ML20132C327
| ML20132C327 | |
| Person / Time | |
|---|---|
| Issue date: | 07/26/1984 |
| From: | Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | Palladino NRC COMMISSION (OCM) |
| Shared Package | |
| ML20132C331 | List: |
| References | |
| FOIA-84-709, FOIA-84-A-72 NUDOCS 8408060398 | |
| Download: ML20132C327 (17) | |
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\\7.0V JUL 2 61984 MEMORANDUM FOR:
Chairman Palladino Comissioner Roberts Comissioner Asselstine Comissioner Bernthal Comissioner Zech FROM:
William J. Dircks Executive Director for Operations
SUBJECT:
REVISED DRAFT INTERAGENCY PROGRAMMATIC AGREEMENT WITH EPA ON MILL TAILINGS AND LOW-LEVEL WASTE REGULATION Enclosed for your information is the revised (7/25/84) draft of the proposed Programmatic Agreement with the Environmental Protection Agency (EPA) on the regulation of mill tailings and low-level waste, and a letter transmitting the proposed draft Agreement to EPA Assistant Administrators.
The revisions to the enclosed draft Agreement are consistent with the discussion of the "NRC/ EPA MOU on Mill Tailings" that appeared in the Daily Staff Notes - July 20, 1984.
N Willia..
. Dircks Executive Director for Operations
Enclosures:
1.
Letters to Messrs. Cannon and Thomas, dtd 7/25/84 2.
Draft Prograrr.atic Agreement dts!7/23/84 cc: H!litCY~
OPE OGC
Contact:
T Janet Lambert, NMSS
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Mr. Joseph Cannon Assistant Administrator for Air and Radiation Mr. Lee Thomas Assistant Administrator for Solid Waste and Emergency Response U.S. Environmental Protection Agency 401 M Street, S.W.
Washington, D.C.
20460
Dear Messrs. Cannon and Thomas:
Reference is made to my letter of June 21, 1984, to Mr. Cannon which enclosed a draft Interagency Programatic Agreement concerning uranium mill tailings disposal sites.
With this letter I am sending a redraft which includes new provisions on:
(1) similar problems concerning low-level radioactive waste (LLW) management and RCRA and (2) language which comits both the NRC and EPA to join in seeking legisla.t.ive. rel.ie.f if the provisions.in the.
Agreement cannot be satisfactorily achieved or if the Agreement does not serve to resolve the problems relating to the application of RCRA at low-level and mill tailings disposal sites.
The information in Section III of the enclosed draft Acreement related to low-level waste disposal largely incorporates a draft IPA /NRC Low-level Waste disposal MOU previously discussed by our staffs.
We have made only minor modificaticns to.the draft LLW MOU provisions with the exception of adding one new provision relating to development of a data base characterizing hazardous waste components of mixed waste at LLW sites per our April 13, 1984 discussions with you (See Provision 6).
The introductory portion of the draft LLW MOU was used to expand the scope of the introduction to the Programatic Agreement.
Provision 4 of the mill tailings portion of~the Agreement which addresses alternate concentration limit (ACL) determinations, has been changed. The provision now states that NRC will make case by case determinations on ACL's, keeping EPA informed, until a methodology is developed which "could be concurred in by both agencies".
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. ! believe this draft Agreement represents positions on the application of RCRA to mill tailings and low-level waste disposal which will allow EPA and NRC to carry out their' respective. mandates to regulate the protection of the publi.c health and safety and the environment in a reasonable and cooperatise manner.
Since resolution of this matter is important to bot'h of our agencies, I would appreciate your agency's written response as soon as possible.
Sincerely, John G. Davis, Director Office of Nuclear Material Safety and Safeguards
Enclosure:
As Stated e
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Interagency Programatic Agreement Between the U.S. Nuclear Regulatory Comission and the Environmental Protection Agency on Uranium Mill Tailings and Low Level Radioactive Waste Regulations i
- 1. INTRODUCTION The U.S. Nuclear Regulatory Comission (NRC) and the U.S. Environmental Protection Agency (EPA) believe it is appropriate to pursue a programmatic agreement to define interagency procedures associated with the regulation of mill tailings disposal pursuant to. sections.84.and 275..cf.the Atomic Energy I
Act, as amended (AEA) and low level radioactive wastes in relation to the Resource Conservation and Recovery Act (RCRA) of 1976, as amended.
