ML20126M586
| ML20126M586 | |
| Person / Time | |
|---|---|
| Issue date: | 08/06/1984 |
| From: | Kammerer C NRC OFFICE OF CONGRESSIONAL AFFAIRS (OCA) |
| To: | Stratton S HOUSE OF REP., ARMED SERVICES |
| Shared Package | |
| ML20126M127 | List: |
| References | |
| FOIA-84-709 NUDOCS 8506200394 | |
| Download: ML20126M586 (1) | |
Text
. - _ - .
/ 'c UNITED STATES 4
E" ~ ,'n NUCLEAR REGULATORY COMMISSION
, [- 1 I wAsHiNoTos. o. c. 20sss e,
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August 6, 1984 t
The Honorable Samuel S. Stratton, Chaiman Subcommittee on Procurement and Milit.ary Nuclear Systems Comittee on Armed Services
, United States House of Representatives Washington, D.C. 20515
]
Dear Mr. Chaiman:
, I am writing to advise you that the proposed amendments to the Commission's rules in 10 CFR Part 40 for licensing uranium mills and disposal of mill tailings and waste as well as an advance notice of proposed rulemaking on l
further amendments to 10 CFR Part 40 were withdrawn prior to publication in the Federal Register.
Advance copies of the Federal Register notifications were provided to you by
< John Davis, Director, Office of Nuclear Material Safety and Safeguards, on July 31, 1984. Our office will notify you when further action is taken on these rulemakings.
Siocerely,
- I
)/1,t g
ton Kamerer, Director i
- Office of Congressional Affairs
l cc: Rep. Marjorie S. Holt i
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DISTRIBUTION:
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J The Honorable Alan Simpson, Chairman Subcommittee on Nuclear Regulation Committee on Environment and Public Works United States Senate Washington, DC 20510
Dear Mr. Chairman:
I The U.S. Nuclear Regulatory Commission (NRC) is proposing amendments to the
- Commission's rules in 10 CFR Part 40 for licensing uranium mills and disposal
- of mill tailings and waste. The NRC is also issuing an advance notice of
] proposed rulemaking on further amendments to 10 CFR Part 40.
The NRC Authorization Act for FY 1983 (Public Law 97-415, signed January 4, 1983) contained a requirement that the Commission modify its mill tailings regulations i to conform to final Environmental Protection Agency (EPA) standards for these materials. Final standards were signed by the Administrator September 30, 1983 and published on October 7, 1983 (48 FR 95928).
The enclosed proposed amendments and advance notice reflect the two rulemakings the NRC is undertaking to modify its rules to make them consistent with the new EPA standards and satisfy provisions of Section 205 of the Uranium Mill i Tailings Radiation Control Act of 1978, as amended. The proposed amendments '
to Appendix A consist of changes to the existing Commission regulations neces-sary to conform to the new EPA standards and to incorporate within Commission t regulations those provisions of the EPA standards not related to ground water.
l Minor confo'rming amendments to Anpendix A, as necessary to remove inconsis-
! tencias with the ground water protection provisions of EPA's new standards, are included as proposed amendments. The advance notice outlines the NRC's plans
- j for a further rulemaking to consider the incorporation within NRC regulations j of these and other EPA ground water protection requirements issued by the EPA
- pursuant to provisions of the Solid Waste Disposal Act, as amended.
1 4
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! -J2L0r;/c;jWl 2h b yk
= i
-The Henorable Alan Simpson 2 l_
! The enclosed notices are being sent to the Office of the Federal Register for pub 1'. cation. A copy of a public announcement to be released by the NRC or.
this matter is also enclosed.
l
! Sincerely, I-i (sisned) John G. Devia Johr G. Davis, Dire:ur ,
Office of Nuclear Material Safety I Safeguards
Enclosures:
- 1. FR Notice on proposed ameniments
]*
- 2. FR Notice on advance notice !
- of proposed rulemaking j 3. Fublic Announcement c
- : Serator Gary Hart -
i ;
j Identical letters sent to those on the attacted list. !
i
! Ref. En:1. E. SECY 83-523 (changes shown on attached). !
i IDEf61 CAL LETTER SENT 50:
Rep. Ottinger/cc: Rep. Moorhead Rep. Ucall/cc: Rep. L4an Rep. Stratton., Chairmaa ,
Subconnittee on Procurement and Military Nuclear Systems Comittee on Anned Services i
Mil WMU' Mi Mi NHSS 5 hN t
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K0 2tte L 6botham HJ 11 RE Browning D Mausshardt J a4/07/k 84/07/ 8/07/ 84/07/ l'7 84/07/M 8 07/L3
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, R x Lj-] 4 , R &su & WMOM.%7 y_y pR June 16, 1980
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Note to: Ross A. Scarano, Chief mNh V
Uri:nium Recovery Licensing Branch O
,u g, In your memorandum of April 11, 1980 you asked our opini tion of the land ownership requirements of i 83(b)(1)(A}g onAtomic
- of the, the applica-Energy Act (AEA), as amended by the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA). The matter was raised, apparently, by your review of . . .
