ML20055D446
| ML20055D446 | |
| Person / Time | |
|---|---|
| Issue date: | 03/24/1987 |
| From: | Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | De La Garza E HOUSE OF REP. |
| Shared Package | |
| ML20055D365 | List:
|
| References | |
| FOIA-TUYL90-36 NUDOCS 9007060311 | |
| Download: ML20055D446 (50) | |
Text
. _
DISTRIBUTION SA R/F Dir R/F MAR 2 4157 EDO-2445 l
SECY 87-15 OCA Murray, OGC JKendig RMartin, RIV HThompson, SP The Honorable E (Kika) de la Garza GWKerr, SP United States House of Representatives RDoda, RIV Washington, D.C.
20515 u isie (f c)~w/inc & w/ enc 1)
Dear Congressman de la Garza:
In my letter to you of February 2,1987 I stated that we would be reviewing the specific actions taken or to be taken by the Texas Bureau of Radiation Control regarding the concerns expressed about the conoco-Conquista uranium mill tailings disposal site near Falls City.
An NRC staff member reviewed the matter with officials of the Texas Bureau of Radiation Control in Austin, Texas and he was infomed that Dr. Bernstein, Cornissioner of Health, will be responding to concerns raised in your letter and attachments.
We are providing you a copy of our correspondence with Stuart M. Henry, Esq., Attorney et law in Austin Texas, who raised certain concerns about i
Texas repelation of the Conoco site. As a result of our review of the Texas regulation of the conoco mill tallings site, we made two recommendations to Dr. Bernstein. We recernended that the Texas Bureau of Radiation Control should: (1) prepa m a safety and environmental assessment of the tailing pond as a basis for deciding whether or not the current end projected licensed activities at the conoco site should be permittet' and, if so, under what conditions or restrictions, and that this assessment should be initiated in the near futun and not be delayed until the matter of license rcnwal is taken up andt (2) the licensee should have an approved reclamation and stab 111 ration plan and surety prior to transfer of license to a new owner. A copy of our letter to Dr. Bernstein is enclosed.
We believe if Texas adopts these reconnendations, the concerns expressed in your letter would be addressed and there would be an improved basis for Texas to make future licensing decisions for the conoco-Conquista site.
If further infomation is required, we will be pleased to respond.
$1ncenly.
Orisinal signed by URFO*
RIV*
9007060311 900515 Victor Stello..
RDSmith RMartin PDR F01A Victor $tello, Jr.
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JANUARY, 1989 1
SUBCOMMITTEE ON llEALTH SERVICES SENATOR CARLOS F. TRUAN, CilAIRMAN i
DRAFT OF INTERIM REPORT TO T!!E 71ST LEGISLATIVE SESSION
'.I ON i
l.
REGULATION OF URANIUM MILL TAILINGS AND WASTE WITil SIMILAR RADIOLOGICAL Cl!ARACTERISTICS fl T
Committee Members:
Senator John Whitmire, Vice Chairman
// '
1/# ', '
Senator Chet Edwards
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Senator !!ector Uribe Senator Craig Washington Senator Frank Tejeda
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I i
DRAFT 9
EXECUTIVE
SUMMARY
This study was prompted by the considerable uncertainty over the adequacy of current regulation of radioactive wastes identified during the 70th Session of the Legislature.
l Questions had been raised over the state's potential financial liability for disposal sites, and the risks to public health and the environment posed by inadeouate disposal regulation.
Consequently, Lieutenant Governor l
William P.
Hobby commissioned the Subcommittee on Health Services to conduct an interim study on the regulation of uranium mill tallings and waste with similar radiological characteristics.
The Subcommittee held three public hearings during 1988 to receive testimony from the public.
industry, and the agencies with regulatory responsibilities for radioactive materials.
The Subcommittee's findings fall into three broad areos.
The Subcommittee found serious deficiencies in the regulation of radioactive wastes.
The Permanent School Fund is threatened by significant liabilitics accruino to closed uranium mill tallings sites.
The Radiation and Perpetual Care Fund is inadequate to its purpose of isolating dangerous materials in perpetuity.
Serious inadequacies exist in the rules and regulatory practice governing uranium mill tailings.
Questionable breaches of acceptable regulatory practice have occurred.
jeopardiging the state's authority to continue to regulate radioactive materials, the public health and safety, the safety of the environment and the faith of.
our citizens in their government, Failure to correct several of the problems promises to cost the state millions of dollars for liability or corrective action.
Part of the regulatory problems can be justly attributed to under funding.
There is a serious lack of information on the effects of uranium mining and related activities on human health, agriculture, and other economic land use.
An entire class of radioactive material remains unregulated and unstudied despite its widespread use in construction and dwellings throughout the state.
The Subcommittee recommends three studies to address general health risks of long term exposure to low levels of radiation, the effect of mill tallings disposal on agricultural land, and the regulation of technologically enhanced radioactive materials.
The Subcommittee found that several general reforms are needed to restore the credibility of the state's regulatory process, and to reinforce citi:en involvement in the process.
I
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QRAFT
SUMMARY
OF FINDINGS AND RECOMMENDAllONS REGULATORY ISSUES The Permanent School Fund is threatened with significant liabilities unless the Legislature acts promptly to vest title to closed uranium mill tallings sites in some other agency.
The Leolslature should stloulate that title to closed uranium mill tallines sites shDJl rev.gt1 to the Tewas Radiation Control Acency.
i i
The fund for long term maintenance of closed mt!1 tailings sites is inadequate to provide monitoring.
maintenance and remediation in perpetuity unless the interest earned on the fund is dedicated to the fund.
T he L eo i g_1_ a t u r e _ghg gid direct that interest eal ned b_v the Radiation and Perpetual Care Fund be plate _Q in the Fund and made available to finance the l o no _,J e r m care and maintenance of c l o s e,d__,t a_i_1.,i ngi s i t31 t
No major, active mill tailings site has undergone l
permit review since passage of the Texas Radiation l
Control Act in 1981.
l l
The Lecislature should reovire acencies to process l
permit renewals in a timelv manner. and shoulq
, forbid the_oractices of continuino evoiced_ permits indefinitely and of allowino sionificant amendments to eweired permits, The Department of Health's Bureau of Radiation Control i
is seriously underfunded and under staffed.
Staff reductions have reduced the bureau's ability to carry out vital regulatory activities and would hinder the-
' bureau's ability to respond to a major nu e,l e a r accident.
The Leolslature should authorire the Bureau of Radiation _ Control to assess fees at a full cost-recovery r a t e_.
k
4 1
'e.
4 DitAF T i
e The design and construction of uranium mill tallings impoundments would not satisfy the requirements for municipal landfills for household refuse.
The State Board of Health should adopt substantially stricter reovirements_for the construction of uranium mill tallinos imooundments and for aroundwater orotection than the Nu(ley Reculatory Commission's Part N rules strenotheninq oroundwater orotection standardi.
The permit process is abused by frecuent and substantial amendments soon after permits are issued.
The legislature should orchibit substantial amendments to permits within two vears of agprovg1 of new or renewed permits.
Approved plans for closing mill tailings sites are not required before permits are issued or before the financial security requirements are determined.
The _ l. coj sla t ur e aattpjti d r ggp i r e that a closure plan be acorcued_ing_ adopted _orier to any renewaj_of_a uranium minino or mj l l tallings permit and that the cjosure olan be Dart of the permit.
The amount of financial security required of permit holders varies widely, and is not prudent in light of the costs experienced in actual closures.
The Lecislature should direct the fewas Department of Health to report on the audited _ accountably t
costs of mill tallinos cleanuos. nationwide, to ascertain the amount of financial securitv..that should be reouired of Ilcense holders and to assess the adecuacy of current financial sgcurit t
,reautrements.
The report should also evaluate the form of security reautred in licht of the current instability of Texas' financial institutions.
License holders are allowed to monitor their own compliance with permit conditions.
The Lealslature should terminate the existing practice of allowino reculated industries to conduct their own tests and report results tg the permittino acency.
The leolslature should direct acencies to assess a reasonable fee, adeouate fund the necessary tests or to contract with indeoendent testino laboratories.
P 3
r 1
1 I
I
.o, DRAFT Test results produced by agencies are frecuently inadequate for making regulatorv decisions.
The Lecislature should recuire all testino by state acencies to be conducted so as to oroduce results with specificity apecuate to make Judoements in contested cases.
Employees of the Department of Health have engaged in the active advocacy and promotion of the uranium mining and radioactive disposal industry.
The_Leolslature should forbid employees of the Department of Health and the Texas Radiation Control Acency from enoaoina, in any form. In the Dromotion or justification of the disposal of m i Li.
tallinos, naturallv occurrino radioactive materials, or related radioactive material.
' VITAL STUDIES a-----------------------...----
There has been no study of the health risks of public exposure to low levels of radiation from uranium mining and other activities that prodate radiation in Texas.
The Lecislature should appropriate funds to the state's medical _ schools to conduct a,_c o mp r,e h e n,s } v e jLtjad y of the health risks of radiati_gn expoppge due to industrial activities such an uranium min!no.
There has been no study of the effects of uranium mining on agricultural production and other economic land.use.
The Lecislature should direct the Department of Aoriculture to conduct a comprehensive study of the impact of uranium minino on food production and food product safety in Texas.
Texas' definition of byproduct material differs significantly from the federal definition, which could
' result in the federal government refusing title and responsibility for closed mill tailings sites on the grounds that inappropriate materials were disposed in the sites.
The Lecislature should recuire the Department of Health to orepare a safety and environmental Y
'.c DRAFT assessment of the radioactive _ wastes that ar,e not mill tallinus but have been cJnql.i r e c o n t esyp l_a t ed,
_to be disposed in uranium mill taillnas imooundments, to cetermine what wastes are appropriate for disposal in mill tatlinas impoundments, and to report its findinos to the Leolslature.
Texas has no rules for the regulation of technologically enhanced or naturally occurring radioactive materials.
Materials containing low levels of radiation are used extensively for construction and road building in densely populated areas of the state.
The Lecislature should direct the Department of Health to develoo rules for reculation of technoIocicalIv enhanced, natura1ly occyr_r_jng,ad accelerator-produced radioactive materials 2_e,Qth l
special reaard to the use of coal and lionite ash for cinder blocks.-
The Department of Energy has delayed for ten years the cleanup of the national criority cleanno site at Susquehanna, karnes County, and has made no olans to restore the contaminated groundwater at the site.
The Leoislature should memorialize Conaress to i
investicate the delay in the Susauehanna_cleanug
(
and the lack _o.f plans to __ res t o r e the a r o u nd w.}, t e_J; at the s i f:g.
4 l
The Departnent of Energy has no plans to restore the l
groundwater damaged by Susquehanna despito contamination levels 1500 times the limits proposed by the Environmental Protection Agency.
There is no assurance that D.O.E.
Will comply with state and l
l federal laws governing the cleanup.
The cleanup at Susquehanna may set precedent for other cleanups in Texas.
-If it is not adequate, the precedent will be l
inadequate.
l The Leaislature should direct the Department of Health to report recularly to the Senate Subcommittee on Health Services on the Deoartment of Enerov's cleanuo olans and activities at Eusouehanna, and on D.O.E.'s compliance with state and federal standards.
/
DRAFT t
ADMINISTRATIVE REFORMS Agencies have systematically reduced access to public records.
+
The Leoislature should amend the Administrative P,rocedures and Texas Reoister Act to insure that public records held by acencies remain accessible to the oublic.
i The use of in-house hearings examiners, sometimes drawn from an agency's legal staff. gives the appearance of partiality and unfairness, and may sometimes be unfair g_J in fact.
The Leois1ature should estab1ish a eentrai cane 1 of administrative law judoes. under the Suor_eme Court. to orovide hearinas_ examiners f o r,_a l l acencies that hold administrative hearings.
The public lacks access to impartial oublic counsel.
The Lecislature_should establish a General Office of Public Counsel, as a seoarate acencv. emoopered to represent the cublic before state and federal acencies.
Citizens are forced to spend large sums in improving and correcting agency decisions in permit cases with no opportunity for fa!r reimbursement.
