Container: 55 Gallon Open Top Steel Drum (U.S.A.,

O.0.T.1711) i Closure Device: 5/8" bottled lock ring Absortant Naterial: Fill all void space with absorb all Label) Two radioactive yellow !!, one oxidizer, and one this side up Weigh't: Stencil on gross weight of drum in pounds Marking: Thorium nitrate, radioactive asteria'1, NA p171 U.S.A.

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0,0.T. 7A Type A Seal: The drum must have a security seal

!!!. 5 HIPPING INFORMAil0N Proper'$ hipping Name: Thorium nitrate, radioactive material NA p171 Principle Radionuclide: Thorium 232 Transport Group:

111 Label Type: Redirictive yellow 11, and oxiditer Physical Form: 11 quid Chemical Form: Hi t ra te Activity: Sasert mi net weigh:.il the thorium nitrate Package Type:

ti.'..A., 0.0.1. li. Type A

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ATTACH > TNT G 1

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Chapter 11 A - Description of Facilities A.

Plant Purpose i

Rhone-Poulenc Inc. is planning to construct a plant for the production of i

separated rare earths (REs) and associated products from monesite ore.

l When completed, the plant will process 8,000 metric tons per year of r3 4~-

ore, and wil) produce a wide line of products duplicating the existing plant in 14Rochelle, France. We are taking full advanta9e of radiation l

measurements and operating problems emperienced in that plant to improve i

on the design for the Freeport site.

construction, which will be in three phases spread over five years, will be at Rhone-Poulene Inc's existing fine chemicals facility in Freeport Texas. In Phase 3, we will import treated senatite, in the form of a RE hydroxide centrifuge cakes pr6eess it to recover tanthane, serium, neodywium, mixed heavy rare earths, and a mixed neodymium praseodymium stream as products along with by-product streams of thorium, uranium, and ansonium nitrat.es.

/ Phase.!! will add the capability to consume raw monatite ore, a to recover I a pure praseodymium stream. It will also provide for a more diversified line of rare earth products, and for the recovery of a trisodium phosphate l

by-product of the monasite ore attack.

Phase III will again diversify product finishing capabilities.

l s.

Process riow Diagram - Attached c.

Facilities Description 1.

maw Materials a.

storage Area and Amount As shown on the attached plot plan, rigure 1, we have one central storage area for raw asterial. We can store up to d,000 tons (s one-half wame'- m *f af rare ameth hvArad as reham-vi -

up to 16,000 tons (a two year supply) of monasite (Phase III). Both math in shipping bags until used ( bag speci-fications are attached in Appendix 1). All rare earth hydroxide j

is stored on a surbed, sloped, sement slab, so that all drainage can be collected and sampled for contesination before being relened.

In the event of a spill, the pad will f acilitate collection of washing solutions for disposal. Both raw materials will be hand 1td by forklif ts and moved to the processing building.while still in their shipping containers.

b.

Handling and Exposure Attached, as Figures 2 and 3, are sketches of rare earth hydroxide and monesite storage arrays, and their espected radiation levels based on actual measurements of a typical RE hydroxide shipping e.

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t ATTACHMENT I Texas Department of Health 11(O West 49th Street Robert A Maclean. M D Austin Temas 7675tr3199 Deputy Commessionet Robert Bernstein. M D I A C P Commissionce Professional $eryges i

(512)456 7111 Hermas L. Miller Deputy Commas.once i

December 12. 1986 Management and Administration i

l i

I Mr. T. Newton Millen Mr. Walter J. Balta l

Office of General Counsel Cox & Smith q

Texas Departzent of Health 600 National Bank of Comunerce 1100 West 49th Street Building Austin Texas 78756 San Antonio. Texas 78205 l

1 Mr. Stuart N. Henry Mr. Chesley N. Llevins Stuart N. tienry & Associates Lloyd Gosselink. Ryan & Towler. P.C.

2103 Rio Crande P. O. Box 1725 Austin. Texas 78705 Austin. Texas 78767 Mr.-1tobert E. Horse. III Mr. John W, Karnes Cotr,. s Y sorney taker & Sotts Karnes Cou t *,ourthouse 3001 Shell Plaza Karnes City. Texas 78118 Houston. Texas 77002 Re Proposed Amandment of Radioactive Material License #9-1634 Centlemen:

l Enclosed please find a copy of my ORDER in the above styled matter 1

l delineating issues, establishing discovery limitations, and setting a time and place for reconvening the hearing.

Sincerely.

N y

l R. V. Smith Hearing Examiner avs/b 77 N

CC: Ken Owen & Associates 1103 Neeces Street

(

Austin. Texas 78701-2169 CERT 1 TIED MAIL NO. 950-936 RETURN RECEIPT REQUESTED

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BEFORE THE TEXAS DEPARTMENT OF HEALTH SUREAU OF RADIATION CONTROL i

l IN RE PROPOSED TRANSFER APPLICATION OF CONQUISTA ANENDMENT TO LICENSE PROJECT CORPORATION NO. 9-1634 ORDER d

on this day came on to be considered Protestants' Motion to Dismiss, Motion to Consolidate, and Motion to Define j

Issues, Rhone-Poulenc, Inc.'s Motion and Brief to Delineate Issues, Motion to Delineate Issues filed by Conquista Project Corporation, Motion to Limit Issues filed by the Division of Licensing, Registration and Standards and Protestants' Motion i

for a Second Continuance and the Hearings Examiner is of the opinion that Protestants' Motion for a second continuance and Conquista Project Corporation's Motion to Delineate Is-sues should be granted and that the other aforessid motions should accordingly be denied.

