ML20127A768

Requests Commission Approval to Publish Action Suspending Portions of Commission Rules for Licensing U Mills & Disposal of Mill Tailings & Waste

ML20127A768
Person / Time
Issue date:	07/19/1983
From:	Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
Shared Package
ML20127A611	List: ML20127A606 ML20127A768 ML20127G931 ML20127G953 ML20127H001 ML20127H057 ML20127H087 ML20127H388 ML20127H430 ML20127H459 ML20127H518 ML20127H611
References
FOIA-84-709, TASK-RIA, TASK-SE SECY-83-290, NUDOCS 8307250598
Download: ML20127A768 (31)

Text

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"" 8 RULEMAKING ISSUE! SECY-83-290 (Affirmation)

For: The Commissioners From: William J. Dircks

• Executive Director for Operations

Subject:

URANI.UM MILL TAILINGS REGULATIONS; SUSPENSION OF SELECTED PROVISIONS (SEE SECY-83-172 ON PROPOSED ACTION)

Purpose:

To . request Commission approval to p' u blish an action suspending portions of the Commission's rules for licensing uranium mills and disposal of mill tailings and waste.

Cstecory: This paper involves a minor policy matter.

Discussion: 'The NRC Authorization Act for FY 1983 (Public 1.aw 97-415 signed January 4, 1983) contained a provision requiring NRC review and possible suspension of certain portions of the Commission's uranium mill tailings regulations. Specifically, the. Act amended the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA) to add:

"(2) Following the proposal by the Administrator of standards under subsection b. , the Commission. shall review the October 3 regulations, and, not later than 90 days after the date of such proposal, suspend implementation and enforcement of any provision of s'uch regulations which the Commission determines after notice and opportunity for public comment to require a major action or major commitment by licensees which would be

, unnecessary if--

"(A) the standards proposed by the Administrator are promulgated in final form without modification, and

"(B) the Commission's requirements are modified to conform to such standards.

Contacts: "

Robert Fonner, ELD 492-8692 , ,

Kitty Dragonette, HMSS 427-4160 -

SECY NOTE: Af ter const.titations with EDO staff and OCA, this -

item is being. scheduled for affirmation on short notice.

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, Such suspension shall terminate on the earlier of April 1, 1984 or the date on which the Commissi6n: amends the October 3

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,_ regulations to conform to final standards promulgated by the

--__ :_. Administrator under subsection b. During the period of such suspension, the Commission shall continue to regulate byproduct

.' material (as defined in Section 11.e(2))'under this Act on a licensee-by-licensee basis as the Commission deems necessary t to protect public health, safety, and the environment."

1 The proposed suspension was published in the Federal Recister i for public comment on Thursday, May 26, 1983 (48 FR 23649). See Enclosure B. Eleven comments were received. See Enclosure C.

Summary of Comments and Responses Eleven persons submitted comments on the proposed suspension.

Comments were received from three states (W'y oming, Colorado, and Utah), four industrial groups (Kerr-McGee Corporation, Kerr-McGee Nuclear Corporation, Homestake Mining Co., and United Nuclear Corporation (hereafter referred to as Kerr-McGee et al.), American Mining Congress, Federal American Partners, and Ebasco Services, Inc.), and four public interest groups (Sierra Club, Environmental Policy Institute, Southwest Research and Information Center, and ,

Coalition for Nuclear Power Postponement).

The general thrust of the comments from the states and public interest groups was that the proposed suspension was unnecessary, 3

too comprehensive, or based on erroneous legal bases. Kerr-McGee et al. and the American Mining Congress generally favored suspend-ing more of Appendix A. - -

The issues raised by the commenters are discussed in the proposed r notice in Enclosure A and are grouped into the following general l areas: (1) comments on the Commission's approach as presented in the proposed notice published for comment, (2) specific suspension l

, items, (3) views on the Commissi.on's rules in Appendix A and the j proposed EPA standard, and (4) other issues.

i The principal conclusions reached in analyzing the comments are that the proposed approach is valid and legal, that the nature

,j_ of the suspending action is misunderstood in some cases, and that

' only minor changes from the proposed action'are warranted in light of comments received. Specifically, the staff recon 1 ends that only the proposed action on two requirements of Criterion 6 should be changed. The fourth sentence,. prohibiting licensees

- e from taking credit for thin synthetic layers to reduce radon flux, should not be suspended as proposed. The general require-ment in the fifth sentence to evaluate long-term performance of cover materials should be retained but with minor phrases suspended.