The Lecislature should orovide that reasonable fees and ewoenses be_. awarded to orotestants of new or renewed permits for substantial imorovements, denials. or withdrawals of permits, oermli tenewals, or oermit amendments.
e
DRAFT l
G E N E R A L.
INFrORMATION i
BACKGROUND Uranium mill tailings are the wastes left over when uranium is refined from ore.
They are composed mainly of radioactive earth and sulfuric acid. The tallings are stored in large impoundments ranging from several tens of acres to over two hundred acres, called " ponds" in the jargon of the industry.
In fact, the impoundments are lakes of radioactive dirt and sulfuric acid.
The radiation comes from radioactive elements that.are present in the original cre, but are not removed in the refining process.
Uranium itself is not highly radioactive.
However, the elements that result from radioactive' decay of uranium, the daughter products, are highly radioactive.
These include radioactive forms of thorium. radiumi radon gas, polonium, and bismuth as well as radioactive luotopes of lead.
The refining process leaves the daughter oroducts in the tailings, so the tailings are about 85 percent as radioactive as the original ore.
(National Environmental Research Center, Office of Research and Development. " State of the Art, Uranium Mining. Milling, and Refining Industry.:
Report No. EPA-660/E-74-038, U.S.
EPA. June. 1974.]
f c
Radiation is not the only health and environmental threat from uranium mill tallingv..
The hazardous chemicals in the tallings may,.in fact, be the larger problem, since they are more likely to contaminate soil, groundwater, and surface water.
In addition to sulfuric acid. tailings contain other industrial wastes such as contaminated petroleum, various salts, and heavy metals.
Uranium mill tailings impoundments are not constructed to the standards that are currently required for secure containment of hazardous wastes.
In fact, they are not designed to the standards currently required of municipal landfills permitted for household refuse.
1 l
A further concern is the practice of dumping other l
radioactive wastes in mill tailings ponds.
The l
Conoco/Conquista Project was allowed to accept a wide l
variety of waste from other producers.
These wastes include L
residues from the Rhone-Poulenc Corporation's rare-earth refining operation at Freeport.
Rare earth refining wastes are more than a thousand times more radioactive than uranium mill tailings and are also chemically different.
Both the increased radioactivity and the altered chemistry of the 7
');
QRAFT disposal impoundment may complicate control, containment.
and closure.
At the same time, some industrles produce radioactive byproducts that are compatible with uranium mill tailings and are suitable for disposal in mill tailings ponds, provided the ponds are constructed to adequate standards of containment.
I i
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j DRAFT o
OVERVIEW The dangers of improperly operated uranium tailings sites came to national attention during the 1970s.
The-health hazards associated with these sites were sufficiently compelling that Congress passed the Uranium Mill Tailings Radiation Control Act of 1978.
The Act provided for a match of ten percent state money to 90 percent federal money to clean up abandoned uranium mining facilities. Under the 1954 Atomic Energy Act, the federal government owned all urantum in the United States. whether it had been mined and refined or was still in the ground.
The federal government helps to pay for cleanup activity only on sites that produced uranium for the government during the period of erclusive federal ownership.
Congress amended the Atomic Energy Act in 1976 to allow private ownership of uranium.
The states are responsible for insuring the cleanup and long term care of the sites of mining companies that have sold uranium primarily to private industry following the 1976 amendment.
URANIUM MILL TAILINGS S!TES IN TEXAS Texas currently has two active and two inactive uranium mill tallings sites.
They are located in the belt of rich l
uranium ore, thirty to sixty miles southeast of San Antonio, l
i Susouehanna -- Susouehanna Western The federal government has designated one inactive facility.
Susquehanna, as a national priority. cleanup under the Uranium Mill Tailings Radiation Control Act. Susquehanna.
near Hobson in Karnes County, will be the joint responsibility of the state and federal government.
During l
the 70th Legislative Session, the legi s l a tur e appropriated
$2.2 million, in an amendment to the general appropriations bill sponsored by Senator Truan, to match $19.8 million from the federal government to fund the cleanup.
Over 90 acres of tailings ponds and up to 800 acres of l
contaminated adjacent land will be piled into a pyramid 127 acres at the base, and 66 feet high, capped with clay, and armored with stone.
There are no plans to clean up the major groundwater contamination in the area despite contamination of the Deweesville/Conquista aquifer about 150'O times the limit proposed by the Environmental, Protection Agency.
Susquehanna Western, Inc. began operations in 1961, before Congress imposed standards for tallings impoundments.
The mill ceased operations in 1973.
In 1977, a partnership
-.2
3.
1 DRAFT consisting of Solution Engineering.
Inc.. of Alice, Texas and Basic Resources, Inc.. of Da l l a n bmlan solution extraction of uranium from the spent mall tallingu.
The cleanup at Susquehanna has been long delayed.
In 1974, a Congressional study identified Susquehanna as requiring government cleanup action.
Susquehanna was officially designated a " national priority" cleanup after passage of the Uranium Mill Tallings Radiation Control Act in 1978.
The Department of Energy did not begin to plan the cleanup i
until 1986.
Construction is scheduled to begin in late 1989 g D.O.E. has no plans to clean up the extensive groundwater contamination.
Congress did include groundwater cleanup as
- a. requirement under UMTRA.
Another part of the problem is that the Environmental Protection Agency has not finall:ed groundwater standards for sites designated by UMTRA. so D.O.E.
has no guidance for planning a groundwater cleanup.
Nonetheless, contamination is extensive in the Deweesville/Conquista aquifer, and has reached creeks that feed the Guadalupe and Nueces Rivers.
Ray Point -' Exxon The other inactive facility, Ray Point, is located in Llae Oak County near Three Rivers.
The owner. Exwon, assumed responsibility for the cIeanup of that site, even though the site qualified for cleanup funds under the Uranium Mill l
Tailings Radiation Control Act.
From 1969 through 1973, the pond was operated t'y another company, the same Susquehanna Western that left the contaminated Susouehanna facility in karnes County.
Exxon bought the pond to dispose of tailings produced at its adjacent Felder Mine.
Exxon operated the site from 1978 until 1982.
The Ray Point cond was 40 acres and 13 to 20 feet deep.
The Ray Point site has been covered. and is now in the process of revegetation.
Euxon posted $3 million dollars for financial security and has l
spent an estimated $2.2 million in closure costs.
l Conoutsta -- Conoco L
One of the two active sites, Conoco's Conquista, near Falls City in Karnes County, stopped accepting wastes on February 1,
1988.
Conoco is in the process of applying for approval to clean up and secure the site.
Conoco has been criticized for attempting to avoid responsibility for the final cleanup by selling Conquista to a company with no corocrate' assets, for operating the tailings impoundment as an ex-officio commercial dump site for a variety of radioactive wastes.
for operating as a dump site after closing its own uranium mill in violation of its Railroad Commission license. and for operating under an expired Department of Health permit for several years.
/0
ji
- P' DitAF T Conquista has 240 acres of tailings ponds.
About 160 acres are filled, and 80 acres were active until February 1,
- 1999, i
In 1986, Conoco applied for permission from the Department of Health to transfer its license to operate Conquista to a corporation, Conquista Project, Inc., consisting of three individuals with no substantial assets.
Rather than sell
)
the site, Conoco was to pay Conquista Project $7 million to serve as the corporate assets of the company for financial security purposes.
Conquista Project was to operate the tailings pond as a radioactive dump site. Landowners in the vicinity spent over $50,000 in contesting the transfer, which was denied finally denied.
Conoco's license from the Department of Health expired in 1990, but has been cont inued wi thout renewal or review since that time.
Uranium mining and refining ceased at Conquista in l'o82. but Conoco kept the disoosal pond open to receive outside wastes from a variety of sources until February 1.
1999.
In December. 1987, the Railroad Commission issued a draft report stating that Conoco had operated the site illegally since it was not licensed to uperate after closure of the mill in 1983.
Chevren Pannt Maria Preject Chevron's Panna Maria facility, near Panna Maria. Farnes County, is the only uranium mill and tallings site currently in operation in Texas.
Panna Maria or*; esses ore from a New Mexico mine and reprocesses radioactive wastes from a variety of sources such as the Kerr-McGee' uranium refining operation in Oklahoma.
There are plans to mill ore from an l
open pit mine the Anaconda Corporation plans to open in South Texas.
The mill tailings pond is 160 acres.
j Panna Maria is currently (November, 1988) applving for i
renewal of its operating permit for the first time since l
1977.
Chevron has been criticized for reprocessing wastes from the Kerr-McGee Company's uranium recovery facility in Oklahoma L
because of the suspected incompatibility of the resultant
, astes for disposal in the mill tailings pond, for suspected w
i groundwater contamination, for operating for several years l
under an expired Department of Health license, and for attempting to prevent public comment on its license when it i
l came'up for review in 1988.
The operating permit for Panna Maria has been contested on the grounds of failure to contain the wastes.
The Environmental Assessment for Panna Maria states:
I m
DRAFT The Texas Department of Health staff concludes that seepage through the silt-clay layer is occurring at t much greater rate than the I to 2 feet per year projected by Chevron in the original license application reports.
It is possible that seepage from both the kallings impoundment and the drainage collection ponds is recharging the "B"
sand (See Section 6.7).
C" Environmental Assessment, Safety Evaluation Report, and Proposed License Conditions Related to the Renewal of License No. 902402. Chevron Resources Company, Panna Maria Uranium Project. Karnes County, Texas," Page 57.]
i The Environmental > Assessment warns that the contaminated groundwater will follow the hydraulic gradient to the southeast toward water wells used for domestic and agricultural purposes.
The danger is that these wells or new wells drawing from the affected aquifer could become contaminated at some future date.
Statewide In addition to uranium mill tallings sites. Te::as also has 6 uranium solution mines in full operation and 12 in various stages of restoration.
Two permits have been issued to mines that have not yet begun operation.
Texas also has numerous sites containing other wastes with radioactive components.
In general, these wastes are less radioactive and less chemically hagardous than uranium mill tailings.
l However. some of these wastes may contribute to more widespread public exposure to radiation by increasing the general background of radiation in urban areas and in residences, places of work, and other structures.
Because regulatory agencies have concentrated their efforts on wastes with higher radioactivity, they have been slow to adopt rules to control public exposure to materials that
. produce a low perceived risk.
WHAT ARE THE DANGERS l
1
" Uranium mining and milling waste products may be a greater environmental and health concern than the fission products and transuranic waste from present and future fission reactors for electric power gengnation."CDreesen, David R.,
" Uranium Mill Tailings Environme.ita l Implications", Los Alam'os Scientific Laboratory; LASL Mini-Review, Fubruary.
1978.3 Because mill tailings lie on the earth's surface, they pose "a greater potential problem" than deeply buried high-level waste. [Gillinsky, Victor, Nuclear Regulatory Commission, nennot n..
i in c i v i iu u,.
,s..
i
TV} '
a' ',
a DRAF' T 7
presentation to Pacific Southwest Minerals and Energy l
Conference, Anaheim, CA, May 2, 1978, NRC Office of Pub!!c Affairs, No. S-70-3.3 Uranium mill'tallings release radon gas for several hundred thousand years and, "It becomes the dominant contribution to h.
radiation exposure from the nuclear fuel cycle."
(Victor Gillinsky, op. cit.]
Uranium mill tallings contain chemically hazardous substances as well as radioactive materials.
Because mill tallings impoundments are not constructed or operated to the same standards as hazardour waste disposal facilities, they i
do not insure secure containment of chemical hazards.
The dangers cited for uranium mill tallings apply also to NORM wastes.
Although some NORM wastes are less radioactive than uranium mill tallings, their extensive use in populated areas for road base and for structures may result in greater public exposure.
The use of ash-from coal and lignite-fired power plants as a filler in cinder blocks is especially troublesome..
A 1983 study by the Department of Health found that the fly ash and bottom ash from many Texas power plants contains radioactive
' materials.
One product of radioactive decay is redon gas, a known carcinogen that is dangerous mainly when contained in structures.
The use of contaminated cinder b l ocle s for any structure in which people will work or live may pose a serious health threat.
