ML20132E284

Responds to Describing Recent Discussions W/Nrc Staff Re Elimination of Dual Regulation at U Mill Sites in Utah

ML20132E284
Person / Time
Issue date:	12/13/1996
From:	Shirley Ann Jackson, The Chairman NRC COMMISSION (OCM)
To:	Nielson D UTAH, STATE OF
Shared Package
ML20132E288	List: ML20132E284 ML20132G801 ML20132G816
References
NUDOCS 9612230208
Download: ML20132E284 (31)

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UNITED STATES NUCLEAR REGULATORY COMMISSION y

,je WASHINGTON, D.C. 20555 4001 Distribution:

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1. December 13, 1996 JMilhoan HThompson

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CHAIRMAN CPaperiello, NMSS MFliegel, NMSS ,

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KCyr, 0GC GT96727 ED0 r/f Dr. Dianne R. Nielson, Executive Director Department of Environmental Quality State of Utah 168 North 1950 West t Post Office Box 144810 )

Salt Lake City, Utah 84114-4810  ;

Dear Dr. Nielson- '

i I am responding to your September 16, 1996 letter describing recent discussions with the Nuclear Regulatory Commission staff regarding the j elimination of dual regulation at uranium mill sites in Utah. The Commission appreciates your interest in simplifying the regulatory oversight of uranium mill and tailings facilities in Utah and in reconciling regulatory differences between the NRC and applicable Utah ground and surface water quality regulations. In retrospect, there seems to have been considerable misunderstanding on the part of both the NRC staff and the State of Utah. I have enclosed specific responses to the six areas of concern that you i identified in your letter (Enclosure 1). Nevertheless, I believe it is  !

important to clarify why NRC was not able to undertake all the actions the State of Utah believed were necessary for eliminating dual regulation and to suggest alternative approaches in addressing the concerns you have raised.

l As you are aware, the standards contained in NRC regulations conform to standards promulgated by the Environmental Protection Agency (EPA). Judicial reviews by a Federal Court found that the EPA standards met the Federal legislative mandate for protection of groundwater [American Minina Conaress v.

Thomas, 772 F.2nd 640 (10th Cir. 1985); American Minina Conaress v. NRC, 902 F.2nd 781 (10th Cir. 1990)]. Because NRC's requirements conform to the EPA standards, the NRC requirements also meet the Federal legislative mandate and, therefore, provide adequate protection of public health and safety within the meaning of the Atomic Energy Act.

During the past year of interactions, it became apparent that the State of -

Utah wanted the NRC to impose State of Utah requirements on NRC licensees. Ar the NRC staff noted in the meetings between the State of Utah and the NRC, there are many a pects of the State of Utah requirements, such as surface yJ water standards, where the NRC does not have statutory responsibility. In lJ e 1 i i

addition, there are many other areas of groundwater protection where the NRC may not need to implement requirements as restrictive as those imposed by the i State of Utah to provide adequate protection of public health and safety.

Although the NRC was willing to consider implementing some of the State of }

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2 Utah requests, it could do so only if it believed that taking the action was necessary to protect the public health and safety, and it could provide a sound technical and regulatory basis for such action.

One example of the difficulties encountered in trying to resolve the problems is the different approach that NRC and the State of Utah take to contaminated ,

groundwater. In implementing its regulatory program, NRC takes into account i the ultimate use of contaminated groundwater. In some cases, groundwater may not be drinking-water quality, and as such, NRC may exercise regulatory discretion regarding what cleanup actions licensees need to take to meet the regulations. The State of Utah, on the other hand, views all groundwater as potential drinking-water, and occasionally may require regulatory actions that go beyond NRC regulations. This different view of the ultimate use or

groundwater is one of the major differences between NRC and State of Utah programs. The agreement being advocated by the State of Utah would have NRC implement all the State of Utah requirements. This approach would require NRC to revise its groundwater program, including changes to the NRC regulations.

Because the present NRC program provides adequate protection of public health and safety, the staff informed the State of Utah that NRC did not plan to undertake any regulatory actions beyond those currently in the Federal program. NRC encouraged the State of Utah to review the requirements being implemented as part of the Federal program to see if the State could accept this program.

l Nevertheless, there are alternative ways that we can work together to  !

eliminate dual regulation. For example, the State of Utah could consider becoming an Agreement State for uranium recovery facilities. This would allow the State of Utah to implement the NRC program as well as any additional State authorized requirements it believed were necessary to regulate groundwater quality. We also have signed Memoranda of Understanding (MOUs) with several States to facilitate interactions. Enclosure 2, for your consideration, is an M00 between hra, and the Utah Department of Environmental Quality (DEQ) that we have drafted that would eliminate dual regulation in Utah. If you would like to pursue this approach, the NRC would be pleased to work with you to implement such an M00. Another approach to help reduce dual regulation would have Utah licensees voluntarily commit to report on actions or standards satisfying Utah. The NRC could include those voluntary commitments to report in the license. The response to item 6 of your letter (see enclosure 1) discusses some of the considerations NRC uses to determine the appropriateness of including a commitment in the license. In order to include voluntary commitments, the license condition would have to be worded carefully to ensure that NRC would not enforce commitments that go beyond NRC regulatory authority. There also may be an additional issue relating to State reimbursement for NRC implementation of Utah requirements depending on the extent of our involvement relating to the reporting requirements and need for any direct NRC licensing review assistance. Under current Commission policy relating to fees and technical assistance to Agreement States, direct licensing review assistance would be subject to State reimbursement. The NRC staff could work with your staff if you want to pursue this approach.

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11 closing, I want to assure you that the NRC is committed to working with the State of Utah to resolve these issues. I hope I have clarified NRC's position l on these matters and that you will consider one or more of the alternatives j that I have proposed. If you have further questions, please contact me.

Sincerely,  !

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Shirley Ann Jackson  !