It is, therefore, ORDERED that Protestants' Motion for a Second Con-tinuance,is hereby granted and the contested case hearing in this matter is hereby reset to resume on Tuesday, April 7, 1987 at 9:00 A.M. at the Falls Citt Community Hall, Falls City, Texas or, if such hearing room be unavailable, at such other location as may be established by the Hearings Examiner beforehand it is further

. _.. - - _ ~ _. _.-. _ _.. _.... _. _ _. _. _ -. -. _...._.,..,__ _,

j ORDERED that the Motion to Delineate Issues filed by Conquista Project Corporation is granted and that the issues to be adjudicated at the aforesaid hearing are the following:

r 1.

Whether conquista Project Corporation (Con-quista) is qualified by reason of training and experi-ence to carry out the temas of License No. 9-1634 in a manner consistent with requir.ments of the current Licensee; 2.

Whether conquista's equipment, facility and procedures are comparable to those of current Licensee 3.

Whether conquista is proposing any change in operations which would be inimical to public health and safety or adversely impact the environments and 4.

Whether conquista has demonstrated the re-quired financial capability.

Discovery, direct evidence and cross-examination shall be Itaited to the foregoing issues.

All other pending motions are denied.

SIGNED this the z32]EI day of pee.mser, inns x.D.

I I

if2 ff -,LN j-R. V. SMITH Hearings Examiner 001REMWA/118E01

1 9

Bureau of Radiation Control Comments on the Draft Interim Report of the Senate Subcommittee on Health Services to the 71st Texas Legislative Session on REGULATION OF URANIUM TAILINGS AND VASTE VITH SIMILAR RADIOLOGICAL CHARACTERISTICS Findinus and Recommendations REGULATORY ISSUES Recommendation #1: Title to Closed Uranium Mill Tallinus' Sites (oo. 26 27).

.1Dd Recoinmendation #2: Dedication of Interest from the Radiation and Percetual Care Fund fo. 27) l The Texas Board of Health has approved language to amend Article 4590f, V.T.C.S. (Texas Radiation Control Act, TRCA) to clarify and correct these two items.

I i

Recommendationji Abuse of Timely Reneval too. 27-28)

The premise that TDH has allowed uranium mill tailings sites to operate underexpiredlicenseswithoutreviewiscompletelyincorrect.lTheAgency's interpretation and its implementation of the Administrative Procedures and Texas Register Act (APTRA) See IB(b), loosely termed " timely renewal" rule, has been fully within the spirit and intent of this rule. Thelfollowing facts corroborate this:

1.

All licensees have submitted license reneval applications to the Agency prior to the license expiration date, as required by Agency rules (TRCR 43.33). The applications vere duly reviewed and accepted if found to be administratively complete. The actual technical review for renewal was deferred in some instances due to (a) existing work priorities and (b) insufficiency of staff resources. (The expanded Bureau of Radiation i

Control was created following the passage in 1981 of amendments to the f

Texas Radiation Control Act (TRCA) in response to the federal Uranium Mill Tailings Radiation Control Act of 1978 (UNTRCA).) The Agency has followed a prudent policy of undertaking technical review of m.v.

applications before renewal applications. However, technical review and surveillance of all ongoing activities covered by the licenses have continued without interruption.

2.

During the period pending detailed review of renewal applications, moreover, at all times, a license is in full effect. At no time has the Agency allowed any licensee to operate without a license or without the scrutiny required for compliance with conditions and restrictions of the license and Agency regulations. Requests for license amendments are processed through detailed technical review and opportunity for public input without compromising any requirements of the regulations.

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Technical reviev of new as veil as renoval applications consists primarily of preparation and publication of an environmental assessment

-(EA), as required by statute 'TRCA Sec llA). The EA is a comprehensive evaluation of the radiologica; and nonradiological environmental impacts on public health and the environment resulting from the proposed or i

actual activity. EA preparation is a highly technical and time-consuming activity. Since the formation of the Bureau in 1981, the environmental assessment staff have completed a total of 18 BA's, of which 15 have been published and 3 completed and placed in the files but not published. In addition, 3 EA's were partially drafted but discontinued for various reasons, such as withdrawal of the application by the applicant, and 3 EA's are currently under preparation. Staff j

effort required for EA preparation on a project has been gradually streamlined since the Bureau vas formed in 1981 so that a smaller staff is able to accomplish the same activity in a relatively shorter amount of time.

Thus, the subcommittee report's recommendation to set a time limit for processing license renovals vould accomplish little more than algoal of administrative punctuality, which is desirable and which might be achieved The Agency must be given adequate staff b; augmenting staff resources.

resourcesforcompletionofrenevalswithinthespecifiedtime.]The staffing level should be adequate to accommodate fluctuations in work loads involving EA preparation and nora.al technical support activities, changes in priorities, and interruptions and unexpected demands on time for other activities, such as the ef fort devoted to the Texas superconducting super l

collider siting.