No study of the health effects of the use of NORM in structures has been accepted by the National Conference of Radiation Control Officers as.alid.
t 4
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REPORT ON URAhtlUM M{LL TAILINGS Page 13
pa d>
F
'm urmF1
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7 t
V 11 REGULATION Federal Reculation M
The federal. government is the primary authority for radiation control under the Atomic Energy Act of 1954, as amended.
A state'may be granted the authority to conduct p
its own radiation control programs provided that the Nuclear Regulatory Commission rules that the state's standards are at least as strict as-the federal standards.
Texas is one of the " agreement" states, and conducts its own orogram. The
- 3..
Nuclear Regulatory Commissior maintains jurisdiction over
'l c"
the high-level and transuranic wastes produced by weapons manufacturing and nuclear power plants.
L The Uranium Mill Tailings Radiation Control Act o f: !?78 requires remedial action at the most hazardous inactive uranium. mill tailings impoundments, and provides federal matching funds for cleanup of priority sites.
State Reculation Responsibility for environmental protection in Tenas is divided: among sarious agencies with special excertise in a particular regulatory. arena.
Since the concerns of agencies overlap in some areas. Tenas law designates a lead agency with primary authority in a particular arena, and sttoulates that the lead agency consult and coordinate with other agencies that have particular concerns or expertise in that
-arena.
The.various agencies use memoranda of understanding.
to establish.their respective roles and responsibilities in areas of overlapping concern.
The Texas Radiation Control Act of 1981 vests primarv authority for Texas' radiation control program in the-Texas Department of Health (Article 4590f, V.A.C.S.).
The Department of Health regulates the handling of radioactive materials and the disposition of mill tailings.
i.
The Texas Water Commission has jurisdiction over ha ardous wastes under the Solid Waste Disposal.Act (Article 4477-7, V.A.C.S.),
but is prohibited from adopting rules and from engaging in any regulatory activity with regard to'the hazardous constituents of mill tailings that conflic t wi th state or federal rules regulating radioactive waste (Article 4477-7, Sec. 3 (d)).
However, the Water Commission regulates the solution mining of uranium because of the Commission's jurisdiction over injection wells and, groundwater (Chapters 26 and 27, Texas Water Code).
A memorandum of understanding with the Department of Health gives the Department authority over the handling and management of the radioactive >sterials produced by solution REPORT ON URANIUM MILL TAILINGS Page 14
5
' t',
DRAFT L
~
mining.
As a rule of thumb, the Water Commission regulates all solution' mining activities that take place below the surface'of the. ground, while the Department of Health regulates all above-ground activities.
The. Texas Railroad Commission regulates the actual surface mining of uranium ore under the Texas Surface Mining Act.
The Railroad Commission has adopted a memorandum of f
understanding-with the Department of Health giving the Department authority over the mill tailings ponds and the radioactive materials produced in the mining and milling,-
including the tallings.
REGULATORY CONFLICT l
1 There is.a conflict between the federal regulations and the i
states' rules.
Texas' definition of " byproduct material in 1
l 4590f, Sec 3 (a)(2).
V.A.C.S.,
defines " byproduct material" as:
The 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 l.
resulting from uranium solution extraction processes,
[
and other tailinos havino similar radioloolcal' L
characteristics. Cemphasis added]
The Nuclear Regulatory Commission has held that this definition is broader than the federal definition, and includes wastes that were not envisioned by the federal Atomic Energy Act. CSee discussion under Findings and l
Recommendations, #15.]
The broader Texas definition has been the center of controversy.
Onp one hand, it authorizes regulation of wastes other than uranium mill tailings under the Texas Radiation Control Act.
In an ideal world, this would lead to more thorough regulation.
On the other hand, the Department of Health has used the broader definition to permit' disposal-in mill tallings ponds of wastes that are i
thousands of times more radioactive than uranium mill tailings and may be chemically incompatible with mill tailings.-
[ Letter to Stuart Henry, Austin attorney, from G.
Wayne Kerr, Nuclear Regulatory Commission, dated March 23, 1987.3 Although the Nuclear Regulatory Commission h as recommended that the Department of Health prepare a safety and environmental assessment of the tallings impoundments as part of a decision package on such disposal, the Department
/ >/
bl DRAFT has 'no t done :so. CLetter to Dr. Bernstein, Commissioner of Health, from G.
Wayne Kerr. dated March 23, 1987.]
Memoranda of Understandino The purpose of memoranda of understanding is to implement 1
and ccordinate regulatory activities where the j
responsibilities of agencies overlap.
The Water Commission j
and the Department of Health have two memoranda of understanding concerning radiation.
One addresses solution mining pursuant to 4477-7, Sec. 3 (d).
The other memorandum addresses " mixed wastes" (wastes containing both radioactive 1
and chemically hazardous components) pursuant to Chapter BA 1
ofLthe Water. Code.
i Problems with MOUs The Administrative Procedures and Texas Register 4 t e nd.
court cases have mandated that all rules offectin9,pri/ ate.
parties must be adopted pursuant to the procedures'of in the l'
APTRA.
The Water Commission and the Department of: Health have adopted MOUs by an informal, internal process'that does j
not insure' adequate outside criticism of their provisions.
{
1 Consequently, MOUs may permit regulatory gaps to continue or may impose confusing or unreasonable regulations.
Since they are not adopted by the I
. orocedure, MOUs are not f
notice that appit to subject to the same publicat.
rules.
They may*not appear body of an agency's
,ublic access to important i
rules.
These practices deny w
agency policy.
The agencies ti.wmselves have become confused
,h about the application of their own MOUs.
The hearings of the Subcommittee on Health Services uncovered a particularly pertinent example of these problems.
Both the Water Commission and the Department of Health submitted testimony concerning the regulation of radioactive contamination of the state's waters.
Although each agency maintained that the MOU on " mixed wastes" l-provided adequate protection, neither agency was able to l
substantiate that, claim with relevant examples of regulatory a c t i o ns.-
1 As a result of the conflicting claims of the two agencies, Senator Truan formally intervened to protest renewal of a Water Commission wastewater discharge permit where the possibility of radioactive contamination had been documented.
The existing permit contained no radiation limits.
A file search found no record of consultation between the Water Commission and the Department of' Health as l:
required by Commission Rule 31 TAC 305.52 or the " mixed waste" memorandum.
Further, the Water Commission legal staff maintained that it did not have jurisdiction because the MCU on " mixed wastes" applied only to chemically hazardous materials and not to water contamination where no chemically hazardous component was present.
The Commission l'
DRAFT subsequently ruled 11 favor of Senator Truan's stipulation that radiation limits should be added to the discharge permit.
Further, both TWC and TDH have begun meetings to formulate a memorandum intended to be directly applicable to
_ radioactive water. contamination.
The entire exercise could_have been avoided if the original memoranda had been subject to public scrutiny when they were first formulated.
The purpose of the rule making system under the Administrative Procedures Act.is to provide scrutiny of agency rules to prevent the creation of regulatory loopholes as well as unreasonable regulatorv complexity and injustices.
Memoranda of understanding exist in the critical area where agency responsibilities overlap.
and where confusion is most likely to arise.
Therefore. It is particularly important that they receive adequate outside review.
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i REPORT ON URANIUM MILL TAILINGS Page l'
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DRAFT APPENDICES h
Appendix A:
What is Radiation?
Strictly speaking, radiation is any emission of electromagnetic waves or particles.
In that sense. the light'from a lamp and radio signals is radiation. These I"
forms of radiation are not dangerous because they have low lP energy and because they do not interact with subatomic j
D particles.
By _ analogy, a microwave oven will heat water and fats because the wave-length of the microwaves allows them to s t imul a te: molecules of a certain site.
However'. the oven will not heat plastic or wax because the waves do not stimulate the large molecules of those substances.:
1 Radioactive elements are unstable; their atoms decay or break apart.
The decay of an atom results in the emission of radiation. either electromagnetic radiation or particles or both.
Gamma. rays are an electromagnetic product of radioactive decay.
Particles are subatomic units with mass and usually with an electrical charge.
Alpha particles are identical to a helium nucleus.
They contain two protons (positively charged) and two neutrons (no charge).
Beta particles are free electrons.
They have a negative charge.
Protons-and positrons are positively charged.
Rad io ac t i'.e j
decay produces gamma and X-rays as well as particles.
Besides radiation, radioac tive decay of an atom results in l
an atom or atoms of lighter weight -- another element called a daughter product.
New elements resulting from radioactive decay may, themselves,-be radioactive.
For example.
uranium-238 decays to thorium-234, and emits an aloha particle in the process.
The thorium atom may decay to protactinium-234 and a beta particle.
Radioactive decav L
continues until it produces a daughter oroduct that is not radioactive.
For example, uranium-230 eventually decavs to L
lead-206.
Table I shows the dominant decay pattern for uranium-238.
Several of the daughter products of uranium decay are l
hazardous.
Radon-222, for example, is the daughter of l
radium-226, part of the uranium decay chain.
Radon is a colorless, odorless gas with a fast decay rate, meaning high radioactivity.
Radon has been identified as a major public health hazard, not only because of its own radioactivity, but also because its daughter products, which are not gasses, can be absorbed by the body where they emit L
radiation as they decay further.
Lead-214 and bismuth-214 are radon daughters that emit high-energy gamma radiation.
i
/f
R.
.O' DRAFT t
- l uranium 238 i
l uranium pr tactinium thertum
.l 234 234 234 [
therlum230 1
1-l radlum I
226 j
i p
222
[
radon polonium 218 lead bismuth Polonium 214 214 214 polonium 210 210 210 I
lead (stahN)
,J Note:
Vertical direction represents alpha decay, the loss of the mass of two neutrons and two protons for a loss of atomic mass of 4.
Indicates that the isotope produces gamma rays.
j TABLE 1:
Uranium Decay Series. Selected Path O
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DRAFT 3
Appendix B:
Understandino the Health Effects of Radiation j
Health effects result from exposure to ionizing radiation --
radiation with the power to ionize atoms by knocking subatomic particles from them.
lons are molecules or atoms with an electric charge.
lonizing radiation is electromagnetic waves with very short wave lengths and high energy (ultraviolet light, X-rays and gamma rays) or subatomic particles such as neutrons, protons, or helium-nuciel (Alpha particles).
i t
There are four basic principles in understanding thw health effects of radiation:
- 1) the health effect depends on the type of radiation and its energy:
- 2) the effect of external radiation is different from the effect of internal radiations i
- 3) the health effect depends on the age of the person exposed and, at any age, on the organs exposedt i
- 4) although cellular damage can occur at low doses sf radiation, actual health risk risk of significant health effects -- depends, statistically, on the total dose taking into account all these factors as well as frequency of exposure.
Ionizing radiation varies in its' threat to human health, depending on its energy and ability to penetrate the body.
The-ultraviolet rays in sunlight have relatively low energy.
compared to X-and gamma rays.
They do not penetrate deeply into the body.
However, they have enough energy that continued exposure to sunlight can causry skin cancer.
X-rays are intermediate in. energy.
They penetrate.the body easily, so they are useful for medical p h o t o g r a p h y '.
Because their energy is not very high, X-rays are less likelv to cause damage than gamma rays.
However, they have enough energy to harm fast-growing cells, so it is very danger ous to X-ray pregnant women and infants.
X-rays affect all fast-growing cells, so it is dangerous to expose certain organs such as the male testes.
That is why X-ray technicians shield as much of a patient's body as possible when taking X-ray photographs.
Alpha particles, which are emitted by such common sources as smoke detectors, do not have enough energy to penetrate the layers of dead cells on a person's skin.
However, they can penetrate the wall of a living cell, so an alpha source within the body -- inhaled or ingested -- is dangerous.
.1 i
DRAFT When an atom is. ionized, its chemical reactivity changes, and any molecule.it is part of will change or disintegrate.
J When molecules within a cell are ionized, they become " free radicals" and can cause aberrant chemical reactions within the cell..
If the DNA of a cell is affected, genetic damage occurs.
The human body is mostly empty space from the coint of view of a radioactive wave or particle.