the Energy Fuels Nuclear submittal of land acquisition documents indicating that acquisitions from private individuals, in the majority of cases, were of surface rights only. The question is whether the statutory requirement -
for transfer of land and interests therein to State or Federal Govarnment ownership is absolute, or subject to some discretion in its application.,
At the outset it should be noted that Energy Fuels Nuclear has already
- received a source material license under Section 62 of the AEA. Accordingly, 1/ 5ec. 83. OnMRSHIP AND CUSTODY OF CERTAIN BYPRODUCT MATERIAL AND .
DISPOSAL SITES.-- -
e , , , ,
(b)(1)(A) The Commission shall require by rule, regulation, or order that prior te the temination of any license which is issued after the effective date of this section, title to the land, including any inter-eststherein(otherthan land owned by the United States or by a State) which is used for the disposal of any byproduct material, as defined by
,: section 11 e. (2), pursuant to such license shall be transferred to-- i the United States, or (i))theStateinwhichsuchlandislocated,attheoption (ii of such State.
unless the Commission detemines prior to such termination that trans-fer of title to such land and such byproduct material is not necessary or desirable to protect the public health, safety, or welf are or to minimize or eliminate danger to life or prcoerty. Such determination shall be made in accordance with section 181 of this Act. Notwith-standing any other provision of law or any such detemination, such property and materials shall be maintained pursuant to a license issued by the Commission pursuant to section 81 in such manner as will protect ,
the public health, safety, and the environment. .
820 5-1-94R ,
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9 g- Ross A. Scarano .
that company is subject to Section 83(b)(4) of the AEA,2_/ not i 83(b)(1)(A),
which applies only to licenses issued after the effective date of Section 83 (November 8, 1981).
In the case of licenses issued before November 81981, the Commission is clearly given discretion to require transfer of "such land and interests therein . . . as may be necessary to protect the public health, safet environment from the effects associated with such byproduct material.{ and The CrMWnn is further required to take into consideragti n tha Miershin ~
status of sucF ian; anc in'a"s*s therein_ and the aM11tv of the license
~
to transf er a tTe and custody thereof to the United states- c- >M. ~
It _is clear fr_ocLthe_ legislat_ive_ record.that i.83(b)(4)_was spec.if.ical.ly fntended to q_iye.di.scretion_to NRC to waive the ownership and transfer requirements JofE3._b eca u s e_of_ti t1 e a n d ow n t e s bifLo b s LLC.l_e s . See 14.
Rept. 95-1480, Part 2, p. 44, and Cong. Record p.H 12959, October 14, 1978.
For licenses issued after November 8,1981, to which i 83(b)(1)(A) applies, the question is more difficult to answer. On its face the statutory 16nguage does not give the same discretion to the Commission as is found in i 83(b)(4).
The language in i 83(b)(1)(A) as enacted first appeared in the version of l H.R. 13550 that was offered as a House amendment to Title II of UMTRCA as it appea red in the Senate version, S-2584 '
See Cong. Rec. p. 11-12965, October 14, 1978.
The successive draf ts of legislation reported out of the House Committees stated the requirement as follows:
- 1. From the Committee on Interior and Insular Affairs (Mr. Udall):
Sec. 83. OWNERSHIP AND CUSTODY OF CERTA!N BYPRODUCT MATERI AL AND DISPOS AL $1TES.--
- a. Any license under section 62 or section 81 for any actis ity which results in the production of any byproduct material as defined in section 11 c. (2) i/ H) in tne case of any such license under section 62, which was in
~
effect on :ne effe;tive date of this section, the Comission may require, before the termination of such license, such transfer of landandintereststherein(asdescribe8inparagraph(1)ofthis subsection) to the United States or a Stato in which such land is located, at the option of such State, as may be necessary to protect the public health, welf are, and the environment from any effects associated with such byproduct rateriel. In exercising the authority of this paragraph, the Commission shall take into consideration the '
status of the ownership of such land and interests therein and the l ability of the licensee to transfer title and custndy thereof to the l United States or a State.
]
A. ___.--_._.-__.s
- g. .., .