The subcommittee report's recommendation to prohibit license amendments while reneval applications are pending would stop or hinder any necessary changes to the licer.se. Such amendments often involve operational modifications requiring prompt Agency review and action to allow projects to operate in a changing economic climate while ensuring protection of public l

health and safety.

Recommendation #4: Fundine for Rerulatory Activity (en. 28-29) i I

The Texas Board of Health has adopted rules based on existing staff level to l

increase fees to 100 percent of funding for activities delineated in Section 17 of the TRCA (Article 4590f). The current system of funding the L

program from reappropriated fee funds as opposed to General Revenue funds does not provide for staff to address emerging issues such as NORM wastes j

(through studies and rule development), or incidents that introduce radioactivity into consumer products or that cause radiation exposure to members of the general public or the environment from non licensed activities, since the fees may be only charged to licensees and registrants.

AdontionofStricterGroundVaterProtectiolnStand Recommendation #5:

(o, 29)

I The three uranium mill tailings impoundments currently holding licenses frem the TDH vere constructed according to the engineering standards of the day

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.at a time when the present detailed standards had not been promulgated.

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e is true that some of those standards, particularly those regarding construction of liners, vere less stringent than municipal landfill standards currently in oflect. On the other hand, TDH policy regarding construction of top covers during closure of tailings impoundments has always been more stringent than municipal landfill standards. Tallings i

impoundments are constructed both to attenuate radon emissions and to prevent future seepage problems or contaminant migration by limiting moisture infiltration. Moreover, amendmenta to Part 43 of the TRCR, nov under consideration, lapose not only stricter monitoring requirements but, in effect, require the use of synthetic liners for new tailings disposal impoundments.

Proposed amendments to Part 43 of the TRCR incorporate groundvater protection provisions that were recently adopted by U.S. Nuclear Regulatory Commission (NRC) rules. The TDH rules are fully compatible ',ith NRC's 10 CFR Part 40. These rules implement the groundwater protecuon standards of the U.S. Environmental Protection Agency (gPA) pertainins; to uranium mill tailings contained in 40 CFR Part 192, to which both the NRC and the Agreement States.R24.1. conform. Division 1 of NRC r' des pertaining to compatibility requirerents for the state agreement program requires that certain parts of federsi rules, including occupational and radionuclide-release limits, must be saintained identical to the federal rules, and stricter standards than those of NRC are, ngl allowed.

I The NRC does not have a Part N rule as implied in the subcommittee report. Rules concerning disposal of hasardous vastes are covered by the federal Resource Conservation and Recovery Act (RCRA). Although uranium mill tallings are specifically excluded from the RCRA, it is important to note that the TDH rules now under consideration do incorporate,the RCRA groundvater protection technical standards.

Recommendation #6: Amendments to Permits (00. 29 30)

This recommendation of the subcommittee report arises from the need for considering public input and criticism before the issuance of license amendments. Recognising this need, the Texas Board of Health in 1987 directed the Bureau to amend the TRCR rules to require serving advance notice of any proposed major amendment (in the Texas Register and by mail to vicinity property owners and to local elected authorities). This requirement has been incorporated into the regulations and adopted (TRCR Part 13). The subcommittee report's recommendation to set a time limit in-which no amendments vould be allowed is impractical, especially when amendments are necessitated by unforeseen changes in operations or personnel. Also, such a restriction vould limit this Agency's effectiveness in the protection of public health and safety and the environment by preventing it from imposing necessary additional controls on a licensee from time to time.

Recommendation #71 Authority to Rerulate Cheeleal Comoonents of Uranium Mill Ta111ars and Other Vester with Similar Radiological Characteristles foo. 30-31).

i The Texas Board of Health has approved new statutory language to permit the Agency to set groundwater protection standards as adopted by the federal l

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l government under the Atomic Energy Act of 1954 as amended. This language.

11 enacted into lav, vill clarify the Agency's authority for adopting groundvater standards, Compatibility requirements from the NRC require that TDH develop rules that i

vould regulate chemical constituents of uranium mill tailings. In meetings with the TVC, the TVC staff has indicated that they vould prefer TDH to l

enforce the groundwater standards in their entirety. Staff capability exists within the TDH for this purpose, but needs to be augmented in order to enforce the groundvater protection requitements of TRCR Part 43 rules when they go into effect. (Chemical samples from the TVC are currently being analyzed by the TDH laboratory for RCRA constituents under a separate arrangement.) As stated before, uranium mill tailings are specifically exempted from the RCRA rules, which the TVC is charged to, administer.