The probability of a single wave or particle hitting a molecule in the body is quite small.
However, as the-dose of radiation increased, the probability of genetic damage increases proportionately.-
One medical X-ray is composed of billions of rays passing through the body.
When genetic damage occurs, one of.several things will happen.
- The cell may repair the damage.
in that case.
there is no problem.
The cell could either live in a crippled state or die.
That is not a problem if only a small number of cells are damaged, if a very l arge' number of cells is affected, the victim will show the symptoms of radiation poisoning, and may die.
This ontv happens uith large doses.
In some cases. the affected-cell can begin to L
reproduce uncontrollably.
Then it is a cancer cell.
If the body's immune system can destroy the cancer cells before they overwhelm it, there is no problem.
Otherwise, the person will develop cancer.
On the other hand, if a reproductive cell is affected -- an egg or sperm cell -- and the cell remains alive, it can produce a nonviable fetus or.
a birth defect.
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Appendix C; What Are Radioactive Wastes?
i There are several classes of radioactive waste oroduced by a variety of activities.
Producers include hospitals'.
biomedical research, university research, certain water
, purification operations, the oil and gas industry, the nuclear power industry, fertilizer manufacturers, large scale metal fabricators, the military, rare-earth refining, and the uranium mining and refining industry.
Radioactive wastes are classified by the source of the waste as well as its radiological and chemical characteristics.
High-level radioactive waste produced by the nuclear power industry and in weapons production is regulated exclusively by the federal government.
The less radioactive wastes from other sto ces are regulated by the federal government or by states ander special agreements.
Texas has its own radiation control program under an agreement with the Nuclear Regulatory Commission.
4/
i f.'
i DRAFT Texas regulates two types of waste.
Type-one wastes are produced by medical, industrial, and educational /research activities.
-These wastes as well as all non-fuel wastes from nuclear power plants must be disposed at low-level disposal facilities such as the Texas Low Level Radioactive Waste Disposal Authority site in Hudspeth County.
Type-two wastes are:
The tallings or wastes produced by or resulting from the extraction or concentration of uranium o r. 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:
characteristics. (Article 4590f, Sec.
3, (2).)
Strictly speaking, uranium mill tailings are the waste fecm the production of uranium. However, according to Texas' definition of Type-two' waste, other radioactive materials may be regulated as mill tailings.
One consequence 1of including other materials under the Texas definition is uncertainty about the characteristics of these other wastes e
and their compatibility with the mill tailings themselves.
Mill tailings contain hazardous chemicals that can contaminate soil and water.
Mill tallings impoundments can be fairly characterized as lakes of sulfuric acid and radioactive dirt.
The acid tends to keep ha:ardous materials such as heavy metals in sol.ution, and is, itself, a hazardous substance.
The chemical components of mill tallings; tend to move more readily through soil layers than do the radioactive components, and may' pose a greater threat to groundwater, health,'and water supplies than the radiation itself.
=Another category of radioactive waste is produced when naturally occurring radioactive materials are concentrated as a consequence of.some unrelated industrial process.
Examples include the tailings from are-earth refining and other mineral-extraction processes, the fly and bottom ash from coal-and lignite-fired power plants, spent resins from water purification equipment, the scale from oil and gas production equipment, and bulk residue from phosphate
. fertilizer-production.
These wastes are known-under the acronym " NORM" for " naturally occurring radioactivei materials."
The term is somewhat misleading, and the definition " technologically enhanced radioactive materials" (TERM) is sometimes used instead.
i Texas has no rules or regulations governing NORM or TERM wastes.
M m.
E.
3 1
t' DRAFT Appendix
. E: Solution minino for Uranium Solution mining is a process that dissolves uranium from its ore without removing the ore from the ground.
Solution mining.is sometimes called "in-situ" mining because the ore is treated "in place."
In solution mining, an injection well pumps a solvent called lixiviant into the ore body, and a ring of production wells pumps the uranium bearing lixiviant from the ground.
Modern solution mining does not create mill tallings per se, although it does.
create other radioactive wastes that are classified as mill
, tailings for regulatory purposes.
These " discrete surface wastes" amount to about 16 tons per ton of yellow cake produced (Kuhaida, ibid.)
Older solution mines produced large volumes of contaminated sulfuric acid much like the tailings from conventional mills for surface mining.
Modern solution mines use carbonated water to dissolve the uranium.
Some older mines used ammonia, which has, created problems.of groundwater contamination.
The-purpose'of the lixiviant is to dissolve the uranium -- to make it bater soluble and mobile.
This is an important concept since it relates to one of the hazards of-solution mi
<s.
Treatment of the 1,ixiviant precipitatos uranium oxide --
yellow cake.
Then the spent lixiviant must be disposed.of.
Two disposal methods are in currer.t use, deep well li n j ec t i o n and irrigation, in deep well injection, spent fluid is injected into deep, geologically secure strata using techniques identical to deep well disposal of other.
hazardous materials.
Irrigation is an experimental disposal process wherein the spent fluid is treated further to remove contaminants. and its volume is reduced by evaporation and transoiration when it is sprayed as irrigation water on l
fields.
Although solution mining does not produce the large volume of mill tailings characteristic of surface mining, it does produce radioactive wastes.
Some of those wastes include parts of the surface facility such as scale-clogged. piping and other contaminated components of the extraction i
equipment.
Irrigation disposal of spent production fluid produces two waste streams.
First, cleaning the fluid prior to irrigation involves precipitating the remaining radioactive contaminants from the fluid with barium vulfate l
in special settling ponds.
The contaminated residue from the' settling ponds must be disposed of by either deep well l
injection or surface disposal.
Second, the irrigation water L
still contains radioactive contaminants that build up in the irrigated soll as the irrigation water evaporates or is transpired by vegetation.
t Solution mining can lead to environmental contamination t
l through several channels l
l REPORT ON URANIUM MILL TAILINGS Page 24
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'I DRAFT 1.
Lixivian't can travel out of.the production strata through' sand intrusions-and faults.
Both possibilities 1
are increased by the tendency of uranium to be found in areas subject to either or both. conditions.
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2.
The operator can fail to withdraw a larger volume of water and fluid than he injects.
Over-pumping is' the only way to-insure that the lixiviant does not migrate-past the production or withdrawal wells to
' ~
contaminate adjacent groundwater.
Operator vigilance is the only protection against this result.
7 3.
When the ore body is depleted, all remaining.
lixiviant must be removed from the ground.
Groundwater restoration requires repeated flushing with large volumes of clean water.
Older solution mines used ammonia as the lixiviant.
Since ammonia bonds with clay, and releases slowly over time, older solution mines can never be adequately restored. and eventuall.-
contaminate a wide area.
These mines have been; granted exemptions by the Water Commission from complete groundwater restoration.
The newer mines using-carbonated water as the liniviant are easier to; restore.
i 4
Spent production. fluid. the residue from barium settlement ponds, and other surface wastes of tly e mining operation must still be disposed of.
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1 DHAFT-l I
FINDINGS i
C% V4 L)
RECOMMENDATIONS j
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REGULATORY ISSUES L
The Subcommittee on Health Services found serious deficiencies in the regulation of radioactive wastes.
The Permanent School Fund is threatened by significant i
liabilities accruing to closed uranium mill tallings sites.
The Radiation and. Perpetual Care Fund is inadequate to its l
purpose of isolating dangerous materials in perpetuity.
Serious inadequacies exist in the rules and regulatorv practice.
Questionable breaches of acceptable regulatory practice have occurred.
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1.
TITLE TO CLOSED URAN!UM MILL TAILINGS SITES I
The leoislature should sticulate that title to closed i
uranium mill tallinos sites shall revert to the Texas Radiation Control Acency.
l L
The Permanent School Fund is threatened with significant liabilities unless the legislature acts promptly to' vest title to closed uranium mill tailings sites in some other t
agency.
After closure and approval of the closure by the Department of Health, title to closed uranium mill tailings sites reverts to the State of Texas.
Under current law and practice, title to property that reverts to the state is vested 1.n the Permanent School Fund.
The function of the Permanent School Fund is to provlie revenues to support public education.
For that purpose, the state acquires productive assets; yet.-closed mill tailings sites are not Lj) only nonproductive, but are actual liabilities.
An example of the Permanent School Fund being saddled with a liability is a hazardous waste site near Crosby.
The property has been designated as a federal Superfund site.
Since title had reverted to the state with no designation as to which agency would have responsibility, the Permanent School Fund was forced to accept the title.
The Permanent School Fund is now a "potentially responsible party" in the cleanup of'the property, and the Permanent School Fund may be charged with the state's share of the cleanup costs.
Ob
l:
DRAFT e
The General'Lahd Office-has-asked the legislature, through the Senate Subcommittee on Health Services, to stipulate in e
law that title to' closed sites become the responsibility of j
the Department of Health.
2 DEDICATION OF INTEREST FROM THE RADIATION AND PERPETUAL CARE, FUND The leoislature should direct that interest earned by the Radiation and Ferpetual Care Fund be placed in the Fund to finance the lono-term care and maintenance of closed
[
tallinos sites..
s Since the Radiation.and Perpetual Care Fund does not accrue the interest it' earns, the state may not have enough monev l
to monitor and' maintain closed mill tailings sites or to i
correct problems that occur. according to the Depectment cf Health.
Upon final-closure, title to closed mill tailings sites reverts to the State of Texas.
When the closure is approved, the operators of tallings. sites pay the current
..l equivalent of $250,000 in 1978 dollars into the Perpetual Care Fund.
Interest earned on the Fund is placed in General Revenue.
The purpose of the Fund is to relieve the state _of the cost of the care and maintenance of the sites in perpetuity.
Care and maintenance activities will deplete the princloal of the Fund, and the Department of Health has testified that the corpus of the Fund is inadequate for actual perpetual care of the sites.
Further, should serious problems develop at any site, the cost of remedial action will deplete.the l
corpus of the Fund for long term care and maintenance.
Dedicating interest earned back to the Fund will provide money for care and maintenance. and will reserve the corpus of the Fund for emergency cleanups.
Furthermore, if the state is held liable for damages associated with a site to which it holds title, the liability would 9ccrue to the Permanent School Fund unless the logislature designates some entity other than the
.Permarent School Fund as the recipient of title to the closed site. (See s. Dove.)
Dedication of the interest of the L
perpetuct Care rund would help shield the School Fund from h
such an eventuality.
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L 3.
ABUSE OF TIMELY RENEWAL i
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nennne n.
ein uevenu uti e Tate f tlnc Pano P7
s DRAFT
+
j
+
~ The leoislature should reovire acencies to orocess permit renewals in a timelv manner, and forbid the practices of continuino evoired oormi_ts_inpefinitely_and of allowino sionificant amendments to expired oermits.
The Department of Health has allowed all the active uranium mill tailings sites in the state to operate under enpired permits since the passage of the Texas Radiation Control Act in 1981-No major mill tallings site had ever undergone a permit review under the Act until the Panna Maria Project was slated for review in the summer of 1988.
The Administrative Procedure and Texas Register Act allows permit holders to continue operating if the permitting agency fails to act promptly on a license renewal:
1 (b)
When a licensee has made timely and sufficient application for the renewal of a license... for any activity.of a continuing nature, the entsting licente does not expire until the application has been finally determined by the agency.... CArticle 6252-13a, Sec.
18.3 The Department of Health has interpreted this passage to mean that the agency is not obligated to process a renewal that is submitted in a timely and sufficient manner.
TDH calls this procedure " timely renewal."
Under this practice,
.all of the uranium mill tailings sites and several other uranium mining operations have operated without a current license since before the enactment of the Texas Radiation Control Act of 1981.
In fact, the Panna Maria mine, which was up for. renewal in 1980 under a 1977 license, was placed under " timely renewal" in 1980, and has operated under the-expired 1977 license for eight years.
Commissioner Bernstein of the Department of Health testified that the Department was embarrassed for having used the e
practice of " timely renewal." but cautioned that budget cuts had been the main impediment to prompt ac tion on permit renewals.