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Enclosures:

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1. Response to State of Utah, dated 9/16/96

2. Memorandum of Understanding cc: Don Ostler, UDWQ Larry Mize, UDWQ Bill Sinclair, UDRC Peter Heaney, Grand County Council 1

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U.S. NUCLEAR REGULATORY COMMISSION RESPONSE TO STATE OF UTAH CONCERNS IN SEPTEMBER 16, 1996, LETTER TO CHAIRMAN SHIRLEY JACKSON Item 1: Narrow Definition of " Hazardous Constituent": Contaminant Detectability There are actually two issues identified under this item.

1.a) NRC Criterion 5B(2) unduly restricts the definition of a " hazardous constituent."

Response

l l The definition comes directly from U.S. Environmental Protection Agency (EPA)  :

standards in 40 CFR Part 192. j 1.b) The determination of whether a constituent meets the definition of l

" hazardous constituent" is made only once, early in a facility's life.

Consequently, slow moving constituents, that may contaminate groundwater after the initial determination of " hazardous constituents," are not monitored and could, therefore, be unregulated.

Response

All branium mills with contaminated groundwater are currently under a corrective action program (CAP). These CAPS require that licensees monitor i the groundwater for constituents that were identified as " hazardous I' constituents" when the programs were developed in the late 1980s and early 1990s. Requiring routine monitoring of constituents that were not identified as " hazardous const'tuents" when the CAPS were accepted is not necessary because the CAPS that are currently in place work to reduce groundwater i contamination for all constituents that are present, not just those being  !

monitored. Moreover, before terminating the license for a uranium mill site, the NRC staff will require licensees to demonstrate that all constituents >

found in the tailings are within standards in the groundwater. 1 Item 2: Missing Non-radiologic Contaminants in Criterion 13  !

NRC Criterion 13 does not include several non-radiological contaminants, including ammonia, copper, fluoride, manganese, nitrate, pH, total dissolved i solids (TDS), vanadium, and zinc, which are regulated by the Utah Ground Water  ;

Quality Protection Regulations. .

Response

The NRC has the ability to regulate other constituents beyond those listed in  ;

Criterion 13. At the time NRC reviewed the groundwater CAPS, the staff  !

concluded that there was no need to go beyond the list of constituents found in Criterion 13 and in the tailings liquid for most sites. To date, NRC does not have any reason to revisit those earlier decisions. However, as changes l

I Enclosure 1

.- : l are made to CAPS, or final monitoring is done at the time of license termination, the staff will consider, based on a sound technical and regulatory basis, what, if any, additional constituents should be included.

1 It should be noted that the State of Utah equates the elimination of dual regulation with its proposal to have NRC assume all responsibility for ,

groundwater protection at uranium mills. During the June 1996 meeting, the  !

staff tried to explain that concurrent jurisdiction is an area where both NRC ]

and the State of Utah share regulation of the same nonradiological constituents. For those constituents regulated solely by the State of Utah, and not in NRC regulations or license conditions, there are no concurrent jurisdictional issues. The State of Utah is the sole regulatory authority.

This is the case for constituents that are in the State of Utah standards, but are not in NRC regulations. The State of Utah proposal would do more than  :

eliminate dual regulation. It also would shift the regulation of State of I Utah groundwater standards to NRC, and remove the State of Utah from any review or enforcement of its own standards.

Item 3: Inclusion of Mill Site Facilities in Groundwater Monitoring, Characterization, and Corrective Action The NRC does not have any standards for cleanup of groundwater contamination from sources other than the tailings.

Response

The Commission has established standards for the cleanup of groundwater contamination fr'.,m byproduct material in the tailings impoundment. However, these standard., are not applicable to the cleanup of groundwater contamination  ;

solely from other activities within the mill site, such as ore storage or l yellowcake storage. Groundwater contamination resulting from sources other than the tailings impoundment can be addressed through 10 CFR Part 40, Appendix A, Criterion 5F. Under Criterion 5F, uranium mill licensees would be required to address seepage of contaminants into the groundwater from sources other than byproduct material. Further, Criterion SF specifies that the cleanup standards for this contamination would be determined on a site-specific basis. The staff informed the State of Utah that it would use the standards in Criterion 5B to help ensure that all groundwater would be cleaned up to comparable standards. The staff has not identified any mill site where there is groundwater contamination that cannot be attributed to the tailings impoundment. Therefore, the staff currently is applying the standards in Criterion 5B to all groundwater cleanup.

Item 4: NRC Lack of Surface Water Quality Standards for Mill Tailings The NRC does not have standards for the regulation of surface water.

Response

Although the NRC does not have standards for the regulation of surface water potentially contaminated by leakage from the facility, NRC groundwater standards provide protection of surface water. Each constituent must meet one of three standards at the point of compliance in the groundwater:

1) background concentration; 2) the maximum concentration level established by EPA and identified in Criterion SC; or 3) an alternate concentration limit 2

(ACL) established by NR0. If either one of the first two standards is met in the groundwater for a constituent, surface water will be protected. To establish an ACL for a constituent, NRC must consider nine factors relating to potential adverse effects on groundwater quality and nine factors relating to potential adverse effects on hydraulically connected surface water quality.

Therefore, although it is technically correct to state that NRC does not have surface water standards, the regulatory framework in Criterion 5 is protective of surface water. Nevertheless, it should be noted that because NRC does not have standards for surface water, there is no concurrent jurisdiction in this area, and thus no dual regulation. The State of Utah is the sole regulator.

j Planned discharges to surface waters are regulated under 10 CFR Part 20 for i radiological hazards, but the NRC does not have the authority to regulate the

chemical hazards of planned discharges to surface water. The State of Utah, through its National Pollutant Discharge Elimination System permit authority, would regulate planned surface water discharges with respect to chemical hazards.

Item 5: NRC Inability to Regulate and Cleanup Groundwater Pollution Pre- l i

dating 1978.

i If licensees can show that off-site groundwater contamination occurred prior  !

to 1978, then the NRC does not have any regulatory authority over it.