Recommendation #0: An Acoroved closure Plan for all Uranium Mininn/

Materials Handlina Permit Renewals foo. 31-32)

A closure plan describes the activities following the termination of uranium production operations. Each licensee is required to develop a preliminary closure plan in developing cost estimates for closure, which are i

submitted to the Agency. These cost estimates, along with an added contingency, form the basis for the financial security for closure posted with the Agency. The preliminary closure plan undergoes review during the annual security reviev, and represents a general description of the likely requirements for closure.

j s

All uranium mill tailings licensees submitted closure cost estimates following the enactment of the 1981 amendments to the TRCA. Thus, preliminary closure plans were received from all licensees at about the same time. Development of a detailed closure plan for uranium tailings sites is impractical until a thorough assessment of site conditions and any cleanup requirements is possible. Such an assessment is ordinarily possible only when a licensee has reached a decision to terminate project operations, which may be up to two years before the actual cessation of uranium production.

j Recommendation #9: Financial Security Reauirement for Uranius Mine and Mill Tallinas Permits (oo. 32-33)

The subcommittee report recommends directing the TDH to compile nationvide data on actual uranium mill tailings site cleanup costs (audited and accountable) to ascertain the financial security needs for Texas uranium mill tallings sites. Such a report would likely have very limited data and would have limited usefulness, because only two out of 24 sites'have been completely closed out under the UMTRA Title I federal cleanup program (with six sites being at various stages of closure), and no Title II sites have been completely closed. The Title I project cleanup costs for sites already closed and estimates for sites yet to be closed are available in the public domain, and can be procured for the purpose of the recommended study.

However, no Title II sites, i.e., sites which produced uranium for non-defense purposes, have been completely closed out, and actual closeout costs are unlikely to become readily available in the public domain..All three TDH-licensed sites in Texas are Title II sites l thus, a cost comparison with 4

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other similar sites in the United States vould not be possible at the present time. Also, construction at Title I sites varies videly from one site to another, and there vould be no common basis for comparison.

The Agency requires that each licensee provide security cost estimates to cover all closure activities of the licensed facility. A licensee is required to close out the facility in compliance with regulatory standards at the licensee's own expense. Security retention is required by the TRCA to meet unusual situations when a licensee is unable to discharge all closure obligations required by the license. The Agency requires that closure cost estimates be based on current site specific costs that vould be incurred if an independent contractor vere assigned to perform closure. The l

cost includes a contingency, and is reviewed annually to make revisions due j

to changes in project activities and to adjust for inflat, ion.,

The subcommittee report suggests that the financial security for closure of the Conoco Conquista and Chevron Panna Maria projects may oe less than tht.t experienced in actual closure of similar facilities, such as the gxxon Ray l

As stated above, the security is based on an estimate of the Point site.

clnsure cost which could differ from, and hopefully exceed, the actual cost i

of closure. The example of Exxon Ray Point, s.tted in the report, should dispel concerns about the Agency's security c.ost determination'and requirement procedure. In the Exxon case, the socir!'y posted with the Agency was $3 0 million, while the actual cost of achieving substantial closure vas about $2.2 million, as stated in the subcommittee report.

(The actual closure of the Ray Point site is not complete, and the Agency still holds security from the company for a smallet amount.)

l l

As correctly alluded to in the subcommittee report, the cost of closure of the Title I Susquehanna site near Falls City is not comparable'to the costs of closure of the three Title II Texas sites.

l The subcommittee report's recommendation to evaluate the form of financial security in the context of the current instability of Texas financial institutions is valid. Such a study is needed and should be authorised and funded by the legislature.

Recommendation #10 Arenev Monitorina of Potential Hazards to the Environment foo. 33 341 This recommendation is based on inaccurate information. TheBhreauof Radiation Control (BRC) has a comprehensive independent environmental monitos;ing program in place at sites throughout the State. The details of this program were provided to the subcommittee in writing at their September 29, 1988 meeting. This BRC report shoved that there!are currently 27 facilities in the State where routine, independent environmental

)

monitoring is conducted on a quarterly basis. This monitoring includes measuring ambient gamma ray levels, and sampling of soil, water, vegetation, and air at and around the facilities to detect any releases of radioactive materials. In addition, independent samples are taken or surveys made by BRC inspectors at over 2,400 licensed (mostly non uranium) sites during routine inspections and during incident or complaint investigations..

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The sampling program described above has been conducted since the early 1960's. Attachment I shovs the current routine quarterly sampling program.

In fiscal year 1988, the BRC collected and analysed over 1,700 samples. The details of the BRC environmental monitoring program were described in a letter dated December 29, 1968, to Commissioner Jim Hightower of the Texas Department of Agriculture. Copies of this detailed staff analysis of the Texas Department of Agriculture report titled " Agriculture and the Uranium Industry" were also provided to each member of the subcommittee.

In addition of the foregoing, the TDH Division of Vater Hygiene monitors the quality of all public water systers for a number of parameters including radium-226. There are no public water supply systems in Karnes County that exceed the radiological limits for drinking water. In addition to the TDH monitoring, the Railroad Commission of Texas and the Texas Vater Commission have their own monitoring systems around uranium mining and milling 2

facilities.

The BRC does require each licensee to perform their own monitoring in addition to that described above so that the licensee can detect and cc rect any releases in a timely manner.

i Therefore, the statement that the industry is allowed to police itself is inaccurate and misleading.