'The legislature should amend Art. 4590-f to require permit
' holders to submit renewal appilcations one year in advance of the expiration date, and to require the Department of Health to process such renewal applications within one year.
To further reinforce this mandate, the lecislature should prohibit all amendments to expired licenses, to encouraoe license holders to acolv and push for oromot consideration of'their renewal aoolications.
4.
FUNDING FOR REGULATORY ACTIVITY REPORT ON URAN!UM MILL TAILINGS Page 28
1 _
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' ' ':4,
. DRAFT
- r q
,m The Leolslature should amend Article 4590f to authori:e the Bureau of Radiation Control to collect fees in eNcess of Costs..
The Department of Health's Bureau of Radiation Control is seriously underfunded and under staffed.
The Bureau lost 17 staff positions in as a result budget cuts in the current biennium. The Legislative Budget Board reports that staff reductions have reduced the bureau's ability to carrv out surveillance and other regulatory activities and would hinder the bureau's ability to resp 6nd to a ma jor nuclear accident.
The Bureau receives 78 percent of Its funding from fees.
Sec. 17 of Article 4590f allows the BRC to collect fees for
~
licensing and registration, but limits the amount the BRC can collect to "the actual expenses incurred annually."
Because of the statutory limit on collections, the Bureau is forced to underestimate the fees it will charge to avoid violating the statute.
Since fee collections have been cyclic, predictions of collections have been unreliable. and the fees must be set low enough to avoid an unenpected increase in licensing activity pushing collections over the limit.
This pattern has caused receipts to " ratchet" l
downward, and has. depleted the Bureau's fund balance.
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5.
ADOPTION OF STRICTER GROUNDWATER PROTECTION STANDARDS The Board of Health should adopt substantially stricter reoutrements for-the construction of uranium mill tailinos, imooundments and for aroundwater protection than the Nuclear Reculatorv Commission's Part N rules on aroundwater protection standards.
The Nuclear Regulatory Commission has adopted new groundwater protection rules for mill tallings impoundments.
Texas, with authority to operate its own radiation control program must adopt rules that are at least'as strict as the federal rules.
The federal rules represent an improvement over current practice since existing mill tailings impoundments do not meet the standards for disposal of municipal-solid waste.
Although the federal rules represent an improvement over the status quo, they are not as strict as the rules governing disposal of hazardous waste, and they contain significant loopholes.
Texas has authority under its agreement with the Nuclear Regulatory Commission and under the federal groundwater protection rules to apply stricter standards, and should do so.
6.
AMENDMENTS TO PERMITS
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DRAFT 27 a
The Leolslature should prohibit amendments to permits within two years of aooroval of-new or renewed oermiti.
The permit process is abused by companies that apply for limited permits which they amend significantly'once the original permit is finall:ed.
Significant amendments include expansion of operations, major changes in processes, and changes in the nature of the input materials or of the wastes produced.
In other words, the amendment process is used by some applicants to conceal from the public the company's true agenda until the company can get into limited
-operation.
This ploy can reduce or avoid community opposition to the original permit.
The second purpose'is to limit allowable objections if opposition develops, in a contested cases involving an amendnien t, only objections to the specific terms of the amendment are admissiblet-the rest of the permit is not allowed as part of the dispute.
That means an affected community cannot object to the permit as a whole, but only to the amendment.
In summary, permits that would have drawn community opposition if the full entent of the company's olan been known are able to avoid controversy until the communits is
- powerless to intervene, and the community is robbed of its ability to seek improvements to the permit for the' protection of their health, safety, or property values.
The two-year prohibition against amendments will prevent these sorts of abuses.
Two years is appropriate because of
' the planning time involved with sny significant change in industrial' operations.
A coe-year prohibition would be inadequate because the first year is largely initial construction.
The prohibition will not work a hardship on honest industries because they will include their full-site l
l development plans in the initial permit or in the application for permit renewal, and will not resort to this sort of subterfuge.
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i 7.
AUTHORITY TO' REGULATE CHEMICAL COMPONENTS OF URANIUM MILL TAILINGS'AND OTHER WASTES WITH SIMILAR RADIOLOGICAL CHARACTERISTICS The leoislature_should amend Article 4477-7'to authori:e the Texas Water Commission to reculate the chemically hazardous components in uranium mill tallinos conds.
The preponderance of evidence indicates that the chemically hazardous components in mill tailings are not being adequately regulated.
The Department of Health has authority under Article 4590-f, Sec. IlA, (a),
V.A.C.S.,
to regulate chemically hazardous wastes, yet agencv personnel REPORT OM URANIUM MILL TAILINGS Page 30
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L maintain that'the Department's authority is not sufficiently clear to avoid legal challenge.
The Water Commission has authority over hazardous wastes pursuant to the Resource L~
Conservation and Recovery Act (RCRA) and over the ha:ardous waste components of mill tailings under Article 4477-7..
V.A.C.S.,
but does not regulate the RCRA wastes in mill tailings, seemingly from a desire to avoid any conflict with the stipulation under Article 4477-7 Sec. 3 (d), that the Water Commission cannot engage in regulatory activity that conflicts with federal or state law.
The existing i
memorandum of understanding on " mixed wastes" between the l
Department of Health and the Water Commission has failed to l
resolve the regulatory gap.
I L
The most appropriate solution is to clearly authori:e the l
Water Commission to permit radioactive RCRA wastes L
separately by amending Article 4477-7 to clarify the Commission's role, and to require consultation with'the Department of. Health concerning regulation of the radioactive components.
This recommendation is consistent.
with the role of the Water Commission in the regulatlon of' hasardous wastes, and reflects current practice in the.
regulation of radioactive contamination of state waters, in lieu of transferring regulation of uranium mining entirely to the Water Commission, the legislature should at.least
?
E
. clarify the responsibilities of the respective agencies.
8.
AN APPROVED CLOSURE PLAN FOR ALL URAN 1UM MINING /
o l
MATERIALS-HANDLING PERMIT RENEWALS The lecislature'should recuire that a closure olen be approved and adopted orlor to env renewal of a uranium minino or mill tallinos permit and that the closure plan be cart of the permit.'
A closure plan details the decontamination, decommissioning, and reclamation of facilities that handle radioactive materials.
It is a blueprint for closure activity.
The financial security required of all site owners is supposed I
to cover the cost of closure if the owner defaults before 1
closure is complete.
The Subcommittee received l
recommendations that the Department of Health should require I
that an approved closure plan be adopted as a condition for issuing a license.
Witnesses maintained that estimating closure costs without an approved closure plan is like l
_ estimating the cost of a building without looking at the blueprints.
The Department of Health and representatives of the mining industry claimed that closure plans are quickly outdated by amendments to the operating permits, and that alterations in the scope and nature of the mining would render the closure plans out-of-date.
- 2 i
4
'*4 DHAFT At present, The Bureau of Radiation Control does not require closure plans before approval of new or renewed permits.
The usual practice is to require a closure plan when the permit holder informs the agency of his intent to close.
The statute should be amended as followst a,
to require that a closure plan'be submitted and approved before any new permit is issued or any existing permit is renewed and that the closure plan be part of the permit and subject to public review under the permit p ocess.
b.
to require that the closure plan be updated with each amendment to the permit that will affect closure activities, and that such amended closure plan be a condition for granting an amendment.
9.
FINANCIAL SECURITY REDUIREMENTS FOR URAN!UM MINE AND MILL. TAILINGS PERMITS The leolslature should direct the Texas Department of Health to reoort on the audited, accountable costs of m i l l _ t a _i l i ng s_
cleanups nationwide to ascertain the amount of financial security that should be reouired of license holders and to assess the adecuacy of current financial security reouirements. The report should also evaluate the_ form gf security reouired in licht of the current instebility of Texas' financial institutions.
Under existing law, license holders for uranium mines and mill tailings must post financial security sufficient to pay for cleanup and closure should the company go out of business before its site is properly reclaimed.
The amount of financial security commonly required appears to be less than the costs experienced in actual closures.
For example, the 240 acre Conoco/Conquista. located'in Kar nes Cc :,m t y, has posted $7 million-for closure (S27.093 per acre).
Chevron-is required to post $6 million for its 160 acre Panna Maria Project'in karnes County ($34,375 per acre).
An equivalent site that has already undergone closure is Exxon's Ray Point facility in Live Oak County.
Exxon has spent about $2.2 million in closure activities
($55,000 per acre).
Ray point had a relatively small 40 acre pond, 15 to 20 feet deep.
Although costs do not increase proportionately to the size of the tailings pond, the amounts of financial security required do not seem adequate or consistent, especially as compared to actual' experience.
1 The other site slated for closure is not strictly comparable to the others because of the extent of contamination of adjacent property.
The Susquehanna facility near Hobson, Karnes County, has about 90 acres of tailings and will 3'A
DRAFT T_able 1:
COMPARISON OF CLOSURE COSTS WITH-FINANCIAL SECURITY REDUIREMENTS ib5EibG5"~~~~~~Fih55655L~~~~~~~~~~~~~~~~~56TU5L'~~~~~~5EEUR55Y~~~~
DISPOSAL SECURITY POND BUDGETED OR PEP SITE
-(MILLIONS)
SIZE SPENT ACRE Ray Point
$3 40 acres
$2.2
$55,000 variable due to
$22 c.
$250,000
- Susquehanna
- extensive area contamination
$27,093 Conquista 57 240 acres
$34.000 **
Panna Maria
$6 160 acres Susquehanna is not comparable to the other sites due to the extent of off-site contamination.
Calculation is based on subtracting the aoproximate $500.000 contribution to the Radiation and Perpetual Care Fund, which is assumed-in calculating security requirements.
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. m DRAFT require moving afminimum-of 85,000 cubic yards of material.
The extensive contamination of adjacent properties will require movement of large additional volumes of material.
1 The cleanup is budgeted for-$22 million (about $250,000 per I
acre).
See Table 1 for a' comparison of financial security requirements.
i The adequacy of financial ~ security requirements depends l
on the stability of Texas' financial institutions.
Although
)
the large,-national and multinational corporations use their
{
own corporate assets for financial security, smaller uranium producers must use financial instruments such as letters of 1
credit backed by banks.
Since the larger companies have been leaving the uranium industry in recent years,-the j
smaller, less secure companies have begun to dominate the industry.
Their financial nocurity is only as good as their f
banks.
Should both fall, the state will be saddled with the l
cost of decontamination. decommissioning, and reclamation.
as well as the long term care and maintenance of these facilities.
10.
AGENCY MONITORING OF POTENTIAL HAZAPDS TO THE ENVIRONMENT-The leaislature should terminate the e"istino cractice off l
allowina reaulated industries and permit holders ip cenduct their own tests and report them to the cermittino anenc.
The lealslature should direct aaencies to assess a
.i reasonable fee, adeauate for the acency to conduct the q
nsressary, tests or to contract with independent testing laboratories.
The recommended change is necessary to restory oublic l
confidence in state government.
Current prac: ice relies on L
self-monitoring by the industry.
Agencies occasionally I
require " split samples" to verify industry rec or t s, and rarely sample independently.
The most common oractice is to l
allow the regulated industry to collect the sainoles without supervision.
The loss of public confidence in the regulatory process due to industry self-monitoring was evident in the testimony.
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Monitoring is, fundamentally a public, as opposed.to,a private, function.
The processes of testing and assessment are highly technical, and should be conducted in a L
- thorouynly unbiased and systematic manner.
Only a public l
agency or a private contractor employed by and under the.
direction of a public agency can reasonably be e::pec ted to produce results that are consistently reliable for regulatory purposes.
- Further, compliance monitoring is a policing activity.
The l
goals are to prevent and to discover violations.
It is
N....
UnnFI naive and unreasonable'to expect companies to police themselves.
11.
SPECIFICITY.0F TESTING The leoislature_should recuire that all testino by state aqenc i es be conducted so as to produce results with soecificity adeouate to make Judoements in contested cases.
The Subcommittee found that the test results provided by the Department of Health sometimes are not accurate enough for
)
regulatory purposes.
The result is uncertainty concerning.
the need for action.
The Subcommittee found that there should be no justification for regulatory agencies to relv on test results that do not provide guidance for regulatory action.