Response

The NRC did not have authority over byproduct material until the passage of

4 the Uranium Mill Tailings Radiation Control Act of 1978. As such, licensees i do not have to clean up off-site contamination if they can show that all the

. contamination occurred before 1978. However, if this demonstration cannot be

, made, and this is usually very difficult to show, NRC will continue to  ;

regulate the cleanup of contaminated groundwater beyond the mill site  !

J boundary. This is an important distinction that was made to the State of Utah

, during the June 19, 1996 meeting between NRC and Utah.

1 i Item 6: NRC Refusal to Enforce Voluntary Commitments by a Licensee ,

The NRC staff refused to enforce voluntary commitments made by licennes.

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Response

Although licensees may propose many commitments in their groundwater CAPS, NRC may not want to include all these commitments in a license condition. Many considerations help determine what commitments should be placed in a license condition. Some of these considerations include: 1) a sound technical basis to include the commitments; 2) consistent and appropriate application of the regulatory program; 3) the ability to conduct effective inspections of the licensee commitment; and 4) the obligation to enforce license conditions, i regardless of the basis for the condition.

NRC has further considered this item and concludes that it could include voluntary reporting commitments in a license. License conditions would have to be written carefully, taking into account the above considerations.

Enforcement of commitments that have no basis in NRC regulations could present 3

i problems; therefore, commitments that are needed for compliance with State of Utah standards would be the responsibility of the State to enforce. However, l

the staff is prepared to work with Utah in this area within the regulatory '

l framework discussed above.

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MEMORANDUM 0F UNDERSTANDING  !

BETWEEN THE UNITED STATES NUCLEAR REGULATORY COMMISSION f AND THE STATE OF UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY i

1. Purpose. This Memorandum of Understanding ("MOU") is intended to i provide a framework for voluntary cooperation between the United States l Nuclear Regulatory Commission ("NRC") and the State of Utah, Department of (

Environmental Quality (UDEQ) to minimize or eliminate the dual regulation of i groundwater at uranium mills in the State of Utah. l

2. Reaulatory Authority. The NRC regulates radiological and non- '

radiological hazards of byproduct material as confined in Section 11e.(2) of ,

the Atomic Energy Act of 1954, as amended, 42 U.S.C. 5 2011 gi Leg. e The UDEQ j administers and enforces Utah's environmental statutes over the radiological  ;

hazards of 11e.(2) byproduct material.

3. Desianation of Site Coordinators. Within ninety (90) days after l execution of this M00, each agency will designate a site coordinator for each ,

uranium recovery mill or lle.(2) byproduct disposal site identified in  ;

Appendix A. Each agency shall notify the other, in writing, of the name, j address, telephone and facsimile numbers of each site coordinator. Any i changes in the designation of a coordinator will be communic:.ted in writing to '!

the other agency. l

4. Meetinas and Conference Calls between the Aaencies. At the request of either agency, with reasonable notice, a meeting or conference call will be scheduled between the site coordinators and other agency representatives to l discuss coordination of actions related to groundwater restoration work or J 11e.(2) byproduct disposal at 9ranium mills covered by this agreement.

5. Technical and Reaul:: tory Censultation. At the request of either agency, with reasonable notice, representatives of each will be made available to discuss technical or regulatory matters pertaining to groundwater restoration work at the sites covered under this agreement.

, 6. Meetinas with the Public. Except in response to site emergencies,

! each agency will notify the other, at least two weeks in advance, of any l public meeting related to groundwater restoration activities at sites covered l by this agreement.

7. Meetinas with Other Reaulatory Entities. At its discretion, either ,

agency may invite representatives of the other agency to attend meetings with  !

other regulatory entities who share some responsibility for the groundwater restoration at sites covered under this MOU. At a minimum, both parties to this MOU will keep the other informed of such meetings and the results of those meetings. [It should be acted that the NRC has an Open Meeting policy which would require these meetings to be open to the public because they l

almost always would involve discussions concerning a specific licensee (0 pen Meeting Statement of NRC Staff Policy, 59 Federal Reaister 48340,9/20/94)].

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8. Notice of Site Inspections. Each agency will make a good faith i effort to coordinate routine site inspections of groundwater restoration 1 activities at sites covered under this agreement by providing two weeks  ;

advance notice (when possible) to the other agency. l l

l 9. Dissemination of Information to Other Aaencies. As necessary to i l implement oversight of operations, remediation, and decommissioning of sites  ;

! covered under this agreement effectively, the agencies will coordinate pertinent and appropriate dissemination of mformation to other Federal, State i l and local government agencies.

l 10. Exchanae of Information Between Aaencies. 1 A. The agencies will exchange information concerning groundwater restoration of uranium recovery mills and lle.(2) byproduct disposal sites as follows:  !

i. Upon request, NRC will make available to UDEQ for review and copying any documents disclosable to the public under the Freedom of Information Act, 5 U.S.C. s 552, NRC regulations in 10 CFR Part 9, Public Records, and in 10 CFR Part 2.790, public inspections, exemptions, requests for withholding, and any other applicable Federal statute, regulation, or l policy.

ii. Upon request, UDEQ will make available to the NRC for j review and copying any documents disclosable to the public under the [ insert appropriate state policy) UDEQ's public information policy, and any other applicable Utah statute, regulation, or policy. .

i B. All documents exchanged by the agencies will be addressed to the designated coordinator for the each site.

C. Nothing in this M0V shall be construed a' compelling either agency to produce information or documents which the asency deems confidential or privileged.

11. Disclosure of Information to the Public. The right of access by the public to information under Federal and State law, regulation, or policy is not affected by this MOU.

12. Desianation of Sinale Reaulator for Groundwater Restoration.

A. It is agreed that the lead agency for developing a regulatory program for groundwater restoration at uranium mills shall be the NRC. The regulations and standards that NRC will use in its regulatory program will be those contained in 10 CFR Part 40, Appendix A.