Recommendation #11: Soecificity of Testins (c. 34)

This recommendation is based on inaccurate information. The TDH laboratory sample analysis results are very accurate and do allow determination of compliance with regulatory limits. The limits are normally in units of a picoeurie (pC1), which is a millionth of a millionth of the basic unit of j

one Curie. The picocurie is thus a trillionth of a Curic. To measure this infinitesimally small quantity requires very sensitive laboratory chemical procedures, processes, and equipment. The example stated in the subcommittee report (p. 34) that a sample result measured "less than 54 pC1/l" is not accurate. This was only a preliminary gross gamma counting test result. The final radiochemical laboratory analysis on the same sample showed that the sample contained unly 2.6 pC1/1 of radium-226, which is an order of magnitude under the regulatory limit of 30 pCi/1. These laboratory results and a detailed explanation of the laboratory counting procedures were provided to the subcommittee staff and to the Texas Vater commission in l

August 1988. The final results were sent to Senator Truan on August 19,

~

1988 (see. Attachment 2).

Finally, the TDH Bureau of Laboratories is an EPA participating laboratory.

l The results that were reported by the TDH 1aboratory agree with laboratory results provided to the Texas Department of Agriculture by a commercial laboratory for samples taken in the same areas.

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l Recommendation #12t Promotien of the Uranium Industry (oo. 34-35)

TDH personnel heve not promoted the uranium industry. They do try to explain hov the regulatory program that is in place is consistent with health and safety of the public and protection of the environment.

VITAL STUDIES Recommendation #13 A Study of Health Risks of Radiation Exposure (p. 36)

No commerit.

Recommendation #14: Articulture and Economic Imonet Study too. 36 37)

Ve add to the subcommittee's recommendation that the suggested study should have participation by all State agencies that have jurisdiction and interest in the subject area, such as the TDH Food and Drug Division, Milk and Dairy Division, and the Heat inspection Program. Also the scope of the study should be expanded to include the impact of use of phosphatic fertilisers, which contain naturally occurring radionuclides, such as radium 226.

Recommendation #15: Ryeroduct Definition (oo. 37-39)

The subcommittee report recommends that the TDH should be directed to prepare a safety and environmental assessment of the radioactive vastes that are not mill tallings but have been or are contemplated to be disposed of in uranium mill tailings impoundments, in order to determine what-vastes are l

appropriate for such disposal.

l The present TRCA definition of byproduct material was developed in 1981 by a consensus of the Sierra Club, represented by Mr. Rick Loverre of the Henry j

and Loverre lav firal the TDH staff; the uranium industry; and concerned citizens, as well as the legislative sponsors. The definition was written j

specifically to allow the Rhone Poulenc rare-earth tailings and other naturally occurring radioactive material vastes to be disposed of in a j

uranium mill tailings pond. It was written with full understanding by all parties that it departed from the NRC definition. The principal persons j

who have argued against this definition at the current subcommittee

(

1 hearings are Mr. Loverre himself, representing the Texas Department of k

Agriculture, and Mr. Bill Bunch, who works for the same lav firm that supported this definition in the 1981 legislation.

)

The difference between the Texas and the federal definition of byproduct i

material vastes needs to be resolved. However, the report's concern that the federal government may refuse to accept title to the closed tailings sites is unrealistic. Texas regulations (TRCR 43.95) require that the State

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acquire and maintain permanent title to the closed uranium mill tallings The possibility of transfer to the federal government exists only at sites.

the option of the state (i.e., its legislature or the governor).

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The excerpt quoted from G. Vayne Ke'rr's letter of 3/27/87 is taken ad'asedly. Staff is currently engaged-in the preparation of an EA related to the closure of the Conoco Conquista site. As a part of that assessment, I

the environmental and public health and safety impacts of disposal of Rhone-Poulenc rare earth process vastes are already being analyzed, and vill be documented in the EA.

It should also be noted that TDH sampling of Rhone-Poulene vaste streams at their facility in Freeport, of actual shipments from the facility, and of Conquista tailings pond fluids has not shown any pesticides or toxic heavy metals by the EP Toxicity Test specified by the

. EPA under the RCRA.

Recommendation #1Q.jiORM Study foo. 39 40)

The TDH is current. e the process of drafting rules for NORM wastes, and has a staff member serving as representative on the Conference of Radiation Control Program Directors' (CRCPD) committee in charge of developing suggested state regulations in this area.

Rules for discharge limits, including the radionuclides comprising NORM, currently exist in the TRCR Part 21. The general licensing requirements and exemptions for all radioactive material, including NORM, are found in TRCR Part 41.

The Texas Board of Health has approved language to amend the T xas Radiation ControlAct(4590f,V.T.C.S.)toclarifytheAgency'sauthorityltoregulate NORM vaste disposal.

Recommendation #17: Department of Enerry (DOE) Plans and Delav's in Cleanuo of Susauehanna (op. 40-41)

The subcommittee report complains that the' DOE has delayed the cleanup of the Susquehanna Falls City site, Karnes County, for over ten years. This delay was not deliberately caused by the DOE, but rather reflects the normal pace of federally-funded activity which requires congressional appropriations.