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' The Commissioners 3 t R commendations: That the Commission:

1. Approve publication of the suspension of portions of Appendix A to 10 CFR Part 40 as set forth in the draft Federal Register j Notice in Enclosure A. ,

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.- 2. Note:

a. That in view of the fact that the suspension is not a

rule change and is suspending rather than adding or

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removing regulatory requirements, no Regulatory Analysis

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is needed or was done.

b. That in view of the staff conclusion that the suspension itself is of a temporary procedural nature and involves ~

j no significant environmental impacts, no envi-ronmental impact statement or assessment is needed or was prepared.

c. That the requirements of the Regulatory Flexibility Act (PL 96-354) do not apply to the proposed suspension.

However, the suspension will not have a significant economic impact on a substantial number of small entities.

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d. That the Subcommittee on Nuclear Regulation of the Senate Committee on Environment and Public. Works, the Subcom-mittee on Energy and the Environment of the House Committee on Interior and Insular Affairs, the Subcommittee on Energy and Power of the House Committee on Interstate .

and Foreign Commerce, and the Subcommittee on Environment, Energy and Natural Resources of the House Committee on Government Operations will be informed by a letter similar to Enclosure D.

e. That Rep. Samuel Stratton, Chairman of the House

! Procurement and Military Nuclear Systems Subcommittee, will also be informed by a letter similar to Enclosure D.

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f. That in view of the suspending and administrative nature od the action and since no changes to informa-

, tion collection requirements are involved, no review by

3. i . the Office of Management and Budget is required. -

g. That a Public Announcement such as Enclosure E will be issued on filing of the notice of proposed action with the Office of the Federal Register.

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, h. That copies of the notice will be distributed to all Commission uranium mill licensees and copies will be provided to all Agreement States for distribution to th'eir uranium mill licensees. Copies will also be distributed to the commenters.

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The Commissioners . 4 Scheduling: '

The Congressionally mandated 90-day limit for f.inal action on this matter dictates prompt Commission actio'ri The notice of action must be delivered to the Federal Register by July 28, 1983.

To meet the July 28, 1983 date, Commission approval of the enclosed notice is needed no later than July 26, 1983.:

Willi J. Dircks u Executive Director for Operations

Enclosures:

-L A - Federal Register Notice of Final Suspension B - Proposed Suspension C - Public Comments D - Draft Congressional Letter E - Draft Public Announcement commissioners' comments or consent should be provided directly to the Office of the Secretary ASAP.

Commission Staff Office comments, if any, should submitted to the Commissioners ASAP, with an information copy to the Office of the. Secretary.

This paper is tentatively scheduled ~for affiramtion at an Open

~ Meeting during the Week of July 25, 1983. Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time.

DISTRIBUTION:

Commissioners OGC OPE OCA

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.OPA REGIONAL OFFICES EDO ELD ACRS , -

SECY

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. ;ll;a,;mtaac The Honorable Nunzio Palladino Chairman United States Nuclear Regulatory Commission Washington, D. C. 20555

Dear Mr. Chairman:

I am writing to express my concern regarding the status of the implementation and enforcement of the Commission's Uranium Hill Licensing Requirements. The Nuclear Regulatory Commission Authorization Act of 1982 authorizes the Commission to implement and enforce these requirements beginning January 1, 1983.

(Sec. 18 (a) (4)) . The Commission is also required to review these' requirements for possible suspension of those which may conflict with standards for licensing of active tailings sites following proposal of such standards by the Environmental Protection Agency (EPA). The EPA having to date failed to propose such standards, the Commission's authority to implement and enforce its requir.ements is effective.

