ML20055C222
| ML20055C222 | |
| Person / Time | |
|---|---|
| Issue date: | 09/20/1988 |
| From: | Fonner R NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Lubenau J NRC OFFICE OF GOVERNMENTAL & PUBLIC AFFAIRS (GPA) |
| Shared Package | |
| ML20055C215 | List: |
| References | |
| FOIA-90-A-32, FOIA-TUYL90-36 NUDOCS 8810110085 | |
| Download: ML20055C222 (2) | |
Text
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September 20,1988 1
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MEMORANDUM FOR:
Joel Lebenau. Acting Assistant Director SLITP FROM Robert L. Fonner Deputy Assistant General Counsel Rulemaking and Fuel Cycle
SUBJECT:
AGREEMENT STATE AUTHORITY IN SETTING ALTERNATE CONCENTRATION LIMITS In Mr. Nussbaumer's memorandum of June 28,1988, he requested 0GC views on the legal authority for Agreement States to set alternate concentration limits (ACLs)forhazardousconstituentsinuraniummilltallings. The main concstn pnsed by the memorandum is the need for EPA concurrence in ACLs pursuant to 40CFR192.32(a)(2)(v).
Section 84c of the Atomic Energy Act of 1954 as amended. (the Act) givas the Commission the discation and flexibility, without any PA concurrence, te approve licensee submitted alternatives to stand 6rds and regulations promulgated by EPA or NRC. provided the alternatives are ' equivalent, te the extent practicable, or more stringent" than the EPA er NRC standards and
. regulations. Section 274c of the Act contains language, slmost identical to Section 84e which allows Agreemer_t Statet te adopt a ternatives to the Comissior.'s regulations so long as the Commission agrees that the i
alternethes provide a level of protection ' equivalent, to the extsnt practicable, or more stringent" than the Comission's regulations. There is t
no provision in Sectiore 274o for concurrence by EPA in any Agreement State action. State ACLs would certainly qualify as alternatives within the meaning of Section 2740. and are therefore statutorily authorized.
An Anreement State using the criteria in 40 CFR 264. Subpart F. or the com ssion's regulations to establish en ACL would not necessarily need Comission approval of each ACL because 40 CFR 264. Subpart F. by virtue of its incorporation into 10 CFR Part 40. Appendix A can be viewed as a
" generic
- NRC approval of ACLs meeting that regulation's criteria.
However.
4 an Agreement State offering alternative criteria not within the scope of the programatic approval in 40 CFR 264. Subpart F would require Consission approval. In sum, just as Section 84c gives the Connission discretion and flexibility as to ACLs offered by specific licensees for specific sites.
Section 2740 allows an Agreement State equivalent flexibility and discretion.
subject only to Comission approval with respect to changes in criteria. See.
i House Report No.97-884. 97th Cong. 2d Sess. pp 47-48.
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2-We are aware of the view expressed in the June 17, 1988 letter to Mr. Hule of the Colorado Department of He.lth from Rick Guimond, a member of the EPA Washington headquarters staff, comenting on the proposed amendments to Part U of the suggested $ tate Regulations. Mr. Guimond's letter recomends language for the $$Rs that ' ncludes the need for EPA Regional Administrator concurrence in ACLs beyond the site boundary or 600 meters.
In a State with an approved RCRA program the State agency could give the concurrence. Mr.
Guimond's letter does not, however, present a legal analysis of either relevant statutes or 40 CFR 192 to support his comment.
Your memorandum also suggests that Agreement States secure NRC concurrence in State established ACLs because of the need for NRC to find that all applicable requirements for reclamation be et prior to temination of a license (10CFR150.15a). Although it may prudent for an Agreement State to confer with the NRC on the appropriate' s of a specific ACL established under approved criteria, there is no legal requirement that it do so under either NRC regulations or Section 2740. NRC concurrence to satisfy 10 CFR 150.15a should not be necessary since, under Section 274o of the Act the Agreement State should already be regulating with equivalent, to the extent practicable, or more stringent groundwater protection rules. The applicable requirements would be those of the licensing State that by law parallel the rules of the NRC and EPA, or a set of alternatives that have been approved by the NRC. The principle of compatibility would suggest, however, that the Agreement State use the ACL methodology developed by the NRC staff in consultation with EPA, Robert L. Fonner Deputy As.sistant General Counsel i
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