I On November 8, 1979, the Secretary of Energy assigned a " medium" priority to the Susquehanna site based on its potential health hazard as compared to the other 23 federally funded Title I (Uranium Hill Tailings Remedial Action Program, or UMTRA) sites. Of a total of 24 sites classified as Title I, priorities were assigned as follows: "high" to nine sites, " medium" to six sites, and " low" to the remaining nine sites. Standards for closure for the Title I sites were established by the EPA in 1983. Preparations for a cooperative agreement between the DOE and the State of Texas started in 1984, and the agreement was finalized April 30, 1987. A DOE contractor is currently finalising the Susquehanna Falls City project plan, and the State is in the process of purchasing the affected properties. The actual remedial action field work is scheduled to begin in May 1990. I The subcommittee report alleges that the DOE does not plan to restore the l

groundwater at the Susquehanna Falls City site. Groundwater cleanup is.D.9t.

i l-a requirement under the UMTRA program. The construction of an engineered mound over the collected tailings, however, vill greatly minimise the

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leachlng of' contaminants into aquifers. Preliminary EPA standards for groundwater-cleanup, announced by the EPA in 1985, are projected to be finalised by April 1989. These standards specify contaminant _ levels belov-the current background levels in the area. The EPA standards require the DOE not to exceed certain minimum concentration levels of contaminants at the edge of the tallings pile. The DOE has estimated that extensive groundwater cleanup to meet EPA standards vould require about $300 million, of which 10% vould have to be funded by the State under the current cooperative agreement.

The Bureau of Economic Geology (BEG), of The University of Texas, has indicated that the actual extent of groundvater contamination at the Susquehanna Falls City site may be less than that estimated by DOE, and that the cost for cleanup may also be less. The BEG has prepared a research proposal for a $490,000 (1988 dollars) two year study to' assess the true extent of groundwater contamination at the site and to develop recommendations for remediation. Funding for the proposed BEG study is not available.

Recommendation #18: Public Access to Onen Records (oo. 42-43)

The Bureau of Radiation Control's open records procedures have'all been developed in accordance with the Texas Open Records Act.

j Recommendation #19: Transfer o,f Uranium Mining Perulation to the Vater Commission foo. 43-44).

}

This section is very confusing. If the authority to issue radioactive material licenses and to perform inspections and environmenta1' assessments for uranium facilities were transferred to the TVC, the State's agreement with>the NRC vould need to be reevaluated by tha NRC. The pertinent regulations to be developed by the TVC and its staff would then come under review by the NRC. By requiring the TDil to be " consulted" by the TVC on radioactive m _

• a of mill tailings but havjng the TVC issue the licenses, th mcur:1. tee report in ef fect recommends parallel staf fing and shared respelssb;11ty. If such parallel review is indeed decided by the legislaturt appre,riate funding should be provided to both agencies to perform tb> rieteo fur;;

n.

The allega.N1 adC,cv3et (b) and (c) on pp. 43 and 44 are wrong. The track rece-

,t *Mr, Sk; in the performance of its mandated mission is good, and no BRC styli raaber bn 4 promoted the industry (see also comments under RecommendaG M fi2;>

i Recommendations #20. #21. and #22 (no. 44-47)

No comments.

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ADDITIONAL SUGGESTIONS Recommendation: "The 1erislature should mandate that radioactive vastes remain the permanent oronerty of the oroducer." (c. 50)

Federal lav and regulations require that the.9 tate take title to the radioactive vastes in uranium mill tailings disposa1' sites and low-level radioactive vaste disposal sites. The Texas statute, Article 4590f, V.T.C.S. (TRCA) tracks the federal lav.

The system destgrJC Ny the Congress and by State legislation to require a long term cara e/a e4Jrarnan e fund paid by the industry to the state eliminates ths 9,eed f6r long court battles to determine each disposer's liability at agr s'lke that may need corrective action.

d The current system for regulating uraniac n111 inilings and lov level radioactive vaste requires that site operators deposit security with the State during operation of the site to provide for the required cleanup activity if the licensee / operator either fails to perform the cleanup or becomes insolvent (see also. comment on Recommendation #9).

Recommendation: " Legislature should encourare the reduction of the amount of radioactive vaste oroduced." (o.50) j I

The TDH has advocated vaste reduction through publication in March 1985 of e.

joint study with the Texas Low level Radioactive Vaste Disposal' Authority:

" Institutional Low-level Radioactive Vaste in Texas Current Vaste i

l Management Practices and Recommendations."

Recommendation: "The Legislature should direct the Texas Deoartment of jealth to conduct a comorehensive survey of sources of cublic exoosure to radiation."

(oo. 50-51)

The.BRC has. conducted surveys throughout the State at over 2,400 licensed field use sites, and at 27 major facilities, including Pantex and the Mobil l

phosphogypsum tailings site near Housten.

Aerial surveys using the United States' most advanced technology have been performed at Pantext the South Texas Project; the Comanche Peak Reactor near Glen Rose; a 200-square mile area south of Houston near Friendsvood, Texas, associated with clandestine disposal by Hastings Radiochemical Company; seven hazardous chemical vaste sites near Houston and the gl Paso, Texas, area after the Juares cobalt-60 steel incident. In addition, the BRC regional inspectors survey State and county roadways en route to their inspection locations, using highly sensitive scintillation detectors with audible radiation rate indicators.

i The BRC maintains a list and file on all known sites in Texas where L

radioactive vastes or tailings are buried or emplaced, i

Detailed aerial surveys of the South Texas mining areas were conducted in the late 1950's, and detailed radiation iso-dose aerial maps are available from the U.S. Geological Survey.

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If the Legislature so desires and provides' additional equipment and inspectors, additional areas could be surveyed from the ground. Aerial surveys using the DOE helicopters could be done, but the cost vould be prohlbitive..