B. The NRC will be the lead agency for setting standards other than those contained in 10 CFR Part 40, Appendix A. This could include standards for constituents not covered currently in 10 CFR Part 40, Appendix A, as well as background limits or alternate concentration limits for any constituent regulated by NRC under this agreement. It is agreed that the final determination of any limits for groundwater clean up rests with NRC. If the l

i State of Utah does not agree with the NRC's final determination, it can choose  ;

l to implement its own regulatory program. However, if the State of Utah does i not notify NRC in writing within 60 days of the final NRC position, then the 1

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( , u "s'. 6 State of Utah agrees that it will not require any additional clean up by the United States Department of Energy (DOE), if DOE is the long-term care custodian for the site.

C. The evaluation of any groundwater clean up program, or any modification to an already accepted program, will be the responsibility of the NRC. The NRC will be the lead Agency for determining the acceptability of any program, or modification. If the State of Utah does not agree with the NRC's final determination, it can choose to implement its own regulatory program, and require additional groundwater corrective actions. However, if the State of Utah does not notify NRC in writing within 60 days of the final NRC position, that Utah plans to undertake its own regulatory program, then the NRC position will be accepted as final by both agencies.

l D. On occasion, and when the NRC determines there is a sound technical and regulatory basis to do so, NRC will implement the flexibility l provided in 10 CFR Part 40, Appendix A, and will expand the list of constituents contained in 10 CFR Part 40,' Appendix A, Criterion 13.

E. The State of Utah agrees that it will not petition to intervene or participate in any hearing on licensing matters before the NRC that are covered by paragraphs 12.B. and C. unless notice was given within 60 days of the NRC final position.

13. Modifications. Any modifications or changes to this MOU shall be effective only if agreed to by the parties and set forth in writing as an amendment of this MOU.

14. Reservation of Riahts. Nothing in this MOU shall affect the  ;

rights, duties and authority of either agency under the law. The agencies reserve their respective authority and rights to take any enforcement action which they deem necessary to fulfill their duties and responsibilities under the law.

15. Non-bindina Memorandum. This memorandum is not intended to and does not create any contractual rights or obligations with respect to the NRC, t

UDEQ, or any other parties.

Carl J. Paperiello, Director Date Office of Nuclear Material Safety  !

and Safeguards

- U.S. Nuclear Regulatory Commission ,

Washington, D.C.

Diane R. Nielson, Executive Director Date ,

Department of Environmental Quality State of Utah Salt Lake City, Utah 3

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_ ug4 j1 #o UNITED STATES g '!

-8 g- NUCLEAR REGULATORY COMMISSION ,

{ r WASHINGTON, D. C. 20565

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CHAIRMAN i i

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Dr. Dianne Nielson, Executive Director Department of Environmental Quality /

c State of Utah

.168 North 1950 West 4

Post Office Box 144810 Salt Lake City, Utah 84114-4810 o

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Dear Dr. Nielson:

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' -I am responding to your September 16, 1996, letter describing the recent efforts undertaken by the State of Utah /and.the U.S. Nuclear Regulatory i

' Commission staff to eliminate dual regdlation at uranium mill sites in Utah.

In particular, you were concerned that the staff was not taking the actions, regarding the six areas of. concern , identified in your letter, that the State r

_ of Utah believed were necessary to prot'ect the public health and safety.

! Because of this, the State of Utah concluded that NRC was not committed to 4

eliminating dual regulation. A respbnse to the six individual areas of l

i concern identified in your letter .is included in Enclosure 1. In response to the general concerns you rais6d,,! want to clarify the NRC regulatory mission, and explain why NRC was not Utah believed were necessar/able'to undertake all the actions the State L / y fo'r eliminating dual regulation.

E As has been explained to/repr/ esentatives of the State of Utah in th'e past, the standards contained in NRCfregulations conform with the standards promulgated

by the U.S. Environmental / Protection Agency (EPA). Not only did EPA find that

) 'these standards protect ,the public health and safety, but judicial- reviews by 2-a Federal Court found/that the EPA standards met the legislative mandate for protection of groundwater [American Mining Congress v. Thomas, 772 F.2nd 640 (10th Cir. 1985); American Mining Congress v. NRC, 902 F.2nd 781 (10th Cir.

1990)]. Because the'NRC requirements conform to the EPA standards, the NRC i i ..

' requirements also. protect the public health and safety. Undertaking the 4

i actions proposed)t standards, may always be necessary to protect the public health andy safety. For e mple, in implementing its regulatory program, NRC takes into

" account the u imate use of contaminated groundwater. In some cases, groundwater i y not be drinking-water quality, and as such, NRC may exercise regulatory scretion regarding what cleanup actions licensees need to take to meet the r ~ulations. The State of Utah, on the other hand, views all

- groundwat r as potential drinking-water, and may occasionally require

{ regulat y actions that go beyond NRC regulations. This different view of the

ultim j StatpfUtahprograms,use of groundwater is one of the major differences between NRC 7

i Whe the staff and the State of Utah began discussions on how to eliminate I dual regulation, the staff was aware of the more restrictive nature of the i

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D. Nielson 2 State of Utah program, but did not fully recognize the different view of the ultimate use of groundwater. However, the staff continued discussions in an attempt to achieve a mutual agreement on standards that both agencies could conclude protect the public health and safety, without the need to impose the State of Utah standards. During the past year of interactions, it became apparent that the State of Utah wanted NRC to impose the State of Utah requirements on NRC licensees. As was properly noted in th'e meetings between the State of Utah and NRC, there are many aspects of the, State of Utah requirements, such as surface water standards, where the'NRC does not have statutory responsibility. In addition, there are many/other areas of groundwater protection where the NRC may not find a need to implement requirements as restrictive as those imposed by the/ State of Utah. Although 6f the State of Utah the NRC itwas requests, willing would do sotoonly consider implementing if it believed that t some/ aking the action was necessary to protect the public health and safet'y, and it could provide a sound technical and regulatory basis for such 4ction.

p However, the agreement being advocated by th'e' State of Utah would have NRC implement all the State of Utah requirements. This approach would require NRC to revise its groundwater program, incluping changes to the NRC regulations.