Both the Environmental Protection Agency (EPA) and the Nuclear Regulatory Comission (NRC) have responsibility for protecting public health and the environment frem the hazards associated with the disposal of non-defense radioactive wastes and uranium mill tailings.
The NRC regulates source, specia.1 <iuclear, and byproduct material and waste containing these materials undertheAtemicEnergyAct(AEA)of1994,asamended.
The EPA is responsible for regulating the disposal of hazardous and toxic wastes which could include
certain naturally occurring or accelerator-generated produced radioactive material (NARM), under RCRA.
Section 1004(27) of RCRA exempts " source, special nuclear, or byproduct
, material as defined by the Atomic Energy Act of 1954 as amended.
(68 Stat.
923)."
Furthermore, Section 1006(a) of RCRA,, specifies that "Nothing in this Act shall be construed to apply to (or authorize any state, interstate, or local authority to regulate) any activity or substance which is subject to the
... Atomic Energy Act of 1954 (42 U.S.C. 2011 and following) except to the extent that such application (or regulation) is not inconsistent with the requirements of such Acts."
In general, the AEA and RCRA leave the specifics of regulation of hazardous and. radica.ctive. matecia.1 to the_ discretien of NRC and EPA.
In the case of uranium mill tailings, Section 275 of the AEA requires EPA to promulgate standards for the regulation of the radioactive hazards associated with, mill tailings as well as hazards frem substances regulated under the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA).
EPA promulgated its standards on September 30, 1983 (40 CFR Part 192).
Section 44 of the AEA requires the Administrator's concurrence in general requirements established by the Comission for the management cf non-radioactive hazardous constituents.
NRC must revise its regulations in 4
order to conform them to the EPA standards.
The EPA standards incorporate by reference certain groundwater protection provisions found in 40 CFR Part 264.
To meet the UMTRCA mandate, NRC must implement these groundwater provisions through its conformed regulations.
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Both the NRC and the NRC Agreement States are legally. obligated under Section 275d of the AEA to implement and enforce the EPA standards for mill tailings in i
40 CFR 192, Subparts D and E.
Since the effective date specified in the EPA standard was December 6, 1983, the Commission believes that the legal j
obligation for NRC and the Agreement States includes enforcement in the interim while conforming and implementing rule changes are made.
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l Another area of potential jurisdictional overlap and dual regulation between NRC and EPA is the regulation of disposal of low-level radioactive waste i
containing both (a) byproduct, source, and/or special nuclear material and (b) chemically hazardous and toxic substances.
l The purpose of this Programmatic Agreement is to reduce overlaps, inconsistencies, ambiguities, and dual regulation, and to clarify EPA's and NRC's responsibilities under their respective authorities for both uranium mill tailings and low-level radioactive wastes.
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.a-4 II. URANIUM MILL TAILINGS The Programatic Agreement for uranium mill tailings is based on the following premises:
i 1.
There should be a single comprehensive set of regulations governing the protection of groundwater from contamination by uranium mill tailings, issued by NRC in consultation with the EPA.
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2.
There should be a single regulatory agency contact for applicants and 1
licensees. That agency should be. the.URC. or apprcpria.te. agency in an NRC
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Agreement State with authority to regulate uranium mill tailings.
i 3.
There should be established a framework for EPA to fulfill its statutory responsibility under Section 84a(3) of the AEA for concurrence in NRC
. general requirements for groundwater protection for nonradioactive hazardous materials.
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i Agreements on Uranium Mill Tailines 1.
The NRC will insure through its comprehensive regulations that the j
management of any byproduct material relating,to mill tailings disposal is I
carried out in a manner that conforms with applicable general standards I
promulgated by the Administrator of the EPA under section 275 of the AEA, and with general requirements established by the NRC, with the concurrence of the EPA Administrator, which are, to the maximum extent practicable, at least comparable to requirements applicable to the possession, transfer, and disposal of similar hazardous material regulated by the Administrator under the Solid Waste Disposal Act, as amended.
NRC may approach i
rulemaking in steps to reach a final. rule.that accomplishes.all its t
j congressional mandates.
Pursuant to Section 84a(3) of the AEA, NRC will submit its general requirements for groundwater protection for l-nonradiological hazardous materials to EPA, prior to codification in a i
final rule or to programmatic implementation, for its concurrence.
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2.