Funding by the Legislature to do a statistically valid study of radon in homes vould most likely be the best method to locate areas where members of t

I the general public may be receiving relatively high unintentional radiation exposures..

r Recommendationi- "The Legislature should orovide an indeoendent staff for the Radiation Advisory Board."

(p. 51) o The Radiation Advisory Board is statutorily constituted to have 18 members.

Sixteen of those members represent-specific disciplines of expertise in radiation effects and regulation. Two members of the Board represent the general public and by lav c a not be involved in the health care field or in any business involving radiation (TRCA Section 5). The Board does not receive any reimbursement except transportation expenses and actual expenses for meals and lodging. Since there is technical expertise in the membership i-and it is anything but a rubber stamp for Bureau staff positions on radiation regulation, it would not seem to be cost-effective to fund a full-l time staff for sn advisory board that is required to meet a minimum of four l

times a year.

The statement that the law and rules were clear on notifying nearby residents and affected persons of significant amendments to operating r'-

permits is not accurate.'.The TRCA requires notice in the Texas Register only for new licenses and renewals. The rules in place have reflected the statutory language. Although not required by lav or rule, the Agency has notified adjacent landowners by letter of_all new licenses and i

renewals. In response to concerns expressed by Senator Truan, the Board of

-Health adopted in 1987 rules requiring that notice of major amendments be provided to adjacent landowners and elected officials of local and State The staf f did government in whose district a licensed facility is located.

i not oppose stricter notification requirements before the Board of Health or the Radiation Advisory Board.

Recommendation: 'The terislature should reouire an annual rtoort from the Bureau of Radiation Control."

(n. 51) i Abnormal occurrences, surveillance' activities, license actions, regulatory L

action, and NRC program reviews could easily be reported to the Legislature if it so desires. Much of this information is already reported through Legislative Budget Office audits and work load measures. In addition, all license actions and escalated enforcement actions are published in the Texas Register.

The BRC publishes a quarterly summary of radiological incidents and complaints, which are used by staff and the Radiation Advisory Board to look at specific accidents and incidents as well as' trends in all categories of incidents. The Agency also publishes a semi annual report of activities of the Division of Licensing, Registration and Standards.

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The Texas ine' dent response teams from the BRC have received national and international recognition for their emergency response efforts that preve:.ted high exposures to Texans from the Juarea cobalt 60 steel incident an' in cen3 unction with a recent problem relating to polonium 210 static eliminators.

Pecommendatient "The Lerislature should reouire the Department of Health to orovide a continuinn undate on federal transport of hinh level vastes through the State."

(o, 51)

The subcommittee report incorrectly states that high-level vaste vill be transported:to the Vaste Isolation Pilot Project (VIPP) near Carlsbad, New Mexico. The VIPP site vill accept only transuranic, not high-level, vastes from federal-veapons facilities..The majority of these v'aste shipments have such lov levels of external radiation that they can be contact bandled by workers. The transport of radioactive vastes through Texas comes under the joint regulatory jurisdiction of the Texas Department of Health and Texas Department of Public Safety (DPS). The Governor has designated the TDH to be the Agency notified for large-quantity vaste shipments (10 CFR Part 71),

and the DPS is designated to be notified for spent nuclear fuel shipments (10 CFR Part 73). Both TDH and DPS routinely communicate on any highway routing of controlled radioactive shipments and coordinate on emergency response activities.

The BRC completed a final draft of the specific procedure for emergency response to transportation accidents and provided a copy of the draft to the subcommittee staff in November 1988.

General Informa(ton Sections and Aeoendices.

i These sections of the report contain some inaccuracies in the technical information presented. For example, the statement on page 7, and later on page 18, that uranium itself is not highly radioactive while its decay products are highly radioactive is misleading. The daughter products have a i.e., radioactivity per unit mass (Curles per f

higher specific activity.

However, the total concentration of these radioisotopes occurring gram).

l' naturally and as a result of uranium mining operations.is small, and is in the activity range of 1-100 pCi per gram of soil or tailings.,This amount of radioactivity is extremely small.

i Susauehanna - Susauehanna Vestern Cleanuo (no. 9 10)

Please see response to Recommendation (17 above. The subcommittee report's contention that the U.S. Congress included groundwater cleanup as a l

requirement under the UMTRA program is incorrect.

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Conaufsta - Conoco (oo. 10-11) l The Conquista project is not in violation of the Railroad Commission license l-(sic) as suggested in the subcommittee report. The conoco Conquista project is currently regulated under both a valid permit from the Railroad i

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v iL Commission of Texas and a license from the TDH. Conoco has never operated the site illegally as charged in the subcommittee report, and the quote from the Railroad Commission's December 1987 report (pp, 11) is vrong, The attempt by a small company to acquire the Conquista site license was abandoned when conoco withdrev their consent for the transfer. This action resulted from the usual procedures of public input and participation that are specified in TDH regulrtions. The subcommittee report appears to-fault the TDH for having followed its own procedures throug't. a public hearing.