Because the present NRC program protect.s the public health and safety, NRC informed the State of Utah that it did/not plan to undertake any regulatory actions beyond those currently in the' Federal program. NRC encouraged the State of Utah to review the requirements being implemented as part of the Federal program to see if the State' could accept this program. As an alternative, the State of Utah could consider becoming an Agreement State for 1 uranium recovery facilities. This would allow the State of Utah to implement were necessary to regulate gr )undwater quality.the NRC program, and any ad There are ways we can work .ogether to eliminate dual regulation if you still wish to do so. Wehaves)fgned Memoranda of Understanding (MOUs) with several States to facilitate inte'ractions. Enclosure 2, for your consideration, is an MOU between NRC and the/ Utah DEQ that we have drafted that would eliminate dual regulation in Utah. If you woald like to pursue this approach, my staff would be pleased to work with you te finalize an MOU. Another approach to help reduce dual regulation would have Utah licensees voluntarily commit to report on actions r standards sr.tisfying Utah. NRC could. include those voluntary commit nts to report, in the license. My response (in Enclosure 1) to item 6 of yo letter discusses some of the considerations NRC uses to determine the propriateness of including a commitment in the license. In order to incl e voluntary commitments, the license condition would have to be carefully wor ed to ensure that NRC does not have to enforce commitments that go beyond N C regulatory authority. There may also be an additional issue relating t State reimbursement for NRC implementation of Utah requirements dependin on the extent of our involvement relating to the reporting require nts and need for any direct NRC licensing review assistance. Under curren Commission policy relating to fees and technical assistance to Agreerpent States, direct licensing review assistance would be subject to State reimVursement. NRC staff could work with your staff if you want to pursue this approach.

i D. Nielson 3 l

In closing, I would like to note that although NRC and Utah may not always .

reach agreement on all issues, NRC has attempted to respond to concerns raised l by the State. In addition, at the request of Mr. Bill Sinclair, the Director  !

of the State of Utah Division of Radiation Control (DRC), the staff holds  !

bimonthly calls with DRC to discuss the status of uranium recovery facilities i in the State of Utah. NRC has also met with representatives from DRC to i discuss issues of importance, and continues to work closely with DRC on j

! significant issues such as the Atlas reclamation. I believe these NRC actions  ;

indicate that NRC is committed to working with the State of Utah. I trust l that this reply responds to your concerns and clarifies NRC's position.  !

1 I Sincerely,  ;

4 Shirley Ann Jackson i

Enclosures:

1. Response to State of Utah, dated 9/16/96 '

2. Memorandum of Understanding cc: Don Ostler, UDWQ Larry Mize, UDWQ Bill Sinclair, UDRC Peter Heaney, Grand County' Council I

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D. Nielson 3 [ l in the State of Utah. NRC has alsc, met with representatives from DRCf o l discuss issues of importance, and continues to work closely with DRC/on l significant issues such as the Atlas reclamation. I believe these NRC actions indicate that NRC is committed to working with the State of Utah I trust l

that this reply responds to your concerns and clarifies NRC's po[sition Sincerely,

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Shirley Ann Jackson

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Enclosures:

1. Response to State of Utah, dated 9/16/96 /

2. Draft MOU Between NRC and State of Utah

, cc: Don Ostler, UDWQ

! Larry Mize, UDWQ Bill Sinclair, UDRC ,/

[

Peter Heaney, Grand County Council /

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TICKET #: EDO 96727 /

DISTRIBUTION: File Center PUBLIC

/ CSeelig, PMDA

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l In smal Box on "DATE:" line enter: M = E-Mail Distribution Copy H = Hard Copy j t 0FFICIAL RECORD COPY ,

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D. Nielson 3 indicate that NRC is committed to working with the State of Utah. I trust that this reply responds to your concerns and clarifies NRC's position.

Sincerely, Shirley Ann Jackson

Enclosure:

Response to State of Utah, dated 9/16/96 cc: Don Ostler, UDWQ Larry Mize, UDWQ Bill Sinclair, UDRC Peter Heaney, Grand County Council TICKET #: ED0 96727 DISTRIBUTION: File Center:PUBLIC NMSS r/f URB r/f CSeelig, PMDA MBell LHowell CCain DCorley, OC HThompso EDO [ JSurmei r/r feMWeber DWM r/f DWM t/f s JAust yi' DGillen DIR r/f MBridgersFE00 RBangart, P KCyV, 0GC CPoland s YMN///

Path & File Name: S:\DWM\ URB \MHF\ST0FUT.RSP *SEE PREVIOUS CONCURRENCE we unsa uns. C TEena og L

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indicate that NRC is committed to working with the State of tah. I trust that this reply responds to your concerns and clarifies NR s position.  ;

i Sincerely, l

I  !

l Shirley nn Jackson l l

I

Enclosure:

i Response to State of Utah, dated 9/16/96 l

cc: Don Ostler, UDWQ Larry Mize, UDWQ Bill Sinclair, UDRC Peter Heaney, Grand County Council l

TICKET #: E00 96727 DISTRIBUTION: File Center PUBLIC NMSS r URB r/f CSeelig, PMDA MBell JSurmeier LHowe CCain DCorley, OC HThompson EDO r/f MWeb DWM r/f DWM t/f JAustin DGillen DIR r/f MBridgers, EDO RBangart, SP KCyr, 0GC CPoland Path & File Name: S:\DWM\ URB \MHF\ST0F .RSP *SEE P_REVIOUS CONCURRENCE OFC URB

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D. Nielson 4 In closing, I would like to note that although NRC and Utah may not always reach agreement on all issues, NRC has attempted to respond to concerns raised by the State. In addition, at the request of Mr. Bill Sinclair, the Director of the State of Utah Division of Radiation Control (DRC), the staff holds  ;

bimonthly calls with DRC to discuss the status of uranium recovery facilities in the State of Utah. NRC has also met with representatives from DRC to discuss issues of importance, and continues to work closely with DRC on significant issues such as the Atlas reclamation. I believe these NRC actions indicate that NRC is committed to working with the State of Utah. I trust that this reply responds to your concerns and clarifies NRC's position.