An interim groundwater monitoring and data collection program is, needed i
e for existing impoundments of existing licensees while NRC develops and p.romulgates final comprehensive regulations as discussed in paragraph (1).
NRC and EPA agree to the use of present programs in place at every site to the maximum extent possible for this purpose.
This approach is i
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consistent with the approach EPA has taken with hazardous waste disposers under the interim status standards in 40 CFR Part 265.
NRC will evaluate monitoring programs by existing licensees for sample collection, sample analysis, well placement, etc., and will require that the monitoring programs are upgraded as necessary to assure that when NRC final rules are in place, an adequate basis will exist for developing and implementing any needed corrective action programs.
In the interim, until NRC rules are in place, NRC will require that mitigative actions continue to be taken on a case-by-case basis, as necessary.
Interim corrective actions will be required of a licensee if it is determined by NRC that there are significant health, safetyr.or.envircr. mental-problems resulting.
from existing practices.
3.
EPA agrees to participate with NRC during this interim period in the development of a data base for hazardous constituents at mill tailings
. sites for the purpose of developing final NRC regulations.
EPA agrees to furnish NRC its available case-by-case decisions en alternate concentration levels (ACLs) and to provide technical consultation and services.
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4.
Pursuant to Section 84c of the AEA, NRC will make case specific determinations of alternate concentration limits (ACLs).
The NRC will carry out these determinations on a case-by-case basis, keeping EPA informed, until a methodology is developed whi,c.) could be concurred in by both agencies.
I 5.
Section 84c of'the AEA allows applicants for NRC licenses to submit licensing alternatives to NRC for review and approval.
NRC and EPA recognize that the flexibility afforded by Section 84c is an important aspect of the licensing and regulatory processes.
l 6.
Agreement State implementation of EPA standards and development of state regulations compatible with NRC final rules may take place pursuant to this programmatic agreement.
(Note, however, that Section 274o gives 1
states flexibility in this area.)
III.
LOW-LEVEL RADIOACTIVE WASTES so clartfy their respective responsibilities, to avoid unnecessary duplication, and to promote appropriate cooperation for low-level radioactive waste management, the NRC and EPA agree:
1 S-1.
The NRC has responsibility for regulating the disposal of low-level radioactive wastes generated in licensed activities, including low-level radioactive wastes containing toxic or hazardous substances.
Low-level waste is defined as radioactive material that,
(A) is not high-level radioactive waste, spent n,uclear fuel, transuranic waste, or byproduct material as defined in Section 11e(2) of the Atomic Energy Act of 1954(42U.S.C.2014(e)(2);and (B) is classified by the Comr.ission, consistent with existing law, as low-level radioactive waste.
The NRC is not authorized to license any disposal of hazardous wastes that do not contain source, special nuclear or byproduct material.
These wasteiremainsubjecttoRCRAorotherauthoritiesasapplicableif disposal is at a hazardous waste site.
2.
Except as provided in paragraph 3 below, EPA shall not exercise,its regulatory authority with respect to management and disposal of waste cor.taining byproduct, source, or special nuclear material, whether or not mixed with nonradioactive hazardous substances when the radioactive content indicates a need for special handling for radiation protection.
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i NRC's regulatory program for the management and disposal of byproduct, l*
source, or special nuclear material wastes containing non-radioactive i
i hazardous waste shall b*e carried out in such a manner that the public will i
be protected from the nonradioactive hazardous, properties of the waste.
The level of protection to the public from the nonradioactive ha:ardous l
properties shall be consistent with the 1,evel of. protection required by i
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EPA's RCRA regulations, but need not be identical in each and every respect.
The disposal of wastes packaged and shipped in accordance with
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the requirements of 10 CFR Parts 20 and 71 and disposed at a facility j
licensed in accordance with the requirements of 10 CFR Part 61, shall be deemed to be consistent with EPA's RCRA requirements.
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In case of other waste disposal approved by the Commission under the j
provisions of Section 20.302 of 10 CFR Part 20, NRC may request EPA to review proposed disposal applications to determine if the proposed procedures for disposal of nonradioactive hazardous properties are j.'
consistent with the level of protection required by RCRA, if in NRC's t
judgement the level of protection may not be adequate.
l 4.
The, EPA shall not require RCRA permits for the generation, storage, management, transportation, and disposal of wastes containing source, i
special nuclear, and byproduct material when such activities are subject i
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to licensing and regulation by NRC.