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. .Ross A. Scarano .
shall contain such tems and conditions as may be necessary to assure that, prior to temination of such license--
"(1) the license will comply with such require-ments.as the Commission may establish.respecting l
such temination, and ,
"(2) ownership of--
"(A) any byproduct material defined in section 11 e. (2) which resulted from such
,. licensed activity, and
"(B) any land (other than land owned by the United States), including both the surface l and subsurface estates, wnich is.used for the disposal of sucn byproduct material.
shall be transferred to the United States.
Such material and land,shall be transferred to the l United States without cost to the United States l (other than administrative and legal costs incurred l
~
in carrying out such transfer). The United States shall not transfer title to property acquired under this subsection to any other person. (H. Rept.
, 95-1480, Part 1, p. 7, emphasis supplied).
H. Rept. 95-1480, Part I contains no material relevant to answering the question of whether the transfer requirement can be applied on a discretionary basis. On its face the draf t bill provision appeared absolute in requiring both surface and subsurface estates
, to be transferred. -
- 2. From the Committee on Interstate and Foreign Commerce (Mr. Staggers):
"b.(1)Anysuchlicensewhichisissuedafterthe effective date of this section shall also contain such tems and conditions as the Commission detemines to be '
necessary to assure that, prior to temination of such
, license and af ter the licensee has complied with the requirements of subsection a., any land (other than land owned by the United States) which is used for the '
disposal of such byproduct material shall be transferred i to the United States, including both the surface estate ,
and any interest in the subsurface estate which may be necessary to protect the.public health, welfare, and the environment. (H.Rept.95-1480Part2,pp.15-16) l e
4
__n. __.________.________J
.s-6 Ross A. Scarano 4-
- The pertinent part of the section-by-section analysis for this '
draft reads as follows: ,
Subsection (b) requires that licenses issued after the effective date of the new section 83 must include terms and conditions fcr the transfer of land used to dispose of tailings from active operations to the United States.
This kill occ~u r before termination of the license, but after the land has met the requirements of subsection (a).
.. . This transfer will include surface and subsurface' ,.
interests. Similar provision is made for the transfer l' ' .
. of such interest to the United States in the case of a license in effect before the effective date of this -
_4 '-
, section. However, in such case, the NRC has some -
discretion because such licenses (sic) may not own the subsurface or even the surface interests and thus could not transfer the land to the'Onited' States. (H. Rept.
95-1480, Part 2, pp. 43-44)
The legislative record on the enacted version is equally sparse, consisting
- of a single reference in the remarks o,f Congressman Dingell as follows:
The amendment provides for transfer of title of land to a State, at its option, or tne United States, just as the Senate proposed. It includes the clause allowing the NRC not to require such transfer if NRC detemines.that it is_
not necessary to protect Such' deter-mination would tid"~6a'di~fn,healtT,3Ccefe7a.
accordance with section 181 of the 1954 act. s This provision applies to future licenses. In the case of existing licensees, the NRC is given discretion to detemine whether or not such transfer is.. required, .taking intolo,n-sideration the practical pro Wem of who owns the land.
~~~'
(Cong. Rec. p. H12969, October 14,1978)'
The only conclusion that can reasonably be drawn from these materials _is tt tnLqitec November.J5..A81 Tan _j'nabiUty to secure complete AnEfull t[tle tLorivate landsjntended_for a dispo'iar"afe)34y_htrlthe'ustof_those linds for tail 4ngs._ disposal. That is, an InibTlfly to convey an interest is not, I in and of itself, a sufficient ground for the Commission to waive the title transfer requirement as to mills and tailings licensed after November 8, '
1981. If the legislative record illuminates anything it is that a demon-strated inability to convey a real property interest to a State or to the United States serves as a basis for waiving the requirement only as to sites ;
" grandfathered" under 184(b)(4), ,
. 'ee
(.'. .
- Ro'ss A. Scarano t The question must be answered, however, whether the waiver authority in
. i 83(b)(1)(A) may be applied separately to severable intergts in the real property. Land ownership can become a complicated matter.- Unencumbered fee estates may be difficult to assemble in the western states where it is not uncommon for surface rights, mineral rights (including oil and gas), and water rights appurtenant to the land (in particular appropriative right's) to
. be conveyed as separate interests. Added to such fractionated interests may be an overlay of easements and rights-of-way for roads, pipelines, trans-mission lines, etc. Wills and trusts may have created life estates or future interests in the real property. The statute does not distinguish among these various interests in tems of transfer.
An argument can be made based upon i 83(b)(1)(B) that both surface and I subsurface estates (" subsurface" probabl I gas, and ground water rights; " surface" y includes would include at leastgrazing as a minimum mineral, oil, i rights, right to springs or to water in surface water courses; easements, rights of way, etc.) must be conveyed because the section.also gives the r authority to the Commission to pemit use rights to both surface and sub-surface estates with a right of first refusal in the grantor, based essentially, upon the same considerations of public ~ health, safety, and environmental protection that authorize waiver of transfer in i 83(b)(1)(A).