Sincerely, Shirley Ann Jackson

Enclosure:

1. Response to State of Utah, dated 9/16/96

2. Memorandum of Understanding cc: Don Ostler, UDWQ Larry Mize, UDWQ Bill Sinclair, UDRC Peter Heaney, Grand County Council TICKET #: EDO 96727 DISTRIBUTION: File Center PUBLIC NMSS r/f URB r/f CSeelig, PMDA MBell JSurmeier LHowell CCain DCorley, OC HThompson EDO r/f MWeber DWM r/f DWM t/f JAustin DGillen DIR r/f MBridgers, EDO RBangart, SP KCyr, OGC CPoland CNWRA Path & File Name: S:\DWM\ URB \MHF\ST0FUT.RSP *SEE PREVIOUS CONCURRENCE OFC URB *!M URB

• TECH

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in the State of Utah NRC has also met with repre ntatives from DRC to discuss issues of importance, and continues to w closely with DRC on significant issues such as the Atlas reclamatior. I believe these NRC actions indicate that NRC is committed to working with he State of Utah. I trust that this reply responds to your concerns an clarifies NRC's position.

ncerely, Shirley Ann Jackson

Enclosure:

1. Response to State of Utah, date 9/16/96 '

2. Memorandum of Understanding cc: Don Ostler, UDWQ Larry Mize, UDWQ  !

Bill Sinclair, UDRC Peter Heaney, Grand Coun y Council TICKET #: EDO 96727 DISTRIBUTION: File Center PUBLIC NMSS r/f URB r/f CSeelig, PMDA l MBell JSurmei LHowell CCain DCorley, OC ,

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r D. Nielson 3 indicate that NRC is committed to working'with the State of Utah. trust  :

that this reply responds to your concerns and clarifies NRC's posi ion.

Sincerely, -

I l

Shirley Ann Jac son

Enclosure:

Response to State of Utah, dated 9/16/96 "

cc: Don Ostler, UDWQ Larry Mize, UDWQ Bill Sinclair, UDRC Peter Heaney, Grand County Council TICKET #: EDO 96727 i

plSTRIBUTION: File Center PUBLIC NMSS r/f U r/f CSeelig, PMDA l ain DCorley, OC MBel JSurmeier LHowell C HThompson JTaylor ED0 r/f deber DWM r/f JAustin DGillen DIR r/f Bridgers, ED0 Path & File Name: S:\DWM\ URB \MHF\ST0FUT.RSP *SEE PREVIOUS CONCURRENCE OFC URph , URB' TECH

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l D. Nielson 3 /

indicate that NRC is committed to working with the State of Utah. trust that this reply responds to your concerns and clarifies NRC's pos ion.

Sincerely, I

Shirley Ann Jack n  !

Enclosure:

Response to State of Utah, dated 9/16/96 ,

cc: Don Ostler, UDWQ Larry Mize, UDWQ Bill Sinclair, UDRC Peter Heaney, Grand County Council ,

TICKET #: EDO 96727 l DISTRIBUTION: File Center PUBLIC NMSS r/f URB r/f CSeelig, PMDA MBel JSurmeier t.H';well CCain DCorley, OC HThompson -JTay1or - ED0 r/f MWeber DWM r/f JAustin. DGillen DIR r/f MBridg rs, ED0 Path & File Name: S:\DWM\ URB \MHF\ST0FUT.RSP *S E PREVIOUS CONCURRENCE  ;

OFC URB. // USB, s b TECH'~ DWM OGf NMSS NMSS  !

NAME MF$ieg[ JHo i)h EKraus JGreeves f MKnapp CPaperiello DATE //

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OFC EDO EDO OCM NAME HThompson JTaylor SJackson f DATE 10/ /96 10/ /96 10/ /96 f In small Box on "DAT E:" line enter: M = E-hail Distribution Copy H = Hard Copy j OFFICIAL REC 0itD COPY 1 1

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j 10-G9-1996 4:42PM FROM kET5ER-KRAUS. IhC. 232 537 5133 P. 4 l i

Ub NHL-UWrl/Nribb i El : 0V P41b-bo9 / ~

UCt U9'9b AS:J9 NO.UU'O V.U4 '

) -the NRC was willing to consider i lamenttn some of the State of Utah requests it would on1 do sotif k;*d taking the action was /

@' necessary, to em /

public health and fety, and 0.4 ~ could provide a /

j sound technical and ~ regulatory basis for the on.

{ Powever, the agreement being advocated by the State of Utah would have NRC

/

1 implement all of the State of Utah requirements. This approach would require

! NRc to mvise its groundwater progras, incl change o the NRC i meulations. Because theJUPma% IftC progr protec -ef u ic alth s

ad and safety, the NRC infomed the State of U that it id not plan to /

f undertake any regulatory actions beyond those currently in the Fearal /

) p ras. %e NRC encouraged the State of Utah to review the requheents be taplemented as part of the Federal program, and see if the statajcould

! its regulatory oversight. As an alternative, the State of Utah could 4

consider becoming an Agreement State for uranium recovery facilities / TMs j would allow the State of Utah to implement any program it believed das necessary to regulate groundwater quality.