An example of an inadequate test result used as evidence in a contested case concerning a wastewater discharge permit.
The test showed that the radiation was "< 54 pCL/l"'(less than 54 picoCuries per liter).
A picocurie is a measure of radioactivity.
The upper regulatory limit in this, instance
-is 30 pCi/l of Radium 226.
A protestant in the case argued that the result. "less than 54 pCi/1,"
created doubt as to whether the wastewater was under the 30 pCi/l regulatory limit, and that the result justified further testing, l
Department of Health staff. Water Commission staff ~and the permit applicant all argued that, since the test result i
l meant the radiation was under 54 picoCuries, and it did not I
show ho6 far under, there was no justification for further i
l testing, CTranscript of public hearing on Wastewater I
Discharge Permit No. 02601, July 19, 1988, permit file of the San Miguel Electric Cooperative, Texas Water Commission.]
i 12.
PROMOTION OF THE URANIUM INDUSTRY l
The leoislature should forbid employees of the Depar__tment of p
l Health from enoaoino, in any form, in the promotion or justification of the ditoosal of mill tallinos, naturally L
occurrino radioactive materials. or related radioactive material, nor of any other waste disposal activity.
It has been the practice of Department personnel to take an aggressive advocacy role in the promotion and justification of various waste disposal activities, particularly*in regard to the disposal of radioactive wastes.
The Department's advocacy gives the appearance of blas, and may, in fact.
reveal a bias toward the siting of disposal facilities.
Advocacy is incompatible with the Department's public health and regulatory role, and compromises the credibilite of the state's efforts to protect the public health.
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r The Department has found its authority.to engage i n promotional actlvitv in Artitle 4590f. SPc. 1 (R). ' w h i r.h states that it is the policy of the State of Texast To institute and maintain a program to permit development and utilization of sources of radiation for j
peaceful purposes consistent with the health and safety of the public and protection of the environment.
This' language is inconsistent with the current federal policy of separating regulatory and promotional activities since passage of the 1976 amendments to the Atomic Enc,q; Act of 1954.
Not only should the Legislature _ remove any rationalization for the Department's continued promotional activities, but it should state positively that such promotion is fo'rbidden.
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VITAL STUDIES The Subcommittee on Health Services found that a serious lack of informstion exists on the effects of uranium mining and other radiation-producing activities on huma'i hpa l th and on agriculture and other economic land uses.
Furthermore, I
an entire class of radioactive. materials remains unregulated despite their widespread use in urban areas..
13.
A STUDY OF THE HEALTH RISKS OF RADIATION EXPOSUPE l
The-leoislature should appropriate funds to the state's medical schools to conduct a comprehensive study of the health risks of radiation exposure due to industrial activities such as uranium mining.
7 There has been no valid study of the health effects of uranium mining and other activities that produce radiation on public health i n Te::as. Numerous wi tnesses e < pressed uncertainty c o nc er n i ng the health effects of long term exposure to low levels of radiation.
Considerable anecdotal evidence has begun to accumulate concerning clusters of cancers,. birth defects, and other health effects that can be
. caused by radiation exoosure.
The Subcommittee recei<ed testimony that. current technology permits efficient and economical evaluations of the health risks of varying levels of radiation e :< p o su r e.
Various statistical, methodological, and sampling problems invalidate the cancer studv-completed L
'recently by the Department of Health. Medical schools in l
Texas have the expertise to conduct a comprehensive study.
Such a study is needed, not only to assess the health risks to persons in'tne areas of urenium mining, but also to L
determine the risks throughout the state from enposure to
.the various identified and widespread concentrations of radioactivity throughout the state.
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14.
AGRICULTURE AND ECONOMIC IMPACT STUDY l.
-The leolslature should direct the Department of Aoriculture L
to conduct a comprehensive study of the impact of. uranium minino on food production and food product safety in TeMas.
i Radioactive contamination has been documented in agricultural areas.
Farmers and ranchers testified that l
contamination from uranium mill tailings had destroved water I
supplies, sickened cattle, lowered agricultural production, and impaired other economic uses of land in uranium mining regions.
The Agriculture Department reports"that in Marnes l
County alone, produces $33 million in crops and livestock.
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DRAFT Over 130,000 acres-are under the plow, and the county has 70.000 beef and dairy cattle.
Milk production is 17 million pounds.
Farmers and ranchers have been forced to take crop and pasture-land out of production because of high levels of radioactive contamination.
Radioactive contamination of soil and water may lead to i
contamination of milk and other agricul tural produc ts affecting pub!!c exposure to radiation in'widely distributed food products.
The chemical components of mill tallings are known to render water; supplies unusable and to affect agricultural production.
The data currently available is adequate to show that
- a. problem exists. but is not adequate to fully characterire the scope and severity of the,oroblem.
The study should have the following-purposes:
a.
to determi'a 4.he extent and nature of food product contamination in iwxast b.
to evaluate the extent of damage, if any,.to agricultural production; c.
to determine the point of origin of identified contaminates; 1
d.
to evaluate the effects of uranium mining on other economically beneficial uses of the land; i
e.
to make policy recommendations for the protection of public health. agricultural production and other economically beneficial land use.
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15.
OYPRODUCT DEFINITION The Leoislature should reouire the Department of Health to prepare a safety and environmental assessment of tha j
radioactive wastes that are not mill tallinos but have been l
and are contemplated to be disposed in uranium mill l
-tallinos imooundments, to determine what wastes are i
appropriate for disposal in mill tallinos impoundments, and l
to report its findinos to the Leoislature.
Texas rules differ from federal requirements in a manner that may preclude the federal government from taking any responsibility for closed uranium mill tailings sites.
There is a conflict between the federal regulations and Texas' definition of " byproduct material."
Under 4590f.
Sec. 3 (a)(2), Texas defines " byproduct material" as (2) The tailings or wastes produced by or resulting from the extraction or concentration of uranium or j
thorium from any ore processed primarily for its source
$4
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mater'lal content, including discrete surface wastes-
[
resulting from uranium solution extraction processes, t
and other tallinas havino similar radioloalcal j.
characteristics.
Cemphasis added)
The NRC has held that this definition.is broader than the federal definition, and included wastes that were not envisioned by the federal Atomic Energy Act.
(See-
" Intergovernmental Relations and Regulatory Consistency.")
The broader Texas definition has been the center of controversy.
On one hand, it authori:es regulation of wastes other than uranium mil? tallings under the Tetas Radiation Control'Act..
On the other hand, TDH has used the broader definition to permit r' i s p o s a l of other wastes in uranium mill. tailings ponds, and has been slow to regulate other radioactive wastes.
Because of Texas broader
definition, the federal government may refuse to accept title to closed tailings sites.
G.
Wayne Kerr, director of the Office of State Programs.
Nuclear Regulatory Commission, addressed.the conflict in the byproduct definition in a letter to Austin attorney,;Stewact Henry dated March 23, 1987:
"Regarding the definition of byproduct material, pursuant to the Section 274b agreement between T s :: a s and the NRC, the NRC has relinquished its authori?y and the State exercises control by State statutes and regulations.
Thus, there is no delegation of Federal authority involved in such agreements.
The MRC. staff-is aware that Texas statutes and regulations contain a definition of byproduct material which is broader than-that contained in Section lle.(2) 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 stri,igent requirements applicable to uranium or thorium mill tailings.
This is a conservative approach from a safety and environmontal standooint that is an exercise of' Texas' olenary power.
There could be a potential problem, however, in the event Texas desired to.
transfer ownership of the tallinos site to the Federal covernment rather than the State assumipo ownershio since the Federal Section lle.(2) definition of-j' bvoroduct material would then be preclydod if l
l sionificant ouantities of residues not meetino the
(
Section lle.(2) definition were 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."
Cemphasis added]
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REPORT ON URAN!UM MILL TAILINGS Page 39
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DRAFT Although the NRC interprets' Texas' broader definition as a
" conservative approach," -such an interpretation assumes 1)
-that. effective-controls are being placed on the non-uranium wastes.(see excerpt following)1 and 2) that the Texas policy is to aggressively include non-uranium wastes within an effective regulatory structure.
Each assumption was questioned by testimony in the hearings conducted by the Subcommittee.
The following letter to Dr. Bernstein, Commissione,r of Health, from G.
Wayne Kerr dated March 23, 1987, concerns rare earth refining wastes which are the subject of the preceding letter:
We have developed recommendations regarding Te :as '
regulation of the Conoco tailings site which are provided belows (1)
It is recommended that the TBRC prepare a safetv and environmental assessment of the existino taill_ngs-imooundment as a basis for decidina whether or not the current and projected licensed activities at the_Conoco site should be permitted and if so under what' conditions or restrictions.
This assessment.should deal with both radiological and nonradiological impacts.
In particular, the current and potential future impacts of the disposal of the Rhone-Poulenc care earth process wastes into the talling impoundment should be analyzed and a. comparison made of the characteristics of the rare earth process wastes and those of the tailings from a conventional uranium mill.
Tvolcally, rare earth process wastes have blaher concentrations of radioactivity and different c h em i_c a l constituents than uranium mill tallinos.
Thus there a
is a auestion as to whether the controls and conditions established for meetino the reculations pertainina to uranium mill tallinas will also offer sufficient safeauards for the rare earth process wastes."
Cem.phasis added3 The Department of Health has not prepared a safety and environmental assessment dealing with disposal of the Rhone-Poulenc wastes at Conoco Conquista.
Conoco stopped receiving Rhone-Poulenc waste on February 1,
1988.
- However, the Nuclear Regulatory Commission's suggestion continues to have merit as regards the projected cleanup and containment plans for the site.
16.
NORM STUDY The lecislature should direct the Department of Health to develop rules for reculation of technolocically enhanced 2 naturally occurrina and acceserator-produced radioactive 77
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DRAFT ~
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materials, with special regard to the use of coal and lionite ash for cinder blocks.
l The leolslature should direct the Department of Health tg determine whether there is a need to adopt emeroency rules to establish a moratorium on the use of radioactiz_e fly ash in cinder blocks and of ohosphooyosum for oavino materials in urban areas and to imoose such a' moratorium if Dublic health risks exist.,
1 NORM refers to " naturally occurring radioactive materials."
The term " technologically enhanced radioactive material" is probably more accurate because they are materials where man has concentrated radioactivity.
Evamples of NORM include phosphogypsum tailings from the production of fertilizer, the fly and bottom ash from lignite power plants, resin from some water treatment systems, some metal fabricating eestes..
scale from oil and gas production equipment, and accelerator produced radioactive materials.
Testimony from both the City of Houston's Department of Health and Human Services and the Texas Department.of Health indicated the need to develop regulations governing the treatment and disposal of NORM wastes.
In the absence of 7
regulation, NORM is used in questionable applicationn.
F oi-example, radioactive fly ash from coal-and lignite-fired power plants is used in making cinder blocks.
Cinder blocks
'are used for enclosed structures like schools, hospitals, and homes.
The cinder blocks can release radon. a colorless, odorless gas produced by radioactive deca,.
L Radon ~can accumulate inside structures, and is a serious l
health threat.
An industry-sponsored study of the radiation l
released by NORM materials -in constuction indicates that the I
problem may be insignificant.
However, the committee of the
- Conference of Radiation Control Officers assigned'to. review the report in July 1988, has not accepted the conclusions and have questioned-the assumptions of the report.
Regulato'ry strategies for NORM are now in the development L
stage, nationwide.
The Texas Department of Health'has taken l
a leading role in the development of model standards.
The legislature should encourage and direct the Department to develop rules for the regulation of NORM.
Until completion j
of the study, it is foolhardy to permi, activities;that mav L
contribute to significant public exposure to radiation, i
- 1 7.'
DEPARTMENT OF ENERGY PLANS AND DELAYS IN CLEA(IUP OF SUSOUEHANNA The Leolslature should direct the Department of Health to report recularly to the Senate Subcommittee on Health Services on the Department of Enerov's cleanup plans and
DRAFT l
E activities at Sugouchanna. and on D.O.E.'s comoliance with state and federal standards.