The statutory scheme can be described as total conveyance followed, if appropriate, by a Government controlled use program. Thus, it may be arnued that the Commission has only two routes to follow,_(1) complete and tota)
- transfer followed by a use pemitting_ program, or (2) waiver of trans_fer, with subsecuent regulation of the DrivatelY owned suffRe Anfsubsurf ace estates by licensing. under the second option above, an unanswered issue (and probably unanswerable in tems of UMTRCA) would concern the authority of the Commission to regulate activities, e.g.,_ oil and gas exoloration, ite that could be conducted with no threat to tne intecrity of the disnosil_s throuch the use of techniques that avoided _gitturbing_the_. tail.ings_and
- containment area.. It can be argued that future licensees have been placed on notice that future tailings disposal sites must be suitable not only from the safety and enviremental viewpoints but also as to feasibility of total i conveyance.
On the other hand an argument can also be made that the waiver provision of i 83(b)(1)(A) may be applied selectively to the severable interests in real property on an individual basis. That is, the Commission could waive con-v,eyance of those interests in real property that were not necessary or -
destrable to nentar+ 'ha nuhlic healib gafety, or welfare or to mfnThiZe
- /
l The tem " land" is at best an ambiguous word when used in the context I 3) of real property conveyancing. " Surface" and " subsurface" are only a .
little less vague. The phrase "any interest therein" can, however, be .
viewed as all inclusive of any legal or equitable real property interests.'
e
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- ' 'Ross A. Scarano .
or eliminate dancer to life or property. For example, a rancher might be aT1 owed to retain rights to water from a well located in the disposal area -
that tapped an aquifer not subject to seepage contamination from the tail-ings disposal area, or oil and gas rights might be waived if drilling and extraction could be conducted without damage to the long term integrity of the tailings containment.,
That this approach was contemplated, if not explicitly enacted, is evident in the language of i 83(b)(1) as reported by the Staggers Conunittee.(quoted above) which would have required transfer only of any interest in 'the sut>- 1 surface estate necessary to protect the public health, welfare, and the environment;- 4..
- Q.
It can 'also be noted in favor of this view that the Commission is required to implement the land transfer requirements by rule, regulation, or order, arguably implying discretion in the. scope of application as well as the procedures by which such conveyancing will be accomplished. If no discre-tion were intended the provision for implementatiob by regulation could be viewed as redundant because the provision would be self-executing in its substantive requirements. .The current proposed regulations, however, espe-cially Criterion 11, do not answer the question. Criterion 11 follows the statute practically word for word and therefore does not present a view of what NRC staff might believe to be the' proper answer. -
It is difficult to say which view is the better view legally. Neither the language of the statute nor the skimpy legislative record is overwhelmingly
- in support of one or the other. Accordingly, considerations of policy and administration may be given som,e weight in detemining Which position should be adopted in' implementing the land ownership requirements. It is conceivable that the rigid requirements of the first view could preclude an applicant from selecting a superior disposal site because some aspect of ownership unrelated to health, safety, or environmental concerns, posed an insurmount-able obstacle to conveyancing. The first view could also force a licensee into gambling on an all or nothing waiver, or attempting to justify a waiver .
on health, safety and environmental grounds when acquisition and transfer were'the real problem. l The second view has the virtue of placing the land transfer requirement in the context of necessity for protecting public health, safety, and the environ-ment. It may, however, also save the effect 5f encouraging applicants to be less than diligent in acquiring all interests in the land. Its application a
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9 {. '"77 .
l Ross A. Scarano -
1 would also require a more refined set of regulationgjto establish the standards for waiver than those currently propose -
,b h.'Cundngham Director and Chief Regulations Counsel s
-4/ Your memorandum also asked that we address the question whether the
. requirements differ as to subsurface rights where the land is owned by the United States or a State. Generally, if the United States owns land it owns the entire estate. On a sale or patenting of U.S.
land subsurface rights may or may not also have been conveyed. In other instances subsurface rights may be subject to an outstanding lease or mining claim. A consistent application of 5 83 after November 8,1981, would indicate that any rights in Federal or State land outstanding in private individuals should be acquired in order to transfer an unencumbered title to the Governmental body. However, note must be taken of the fact that a literal reading of 5 83 apppears -
to except land already owned by the United States or a State from any transfer requirements, including interests that may be in other third .'
parties (e.o., grazing rights, oil and gas leases, etc.) on the theory that the Government itself will continue to manage those interests.
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