When NRC decides for any reason to amend its regulations to deregulate a specific waste because its radioactive hazard falls below a threshold of public health and safety concerns, EPA may require the NRC licensee to, comply with all RCRA regulations for the generation, storage, management, transportation, and disposal of this waste with respect to its other. chemical or toxic properties.
Before deciding not to regulate a specific waste, NRC will continue to provide notice of its proposed action to EPA and the public.
5.
NRC will not knowingly authorize the willful or deliberate contamination of any waste (not otherwise so contaminated) with source, special nuclear, or byproduct material for the solt.and.. exclusive. purpose of. evading EPA's authority and regulation under RCRA.
Each agency shall provide to the enforcement staff of the other any information that indicates the possible use of source, special nuclear, or byproduct material for the deliberate and willful evasion of EPA's RCRA authority.
This agreement shall not limit the beneficial use of hazardous substances by NRC licensees, nor limit the processing, solidification, and disposal of wastes containing source, special nuclear, and byproduct" material.
6.
NRC will develop a data base characterizing the hazardous waste component of mixed waste at low-level radioactive waste disposal sites.
This data 9
base will be used to detemine what changes are necessary, if any, to 10 CFR Part 61 regulation for low-level radioactive waste disposal to ensure RCRA considerations are adequately addre'ssed by the NRC regulations.
7.
As requested, the EPA shall provide technical assistance to NRC in assessing the environmental impacts of nonradioactive hazardous constituents in wastes whose disposal is licensed by NRC.
Assistance shall also be provided fomally through the National Environmental Policy Act (NEPA) process as required by Section 309 of the Clean Air Act, as amended.
Additional assistance on an infomal basis may be provided by EPA upon request by NRC as the agencies may mutually agree.
Such additional assistance may be provided..when staf.f, budget., and.cther.
priorities pemit.
8.
This agreement shall not affect EPA's responsibility for regulating radioactive. wastes that are not regulated by NRC.
9.
EPA agrees to assist NRC in coordinating activities with Agreement States, under Section 274 of the AEA, with respect to nonradioactive hazardous materials mixed with source, byproduct, or spe:ial nuclear material.
Since the Agreement States' programs must be compatible with NRC's program, the Agreement States will be subject to the same exemptions from
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RCRA regula:icns as NRC for source, byproduct and special nuclear materials.
In accordance with provision 2 of this section, EPA shall not exercise regulatory authority with respect to the management and disposal of waste containing byproduct, source or speci,al nuclear material whether or not it is mixed with nonradioactive hazardous substances in Agreement States.
In accordance with provision 4 of this section, EPA shall not require RCRA permits for the generation, storage, management, transportation, and disposal of wastes containing byproduct, source or special nuclear material whether or not mixed with hazardous nonradioactive substances when such activities are licensed.cc regulated by Agreement States d
In the case of disposals of waste approved by Agreement States under circu$stancessimilartothatinprovision3ofthissectiontheNRCshall encourage Agreement States to consult with EPA on the same basis as
. established for NRC consultation.
10.
Nothing in this Section on low-level radioactive wastes shall be construed or. interpreted to affect the responsibility and authority of EPA under any law or EPA implementation of any law except the Resource Conservation and Recovery Act.
This agreement shall not be construed or interpreted to I
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allow any supervision or enforcement authority over the licensees of NRC or Agreement States except as permitted by law.
IV.
EPA /NRC MANAGEMENT MEETINGS 1.
NRC and EPA agree that appropriate senior management from each agency (Assistant Administrator-EPA / Office Director-NRC) should meet quarterly to coordinate activities of mutual concern and to assess the status and progress of uranium mill tailings and low-level radioactive waste management as laid out in this. agreemeat..
2.
At least until the conclusion of the NRC conforming rulemaking for uranium mill Eailings, the Commission Chairman and EPA Administrator agree to meet at least annually to approve coordinated regulation plans and discuss any
. issues from implementation of any of the matters agreed to under the i
programmatic agreement, O
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V.
CONTINGENCY LEGISLATIVE INITIATIVE NRC and EPA agree that in the event that the provisions in the above* agreements for uranium mill tailings and low-level radioactive, waste cannot be satisfactorily implemented, both agencies will together request legislative clarification through amendments to the AEA.
For the United States Environmental Protect.icn. Agency.
1984 e
t For the United States Nuclear Regulatory Comission e
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1984 e
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