The Departmant of Energy has no plans to rectore the groundwater damaged by Susquehanna despite contamination levels 1500 times the limits proposed by the Environmen' cal Protection Agency.
There is no assurance that D.O.E.
will comp 3V with state and federal laws governing the cleanuo.
The cleandp at Susquehanna may set precedent for other clkanups in Texas.
If it is not adequate, the precedent will be inadequate.
The Legislature should provide' firm encouragement for the Depar tment of Heal th to aggressively monitor D.O.E.'s performance.
l The leolslature should memortatire Conoress to investica*e the delav in the cleanuo of SusQuehanna and the (ack e{
olans to clean uo aroundwater contamination at the slig.
Congress passed the Uranium Mill Tallings Radiation Control Act (UMTRA) in 1979, directing the Department of Energs to identify hazardous mill tallings sites and to clean lthem up.
D.O.E. has not yet begun any cleanup at the Susquehanna site in Karnes County. and is not scheduled to begin constructico until late 1989 or early 1990.
Furthermore. groundwater at the Susquehanna is extensively contaminated.
- Yet, D.O.E.
has no plans for any groundwater cleanup.
D.O.E.
}Ustifies its neglect of cles.nup in three ways a) Congress did not appropriate funds for groundwater cleanup; b) EPA has not developed standards for groundwater cleanup for D.O.E.'s planning purposes; and c) the groundwater will clean itself within about one hundred years.
Fur,thermore, the Department of Energy has placed the Susquehanna cleanup effort at a relatively low priority, and has not dedicated adequate resources to plan and initiate the cleanup in a timely manner.
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DRAFT i
ADMINISTRATIVE REFORMS i
Several agency practices have had the effect, and cerhaps the i ntent, of limiting public involvement in the regulatory process, and of avoiding regulatory responsibilities.
18.
PUBLIC ACCESS TO OPEN RECORDS The leolslature should amend the Adminlutrative Procedure and Texas Realster Act to insury that oublic r e c o r C(s _h_ejf.,g acencies remain accessible to the oublic.
Agencies have reduced public access to permit files bv refusing to provide documents unless specifically identified, by refusing permission to review complete permit files, and by severely restrict'ing access to any document relating to a contested case, according to verified testimony.
Consequently, public access to permit. files has been practically eliminated.
Witnesses testified'that the Department of Health, in particular, had systematically restricted public access.
A related issue is that affected persons are charged copving fees even for the basic permit documents..Without such documents, persons whose lives and property may be affected by a permitted activity cannot make any rational judgement about the suitability of the activity.
Since the basic permit i nformation can be voluminous, the fees can be prohibitively expensive. In effect, the fees prevent innocent bystanders from having the information they must have to protect themselves, or penalize them monetarily.
i Specific provisions should includet l
1 4.'
All documents submitted by the license holder and all agency documents pertaining to the license should be placed in a central public records file, except where exempt from public disclosure under other provisions of the Texas Radiation Control Act or the Open Records Act.
When any document is removed under an exemption, a notation should be placed in'the public file, describing the general content of the document.
and explaining the reason for the document'sl exemption.
b.
One copy of documents relating to particular licensed activities should be exempt from the regular document copying fees, when requested by adjacent am w en==e se,
e em ae4 4. sg e
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DRAFT landowners, and/or citizens organizations representing i
nearby residents and/or property owners.
19.
TRANSFER OF URANIUM MINING REGULATION TO THE WATER COMMISSION The leolslature should transfer the reculation of uranium minino from the Deoartment of Heplth to the Water
[
Commission. In this event, all references to the Degantment of Health certainino to the reaulation of urentum mining contained in this reoort will refer to the Water Commission.
Those duties of the Tewas Radiation Control Aaency. the Bureau of Radiation Control, not certainino t o uranjym minino shall remain vested _in the Texas Radiation Q,on M2).
E Acenev.
Moving uranium mining regulation to the Water Commission is appropriate because it would be consistent with I
state / federal coordinatlon and orderly and consistent regulation of hazardous materials, including uraniun mill tailings.
The Water Commission now has juctsdiction over over' chemically harardous wastes, including authority under the Resource Conservation and Recovery Act IRCRA).
TUC also has authority for Superfund actions.
Superfund now applies to mill tailings as well as other hazardous waste sites.
Such a move should eliminate the gap in regulation between radioactive materials and chemically ha:ardous materials, particularly with respect to enviro mental protection.
The Di artment of Health would continue to regulate' medical and l
'ustrial radiography as well as other uses of; r a d i o <- tive materials that affect the public health. The Bureau of Radiation Control would continue as the designated y
Tcxas Radiation Control Agency.
The Water Commission would continue to consult with the Bureau on regulation of the radioactive components of mill tailings, which is the current p'ractice with regard to radioactive contamination of the state's waters, mixed chemically hazardous and radioactive wastes, and in-situ mining.
The majority of witnesses with concerns over tha regulation of radioactive wastes were highly critical of the past performance of the Department of Health, and supported moving jurisdiction to the Water Commission on additional groundst i
a) the historical trend has been to give the' Water Commission additional responsibility over environmental matters as the Department of Health has failed provide
o DRAFT x.
4 adequate regulation over water supplies, wastewater treatment. and hazardous waste; b) the Department of Health does not give due consideration to general public health and environmental damage, but insists before taking action, that problems be manifested in identifiable individual health problems where it can be proven the health effect is directly traceable to some harmful material or practicel c) the Department of Health is biased in favor of promoting the uranium industry as evidenced by-speeches and promotional activities of Department officials.
i 20.
ml INDEPENDENT PANEL OF HEARING EX AMitlERS i
Tne lecislature should estab!!_sh a cential canel o f_'
ajmlnl5trative 1aw Judoes. under the Suoreme Court u.12 orovide hearinos examiners for all acencies that h_oJ g administrative hearinos.
i Tewas has allowed a significant judicial function to develop within the executive.
Major agencies currentiv emplov in-house hearings,ecaminers whose judicial function' seriously compromises the principle of separation of cowers.
The House Committee on the Judiciary, in its interim reoort to the 70th Leginlature in 1987, found that the current system has four major disadvantages i
1) adr.ihlstrative hearings appear unfair. and may sometimes be unfair in facts 1
2) the conduct of hearings by small uoards and commissions is oftentimes unprofessional l
3) there is a serious lack of consistency and uniformity among administrative proceedings; and l
(4) the conduct of hearings is unnecessarily costly.
l An additional disadvantage pertains to the Department of l
Health, where staff attorneys also serve as hearings examiners, and alternate between that duty and serving as counsel to the Department in permit hearings.
l The Subcommittee on Health Services adopts the substance of l.
the ' recommendation of the House Committee on the Judiciary.
and recommends that the legislature should create an Office l
of Administrative Hearings under the jurisdiction of the l
Supreme Court and funded under the Judiciary for the purpose of implementing the Administrative Procedure and Texas l
Register Act with respect to hearing contested cases.
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DRAFT _
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The legislation should be consistent with the following provisions:
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The office should consist cf (1) an administsatise division that can oversee the training, evaluation, discipline, and promotion of all hearing examiners in j
the state, (11) a central panel of an adequate i
number of administrative law judges, and (illi l
requisite support staff.
(b)
Use of the panel should be mandatory for all agencies in contested cases.
(c)
The office should be allowed to contract for services with local governments and also with temporary hearing examiners in the event that demand for services exceeds the supply of panel examiners.
2.
The legislature should amend the Administrati e Procedure and Texas Register Act in order to requi,re that in each contested case hearings (a) the agency shall state the rules and policies pertinent to the case; (b) the hearing officer shall be controlled by stated agency policy but shall be free of agency influence in finding facts and applying law in that cases (c) agency heads shall be authori:ed to change on examiner's decisions and findings only for reasons of policy stated in writing; and (d) if an agency changes an examiner's decision. the agency shall state in writing the rationale for the change.
l 21.
AN OFFICE OF PUBLIC COUNSEL The leolslature should establish a General Office of Public Gounsel, as a seoarate acenev. emoowered to reoresent the oublic before state and federal acencies.
l l
A separate office of Public Counsel, similar to the Office of Public Utility Counsel, will erase the appearance of unfairness and the potential conflict of interest of an employee who must oppose the decisions of his or her agency.
Only an independent counsel can be a credible council.
Fur't her, the administrative process is now so complicated that citizens are often at a loss as to how best to participate.
One function of an public counsel would be to give citizens with complaints or concerns information on the REPORT ON URANIUM MILL TAILINGS Pace 45
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,o DRAFT administra'tive process so they will know what steps to take to resolve their concerns.
22.
FEES AND EXPENSES AWARDED 10 PROTESTANTS FOR SUBSTANTIAL IMPROVEMENT OF PERMITS The leolslature should Drovide that reasonable fees and eweenses be awarded to orotestants of new or renewed o_gemits for substantial improvements. denials, or withdrawals gf permits. Dermit renewals. or oermit amendments.
Current statutes and rules do not and, realistical'f, cannet specify in full detail what constitutes an adequate permit for the protection of persons who might be affected bv the permitted operation.
Consequently, companies can submit 3
ill-considered applications that meet the test of admi nis tra t ive comple t eness wi thou t meeting the test of practical operation.
These are called "shell permits."
Persons who may be af f ec ted by the operation feel compelled to protest the permit application because of its inadeovacy.
The protestants characteristically are private citizens who l
spend large sums of their own money to protect their property from devaluation and their families from health I
hazards.
Their protests can and do result in substantial improvement of the application.
Not only do the pi,otestants l
receive greater protection as the result of their wori, but I
the applicant is protected from the liability he trould i nc,J r as a result of operating with inadequate safety controls, and the state is protected from long-term liability.
I In summary. the present system forces innocent neighbors te insure protection of their health and environment as well as t
compliance with laws passed for their protection.
They l
should be compensated for the financial investment they ma6e in that effort.
An particularly relevant example came out of the l
Subcommittee's study.
Financially strapped farmers in Karnes C.ounty paid about $50,000 in fees and expenses for an ill-advised expert witnesses and attorneys to defeat application to transfer the permit for the Conquista i
tailings pond from a Fortune 500 company to a newly formed l
" paper" corporation.
Had the license been transferred, the j
large company would have been free from liability for the idtsposal site.
The " paper" corporation had no assets of its I
own.
Had it defaulted on its responsibilities, the state would have been forced to assume liability for the site.
Tit.le would have reverted to the Permanent School Fund, and the school children of Texas would have had to pay for decontamination and cleanup with their education dollare.
The citizens of Karnes County saved Texas from that rate.
and paid for it from their own pockets.
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t-4 The recommendation will encourage applicants to submit proper permits, which will reduce administrative costs to both the state and the applicant, and will encourage applicants to work with their neighbors to resolve confilets in advance of the permit hearing process.
This recommendatidn applies to all regulatory activities in
- addition to uranium mines and mills.
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. *< a DilAF I ADDITIONAL SUGGESTIONS FOR RECOMMENDATIONS These recommendations emerged late during drafting of the report.
They are included here for the Subcommittee's consideration.
The Leoislature should mandate that radioactive wasigs remain
_the oermanent orocerty of the oceducer.
Under Texas' hazardous waste laws, the producer of the waste is the permar,ent owner, regardless of who actually disooses of the waste.
The purpose of this 1,aw was to eliminate the " ship it and forget it" attitude of producers, to encourage producers to take care in selecting a waste disposal company, and to male the producers "potentially responsible parties" (PRPs) in oaying fee any remedial cleanup that must be done where their waste was disposed.
In brief, the producer remains responsibl,e for his waste, and can be billed for any cleanup action.
T6is s t r a t e g ;.
has saved Texas millions of dollars in Superfund ha:ardous weste cleanup projects.
It should be applied to uranium mill tailings and related wastes for the same reason.
l The Leals t a ture should encouraoe the reduction!of the amount of radioactive waste oroduced.
Industry should be encouraged to reduce the amount of radioactive waste it produces inorder to reduce the disposal and containment problem.
An effective strategy that would not be burdensome to industry would be to require applicants for radioactive materials licenses to submit, as part of the application, a plan for waste reduction that would become part of the operating permit.