In closing I would like to note that although tito NRC and Utah may not always reachagree,mentanallissues,NRChasattemptedtorespondtopacernsraised i by the State. In addition, at the request of Mr. Bill Sinc 14trh the Director -

i of the State of Utah Division of Radiation control (DRC), the11RE staff holds bloonthly calls with DRC te dis =h i/ne $istus of uranium recovery facilities

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in the state or Utah. -Tigen NRC has also met oth representat/ves from DRC to discuss

[_] j significantissues issues of importance, as the Atlasand continues to wrk closely /with DRC estions ese l such reclamation. I mrtnt Tnese

} t a ^ vi . w= eau, indicate that itted to wo ng with the State i of Utah. s. 4 4 thi tt/s# g et <-

i tu sty \

Mcmh y- uds M '/ Sincerely, 1 \ o: 5.'s s t$C l Np U , pr: Im- Shirley Ann ackson i

panentostateofUtah, dated 9/16/96[l

! cc Don Ostler. 00WQ j Larry Mize, UDWQ Bill Sinclair, UDRC

] Peter Heaney, Grand County Council Center PUBLIC letSS r/f UR8 r f CSeelig, PMDA

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l URANIUM REC 0VERY BRANCH Routing and Transmittal Slip Date:

l NAME: INITIALS DATE i

1. Myron Fliegel [/ b 10/ / 6 96

2. Joseph Holonich 10/ / 4 /96

3. Ellen Kraus 10/ 09 /96 i l 4. John Greeves dh 10/ // /96

,qs 5. 0GC [_ - 10/ /96 l 6. Richard Bangart //N 10//f /96 l 7. Malcom Knapp 10/ /96 1

8. Carl Paperiello 10/ /96

9. Hugh Thompson 10/ /96

10. James Taylor 10/ /96

! 11. Shirley Jackson 10/ /96 !

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SUBJECT:

RESPONSE TO SEPTEMBER 16, 1996, LETTER ON URANIUM RECOVERY Originator: Myron Fliegel Location: T-7 Room J9 Secretary: Sophia Gilchrist Phone: 415-7238 l

DOCUMENT NAME: S:\DWM\ URB \MHF\ST0FUT.RSP O

TICKET #: ED0 96727 g) MSS C ue.

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FROMs DUE: 10/08/96 EDO CONTROL: GT96727 .

DOC DT: 09/16/96 .l FINAL REPLY-  !

l Dic.nns R. Nielson Utah Department of Environmental Quality ,j-i TO:

l:

Chairman Jackson l FOR SIGNATURE OF : ** GRN ** CRC NO: 96-1018

-l l Chairman Jackson  !

DESC: ROUTING- '

l NRC URANIUM RECOVERY PROGRAM Taylor l

! M11hoan l l Thompson i Blaha l

Bangart, SP j Cyr, OGC l DATE: 09/25/96 .i ASSIGNED TO: CONTACT: b

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SPECIAL' INSTRUCTIONS OR REMARKS:

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, *- *. OFFICE OF THE SECRETARY l' CORRESPONDENCE CONTROL TICKET j l.

PAPER NUMBER: CRC-96-1018 LOGGING DATE: Sep 25 96 l

ACTION OFFICE: EDO  !

AUTHOR: DIANNE NIELSON AFFILIATION: UTAH i

! ADDRESSEE: CHAIRMAN JACKSON LETTER DATE: Sep 16 96 FILE CODE: MHS-11' l

SUBJECT:

JULY 29, 1996 COMMISSION BRIEFING ON THE URANIUM RECOVERY PROGRAM: STATE OF UTAH REPLY ACTION: Signature of Chairman DISTRIBUTION:' CHAIRMAN, COMRS, RF SPECIAL HANDLING: SECY TO ACK CONSTITUENT:

NOTES: OCM #5370 DATE DUE: Oct 9 96 I

SIGNATURE: . DATE SIGNED:

-AFFILIATION:

EDO -- GT96727

l l 5376

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6 DEPARTMENT OF ENVIRONMENTAL QUALITY

~

l OFFICE OF THE EXECUTIVE DIRECTOR y

Michael O. Invitt ! 168 North 1950 West ,

G""" E P.O. Box 144810 '

Dianne R. Nielson, Ph.D. [ Salt lake City, Utah 84114-4810 l l Escem Dnct"

@ (801) 536-4400 Voice Brent C Bradford (f (801) 536-0061 Fax Deputy Directa ( (801) 536-4414 T.D.D.

September 16,1996 Dr. Shirley Jackson, Chairman U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 1

Re: July 29,1996 Commission Briefing on the Uranium Recovery Program: State of Utah Reply.

Dear Dr. Jackson:

We have reviewed certain comments made by NRC staff before the Commission during a briefing of July 29,1996 regarding the NRC Uranium Recovery Program (August 19,1996 NRC transcripts). Some of these statements referred to the State of Utah's Radiation Control Program, and appear to be out of context. Consequently, we would like to share with you our views and experience on these matters.

The transcripts of that meeting state that:

In Utah, we have been working with Utah on mainly the Atlas site. We haven 't had as much success there. The state wouldlike us to take over regulation of all the groundwater, including implementation of its groundwater standards, the state groundwater standards and state surface water standards. We couldn't do that.

The state didn'tfeel comfortable, then, with having a double regulator there. We have been continuing to work with the state, continuing a dialogue with the state. We have not had as much success. "

Our purpose from the beginning has been to avoid a dual regulatory situation for the Atlas and other uranium mill tailings facilities in Utah. We believe this is in the best interest of both the uranium industry and the Utah public, providing certain regulatory issues and difference > could be resolved.

We first brought our concerns to the attention of the NRC staff in a request for a meeting dated March 22,1995. Later, this meeting was held in Salt Lake City on June 12,1995. In attendance where Messrs.

Joe Holonich, Mike Layton, and Mike Fliegel of the NRC, and staff of the Utah Divisions of Radiation Control ORC) and Water Quality (DWQ). During this meeting State concerns related to groundwater quality protection and 6ranium mills were presented to the NRC staff. Central to the discussion were certain regulatory gaps or differences between the State and NRC groundwater requirements, which the State hoped could be filled, resolved, or reconciled; and thereby avoid the need for dualjurisdiction over uranium mill sites. At the conclusion of this meeting, it was our understanding that the NRC staff would evaluate our concerns, confer with legal counsel, and respond to us in a timely manner.