_Panna Maria Proieet - Chevron (oo, 11-12)

The subcommittee report's contention that Chevron only recently (November 1988) applied for its license renewal is vrong. Chevron' applied for reaeval in November 1980, and all provisions of their license are and have alvas been in full effect. In accordance with staffing constraints and work priority (see comment on Recommendation d 3 above), renewal review of thi Panna Maria project was commenced in late 1986, a draft EA document was prepared for review in early 1987, the final EA vas published in Septembet 1987, and a notice of the proposed renewal action inviting public comment and request for public hearing was published in January 1988. iThe public hearing was convened in July 1988. The hearing process is still under way, and further sessions of this hearing are yet to be scheduled. ;Apparently, the subcommittee report compares the timing of the public hearings in 1988 with the time of Chevron's request for license renewal.

Pertaining to the cited portions from the TDH EA for the Panna, Maria project, the EA does point out that any contamination from the, tailings pond area could migrate and eventually be withdrawn by area wells. It also points out, however, that it vould likely be a very long time before contaminants could reach a potential withdrawal point (p. 137). Moreover, those contaminants vould be mainly higher TDS (total dissolved' solids),

sulfates and chlorides, and not radionuclides or toxic heavy metals, which would be effectively attenuated or removed along the flow path (pp. 136 137).

The EA concludes that, given the observed contaminant levels and assuming that the source is cut off with closure of'the tailings impoundment, one could say that the effects on the nearest vells, which are a few thousand feet away, vould in the judgment of the staff be measurable but not harmful (p. 137).

What are the Danners?

(no. 12-13)

The. subcommittee report's characterization of hazards of uranium mill tailings are accurate.

It was these a' knowledged hazards that led to the c

enactment of the federal Uranium Mill Tailings Radiation Control Act of 1978.

i The principal riska from uranium mill tailings are exposure to Radon-222 and possible contamination of groundwater from seepage. The National Academy of Science (NAS) (1986) recommends radon measurements around tailings ponds / piles both before and after closure. The TDH has. required such monitoring around mill sites. According to the NAS findings, only those people living in close proximity to an uncontrolled uranium mill tailings 13 l

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< pile (less-than 1 km or 0.63 mile away) may experience an increase lifetime radon lung cancer risk. When tailings are covered, however, the

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radon flux vill be greatly reduced, and so vill the downvind radon concentrations, thereby' correspondingly reducing the risk of lung cancer.

By limiting the flux from reclaimed tailings (by providing an engineered cover as part of site closure), most of the radon vill decay before it migrates through the cover, and the resulting charged daughter products vill attach themselves to soil particles in the cover. The cover vill thus virtually _ eliminate the release of radionuclides to the environment.

Scientific Basis for Risk Assessment

[ National Academy of Science, 1986.

and Management of Uranium Mill Tallings. Uranium Mill Tailings Study Panel, National Academy of Science, Washington D.C.]

Groundwater contamination from uranium mill tailing sites may be controlled TDH by ensuring that infiltration into reclaimed tailings is prevented.

staff advice to licensees pertaining to the geotechnical aspects of closure and its implementation procadures has gone beyond the letter and intent of the current regulations in the area of infiltration control.

l The subcommittee report expresses concern about the use of coal! fly ash as a filler in the construction of cinder blocks used in building construction.

Environmental reports on the risks from these materials are being reviewed i

by TDH staff and by the CRCPD in preparation for developing specific rules for these types of materials. The federal government has encourared_the use of fly ash in federally funded construction activities under RCRA, 40 CFR Part 249 (Federal Register, volume 48, No.20, pp. 4230 4248, dated 1/28/83),

and has determined that the minute increase in radiation resulting from the Also, the Federal l _-

added fly ash does not pose a significant health risk.

Highway Commission subsidizes the use of this material for road bed l

Radon release from fabricated cinder blocks does_not appear l

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to be a % ard when the fly ash is embedded in the fixed matrix [Stranden, Assessment of the Radiological Impact of Using Fly Ash in Cement."

E.Health Physics, Vol. 44, No. 2, pp. 145-153, February 1983).

- Memoranda of Understandine (oo.16)

Rerulatory Conflict The subcommittee report alleges that the memoranda of understanding (MOU's) between the TDH and TVC have been adopted by an informal, internal process' This that does not ensure adequate opportunity for outside input.

All MOU's with other state agencies regarding contention is wrong.

radiation materials adopted by the TDH were promulgated through the APTRA These rules were proposed, process and are included as part of TRCR rules. opened to public This process was actually used by the TDH before the the agencies involved.

For example, 1,egislature required in 1985 that MOU's be adopted as rules.

the MOU vith the TVC on in situ uranium mining, which was concluded in February 1983, has been assigned a specific Texas Administrative Code number (25 TAC 289.81).

To date, no regulatory actions have involved the MOU on radioactive mixed Since no vaste because it refers only to the disposal of the mixed vaste.

low-level vaste disposal site exists in the State at present, and since uranium mill tailing are excluded from the RCRA and the mixed vaste classification, there has been no opportunity for the State to: implement the 14

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- HOU. The MOU on mixed vaste was necessary in order for the TVC to receive.

L EPA approval for regulating hazardous vaste constituents of radioactive

. mixed vaste.

The TDH and TVC.are currently working on developing an MOU that vould address radioactive vastevaters such as those associated with NORM facilities.

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