Discussion of tailings regulation at a recent commission meeting indicates that the Commission staff perceives a possible barrier to implementation of the regulations resulting from language in

- the continuing Resolution (Public Law 97-377) which could be interpreted to prohibit the Commission from using appropriated funds to implement its' mill licensing requirements during fiscal year 1983. There is no evidence in the statute, nor is there legislative history, specifically indicating this as the intent of the Congress. The Congressional action taken in the context

- of the FY-83 NRC authorization followed passage of the Continuing

- Resolution and should clarify and supersede any ambiguity on that -

point. If questions remain regarding the Commission's authority to spend' funds on implementation of these requirements, the Continuing Resolution provides a notification procedure through which the Commission may assure that the requirements of the f Continuing Resolution have been adhered to prior to expenditure i

. of these funds.

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~ Please provide me with an explanation regarding the status.of implementation of these requirements. .

Sincerely,

IS K. UDALL 2

Chairman

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l The Honorable Nunzio Palladino Chairman United States Nuclear Regulatory Commission Washington, D.C. 20555

Dear Mr. Chairman:

It has been brought to my attention that the staff comments to the Commission on proposed EPA standards for uranium and thorium mill tailings (SECY-83-195) misrepresent certain communications in the legislative history for recent amendments to the Uranium Mill Tailings Control Act (UMTRCA)

(P.L.97-415). I wish to clarify the legislative history of those amendments, as it may affect pending Commission decisions regarding implementation of that Act.

The specific misrepresentation occurs on page 5 of enclosure B of the staff report, where it is stated that:

"The legislative record for the NRC Authorization Act, P.L.97-415, also indicates t that a risk-based approach to standards and regulations was contemplated by the Congress.

For example, the exchange of letters between Senator-Domenici and Congressman Udall ... expressly states that both EPA and NRC must consider significant risks to public health and economic and environmental costs in issuing standards."

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The relevant material in the Congressional Record is attached to the NRC staff report.

My letter to Senator Domenici rejects the contents of his letter as a representation of the intent of the Congress in

. enactment of the mi'll tailings amendment. It states: "I

.believe the conferees intend that the statement of managers

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in the conference report, read together with the statutory language in section 22, be controlling for purposes of interpreting the provision."

I would like to reiterate that I believe the statutory and statement of managers language to be adequate to: represent

. the intent of Congress with respect to mill tailing ~s regulation. There is no justification or necessity for

! analysis of statements in the Congressional Record unless these fundamental Congressional actions are unclear. Many submissions to the Congressional Record on this issue conflict, in my opinion, with the agreements on these issues reached and ratified by both Houses of ' Congress and enacted into law. I would again direct you to these legislated agreements for an understanding of the intent of Congress.

You will not find in either the statute or the statement of managers any directive or suggestion that the Commission should take a primarily risk-based approach to standards and regulations. According to the statement of managers, "the conferees have agreed to include specific references in the appropriate sections of the Atomic Energy Act directing the EPA and the NRC, in promulgating such standards or regulations, to consider the risk to the public health, safety and the environment, the environmental and economic costs of such standards of (sic) regulations, and such other factors as EPA or NRC, respectively, determine to be appropriate ... . The conferees note that this language reflects accurately the cu'rrent regulatory approach of the agencies ... (T)he conferees intend neither to divert EPA i

and NRC from their principal focus on protecting public health and safety nor to require that the agencies engage in cost-benefit analysis or optimization." .

In its amendments to the UMTRCA and in advising the Commission to use its "best independent technical judgment,"

the Congress clearly did not direct the Commission toward any " risk-based" or other particular regulatory analysis, and in fact Congress stated repeatedly in the statement of managers that the current regulatory approach was satisfactory.

l It is my view that the Commission's regulatory approach has been during the past several years appropriately stringent and in keeping with the original intent of the Tailings Act that these hatards be so controlled as to require no long-term institutional care after'they are, decommissioned.

I would appreciate your consideration of these comments in your future deliberations on UMTRCA regulatory action, ncerely, ORRIS K. UDALL

. Chairman

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