Responsible mining companies now have waste reeduction strategies, and actively seek new ways to reduce their wastes because of the savings in disposal costs.
Other companies attempt to avoid the costs of research and capital investment that waste reduction entails.
They prefer to dispose of large volumes of waste through the least expensive means.
Since they do not remain responsible for their wastes, no liability attaches to this approach.
These companies'should be forced to adopt methods of waste reduction.
Nonetheless, the law would not be inflexible concerning the specific waste reduction methods chosen.
The law would amend Article 4590f, 6A, to require that applicants submit a waste reduction plan as part of the permit.-
,The Lealslature should direct theDeoartmentofHealth to conduct _a comprehensive survey of sources of Dublic encosure to radiation.
As the emerging controversy about radioactive contamination near the Pantex nuclear weapons facility near Amarillo, phosphogypsum tallings in Hryston, and other radiation sources indicate, there
o DRAFT has never been an adequate evaluation or survey of the radioactive
'ho t spots" in Texas.
A survey is needed because significant i
public exposure could occur through contamination of drinking water or construction of residences or other facilities on or near radioactive sources.
The Lecislature should orovide an independent staff for the Radiation Adviserv Board.
The Radiation Advisory Board was established to advise the Board of Health on matters pertaining to the regulation of public exposure to radiation.
The Radiation Advisory Board must rely on the staff of the Bureau of Radiation Control for its technical
,information.
While this may be appropriate for purely technical matters, it may be questionable when applied to policy matters.
In 1986, Senator Truan learned that nearby residents and affected persons were not being notified of significant amendments to operating permits of nearby facilities.
Despite the fact that the law and rules were clear in this regard, the staff of the Bureau of Radiation Control opposed stricter notification requirements before the Advisory Board.
In this and other policy matters, the Advisory Board should have access to independent, objective staff support.
The Leolslature should reouire an annual report from the Bureau of Radiation Control identifyino potential health o r c b l ern s relatino to public exposure to radiation.
The report should include information on abnormal occurrences. the results of surveillance activities, licensino actions, reculatory actionst and the annual manacement audit of the Dureau of Radiation control _
orepared by-the Nuclear Reoulatory Commission.
I This requirement is necessary in light of the Bureau's history.
The t.eoislature should reoutre the Department of Health to provide a continuino update on federal transport of hioh level wastes throuch the state, j
The Department of Health reports that the federal information on transportation of high level radioactive wastes through Texas are out-of-date and incomplete.
With completion of the federal sites for disposal of high level radioactive wastes near Carlsbad, New Mexico and in Nevada, an increasing volume of highly dangerous l
material will be transported through Texas.
Texas must have good information so it can act through Congress and/of.the Governor to l
insure adequate federal cooperation on the safe transport of these dangerous materials.
Sharon M. Dragon f[
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hana maata, 21 78144-0002 March 6, 1989 l
k.
1 President Bush
' ~ - White House
. N ton, DC 20500 u
y
. 3rs
,,\\.e 3.sa Maria, fx. is located about forty-five miles ncrthwoot of Beeville i'
an ope you will take an interest in what is going on in our tom and Karnes county.
t 3..
M When the Pope visited America in 1967, Panna maria, TI gained national attention for being the " Oldest Polish Catholio Settlement in the United States".
Today it is a town dying. The reason is because it is slowely being contenhted _with 3:adigaotive wastes. Water is no 1 cager drinkable. Port 11e land is.teing condemned." M ren are bein-bem = = - M u n....
many are dying because they are so severe. Citisans of all ages aire battling all kinds of cancers and many are loosing the war.
We believe this is all happening because environmental protection rulee
,s.ye not be4a* a n +nm ad. The companies we believe are not in complsance are Chevron and Conoco. Both of these companies are still operating. Chevron has%n operating without a license since 1981 and govemment agencies in Austin refuse to investigate because
- they do not have.the manpower or funds to conduct tests and enforce the laws.
Japapose and French companies he.ve been dumping their radioactive wastes in the local trailings ponds. Why are we being used as a dumping ground for other countries wastes?
Please do something about this horrible misejustico. Make the campanies who reaped the profits pay for the cleanup.
We do not have to worry about a nueular war boeause we are already living in the aftermath.
Sincerely,
\\l> ~s Y '{'
I Sharon M Dzegen Panna. Maria Concerned Citizen e
6 s
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Texas Department of Hea ti 1100 West 49th Street Members d the Board Robert Bernstein. M.D.. FAC.P.
Commissioner Austin, Texas 78756-3199
,,,ng g,y,n.,,,,, u o.,,.4 4 r p., c h,,,m,n (512)458 7111 Raic,gh R. White IV. M D.. Vne.chairnun Robert A. Madcan, M.D.
g, y,n,n g,,ohmeyer. R N., M Px. 5.seciars Deputy Commissioner Ron 3 Anderson. M p.
Professional Services R. Jack Ayres, jf.
Don t. Brewer Hermas L Miller g,,,, o conn,ngh,m, o o 5.
Deputy Commissioner t,,,y o g,up,:.
Management and Adm,inistration Dennis K. McIntosh. D v.M joe N. Pyle, P.t.
Arthot t. Raines, M.D.
Robert O. Robinson. M.O April 5, 1989 g '," A* ( " D Barbara 1.Slover R Ph.
Oliver R Smith. Ir.. D C.
Mai M Siettnet. O O.
Idaaid H Zunket. O.0 The Honorable Jim Hightover Commissioner Texas Department of Agriculture P. O. Box 12847 Austin, Texas 787111
Dear Commissioner Hightover:
I vas pleased to hear '. hat your staff accepted our invitation to meet and discuss uranium relatr.d issues and that they found our initial meetings constructive and infermative, as did ve.
I agree that such staff interactions are valaable, and our staff looks forvard with enthusiasm to more of them.
I was, however, disturbed to read of your distress over our response to your staff report, " Agriculture and the Uranium Industry" (sent with my letter of 12/29/88), and in particular over one paragraph which apparently was construed to be a quote from your document. Ve have not received any indication of similar reactions from others who are familiar with both reports.
The Texas Department of Health (TDH), Bureau of Radiation Control staff sincerely regrets any misunderstanding engendered by the introductory paragraph of its response to " Agriculture and the Uranium Industry".
The paragraph in question is not a direct quote from the Texas Department of Agriculture (TDA) report, and the TDH staff never intended that it should be so construed.
My staff have expressed apology for the misunderstanding to Doctor Gary Keith prior to our staff meetings, and to other members of your staf f and Senator Carlos Truan's aide at the initial meeting of our staf fs.
Although the content of those introductory remarks is not a quote, we feel it accurately reflected the tone and content of the TDA report, while the remainder of our document addressed in detail the misstatements and inaccuracies in the TDA report.
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The H:n:rcble Jia Hight v r Page 2 I
Rest assured that we vill enclose both your request for correction and this
.eply containing our correction and apology with any copies of our report released in the future.
Ve are also forvarding copies of both letters to those who previously received our report (mailing list attached as per your request).
Disagreement about the contents of each of our reports should not jeopardize the success of future staff acetings.
In fact, such meetings should be th6 ide.al forum to iron out any differences. Our staff feels that, in addition to continuance of discussions on policy issues, technical issues should also be covered in evaluating and implementing policies.
Ve look forvard to the opportunity to provide any input that may be needed for a proper understanding and assessment of the technical issues.
Again, ve look f9rvard to future meetings with your staff and to continued discussion, which can only be of benefit to both o.ur agencies and to the people of Texas, Sincerely, R bert Bernstein, M.D., F.A.C.P.
ommissioner of Health Attachments cci Attached List l
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DISTRIBUTION OF DR. BERNSTEIN'S LETTER (DATED 12/29/88) TO COMMISSIONER HIGHT 0VER Senator Carlos F. Truan Senator John Whitmire Senator Chet Edvards Senator Hector Uribe Senator Craig Vashington Joe N. Pyle, Chhirman, Texas Board of Health, Environmental Health Committee Dennis K. McIntosh, D.V.M., Texas Board of Health, Environmental Health Committee Sr. Marian Strohmeyer, Texas Board of Health, Environmental Health Committec Edvard H. Zunker, 0.D., Texas Board of Health, Environmental Health Committee Arthur L. Raines, M.D., Texas Board of Health, Environmental Health Committee All Texas Radiation Advisory Board Members Auburn Mitchell, Governor's Office Craig Pederson, Lieut. Governor Hobby's Aide Doug Richnov, Senator J. Zaf firini's Of fice Jerry Hill, Texas Railroad Commission Allen Beinke, Jr., Texas Vater Commission Dale Kohler, Texas Vater Commission Rick Jacobi, Texas Lov level Radioactive Vaste Disposal Authority Blanton Moore, General Land Office Robert J. Doda, Nuclear Regulatory Commission. Region IV f
Henry D. Hay, Environmental Protection Agency, Region VI Frank Bosiljevac, Department of Energy - UMTRAP Bill Bunch. Henry, Kelly & Associates Forrest Balser, Co chairman. Citizens for Closing the Conquista Tallings Pond Andy Rives, Chairman - Panna Maria Concerned Citizens Committee i
Ed Bailey, citizen Tim Dziuk, citizen 1
Henry C. Moritz, M.D., Texas Department of Health (TDH), Region 6, Uvalde Charles B. Marshall, Jr., M.D., TDH, Region 8, Harlingen l
Kathy James, TDH, Region 6, San Antonio l
Jean Brender, Ph.D., Richard Beauchamp, M.D., Environmental Epidemiology Program (TDH)
L. Don Thurman, Associate Commissioner for Environmental and Consumer Health Protection (TDH)
Sarah P. Denton, Office of General Counsel (TDH)
Chevron Panna Maria
-Conoco Conquista i
Everest Mt. Lucas Bob Vilson I
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i March 15, 1989 RECEIVED Robert Bernstein, M.D.
pp ga y Commissioner of Health Texas Department of Health
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1100 W.
49th St.
Dear Commissioner Bernstein:
I appreciate receiving your invitation for our two staffs to sit down and discuss the policy issues surrounding regulation of the uranium industry in Texas. We've taken you up on that invitation. Staff members from my Of fice of Natural Resources have had two constructive inectings with Health Department staff members regarding uranium issues.
I agree that we should encourage such inter-agency cooperatien. A continuing dialogue will help everyone concerned with the issue bet.ter understand the policy questions that' the issue raises.
While our perspectives on the problems may differ, I am pleased to find that there are sone issues on which we can work together.
I certainly agree that TDH's regulatory efforts have been hampered by budget cuts, and our report supports increased funding for the uranium oversight program. My staff suggests that there are other areas, too, where the two agencies appear to agree.
We will continue the dialogue to further clarify areas of agreement and disagreement.
In the midst of this new opportunity for the two agencies to work together,-it is regrettable that the document you sent me- " Texas Department g
of Health Staf f Response" to TDA's " Agriculture and the Uranium Industry"--
does not reflect the same constructive attitude you presented in your letter and, in fact, requires some corrective action.
I imagine you are aware by now that the TDH Staff Response begins with what is presented as a quote from our report, but which was, in fact, written h by your staff.
We were very careful in our report to critique the state's regulatory program in a professional manner.
The quote wrongfully attributed to us uses very charged, derogatory language.
I was appalled to learn that the TDH Staff Response containing this language was sent to several senators, and I intend to see that they are informed that it was not our work.
- Others, too, have apparently received the TDH Staff Response, and they should be informed about the fabricated quote.
'I would appreciate receiving a list of those who have received copies of the report, so that we may set the record straight, and I sincerely hope that no additional copies of the uncorrected document are distributed.
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l Dr. Bernstein March 15, 1989 Page 2 l
It is regrettable that this has arisen at tho same time that we are trying to open an inter-agency dialogue.
I hope that we can resolve the matter and get on with the more positive work that we've started.
Sincerely, r
JI G '0W cc:
Senator Carics F. Truan Senator John Whit 2nire Senator Oct D%nrds Fcnator liect;;r Uribe Senator Craig Washington
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