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[ Dr. Shirley Jackson, Chairmau j

! September 16,1996  :

Page 2 I 1

l After nearly a year had passed without feedback from the NRC, Messrs. Holonich and Fliegel were invited  !

to retum to Salt Lake City and update us on any progress they had made regarding our earlier concerns.

This meeting was held in Salt Lake City on June 4,1996, in conjunction with a meeting with Atlas Corporation regarding the State's comments on the recent NRC Draft Environmental Impact Statement ,

and Draft Technical Evaluation Report. During this meeting we discovered that our original concerns  :

were largely unsatisfied by the NRC staff. In addition, the NRC staff elaborated on other short-comings  !

l of the NRC regulations, which expanded the number of State issues and concerns held. The major State l l issues identified during the course of both of these meetings with your staff are summarized below. j i

! 1.' Narrow Definition of" Hazardous Constituent": Contaminant Detectability - NRC Criterion SB(2)  !

unduly restricts the definition of a " hazardous constituent" by requiring that a uranium mill  ;

tailings contaminant: '

i

( A. Be reasonably expected in the waste, and  ;

i B. Have been already detected in groundwater at the facility, and l .

C. Be listed in NRC Criterion 13, 1 Our concern here is that many mill tailings contaminants are retarded during groundwater flow and transport processes. Consequently, if the determination of the presence of a contaminant in groundwater is undertaken only once, early in a facility's life, and then only in monitoring wells I at the perimeter of a facility; retarded contaminants could later be released by the facility which would go unregulated by the NRC. Such unregulated and unmonitored release has the potential of causing adverse impact to human health and the environment.

Contrary to the NRC's' approach, the State Ground Water Quality Protection Regulations require the facility to define all contaminants in the waste form which could potentially be leached and discharged to groundwater. Thereafter, periodic monitoring' of the full suite of tailings contaminants, including retarded species, can be required for the protection of human health and the environment.

During a June 4,1996 meeting, Mr. Holonich of your staffinformed us that this issue would soon be brought to your attention. We anticipate that this issue could easily be resolved by periodic groundwater monitoring for a complete suite of uranium mill tailings contaminants and addition of detected contaminants via license amendment, as necessary. We encourage the Commission to carefully consider and resolve this issue relative to the NRC uranium mill tailings regulations.  ;

2. Missinn Non-radiologic Contaminants in NRC Criterion 13 - As described above, the NRC does not regulate groundwater contaminants at uranium mill sites unless they are listed in 10 CFR 40,

- Appendix A, Criterion 13. ,

1 Currently NRC Criterion 13 does not include several non-radiological contaminants of human health concern at uranium mill tailings, which are regulated by the Utah Ground Water Quality Protection (GWQP) Regulations (Utah Administrative Code [UAC], R317-6), including, but not l limited to: ammonia, copper, fluoride, manganese, nitrate, nitrite, pH, total dissolved solids

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i l

Dr. Shirley Jackson, Chairman )

- September 16,1996-Page 3 (TDS), vanadium, and zinc. Most of these contaminants are regulated under the State GWQP Regulations by direct groundwater quality standards (copper, nitrate, nitrite, pH, TDS, and zinc, j see UAC R317-6-2). State GWQP Regulations also allow the Department of Environmental i Quality (DEQ) to set groundwater protection criteria for other contaminants where human health or other environmental criteria are available (ammonia, manganese, and vanadium, see UAC R317-6-2.2).' The NRC lack of discrete groundwater protection standards for these non-radiological contaminants appears to be an important missing element in the NRC regulations.

During our June 12,1995 meeting, Mr. Mike Layton of your staff informed us that Criterion 13 l provides flexibility for the Commission to determine other " hazardous constituents", as follows l (10 CFR 40 Appendix A, Criterion 13 preamble): i

"... The Commission does not consider thefollowing list imposed by 40 CFR Part 192 to be exhaustive and may determine other constituents to l be hazardous on a case-by-case basis, independent of those specified by .

\ the U.S. Environmental Protection Agency in Part 192. "

However, after compilation of the minutes from our June 12, 1995, the NRC staff made no commitment to the State to' evaluate or include the additional non-radiological mill tailings contaminants ofinterest (see Utah DEQ/NRC June 12,1995 Meeting Minutes, p.4). This position I was reinforced during our June 4,1996 meeting, wherein Mr. Holonich informed us that the NRC would not evaluate our concerns in this matter; and reiterated that the burden to substantiate any cause for our concems rested with the State of Utah.

This pc sition appears recalcitrant, inflexible, and feeble in that the U.S. Environmental Protection l Agency (EPA) has already established human health and environmental protection standards and criteria for all of these non-radiologic contaminants of concem thru regulations promulgated under the Ch:an Water and Safe Drinking Water Acts. Furthermore, State surface and ground water quality protection standards and criteria for these contaminants have been derived in large part :

from existing and applicable EPA standards and requirements. ~ As a result, State ground and surface water quality protection standards are protective of human health and the environment.

., 3. Inclusion of Mill Site Facilities in Groundwater Monitorina. Characterization. and Corrective Action - State Groundwater Quality Protection Regulations allow regulation of a broad range and l types of discharges to groundwater, including areas wherein effluent or leachate has been stored,  !

applied, disposed of, or discharged (UAC R317-6-1.28).- This approach to groundwater pollution control allows regulation of both uranium mill tailings embankments and mill site related facilities.

Examples of such mill re:ated facilities include: raffinate ponds; ore stockpiles; reagent storage tanks, facilities, and related conveyances; and storm water retention ponds which may receive effluents or reagent spills.

Common sense dictates that these related sources of potential groundwater pollution must also be managed and controlled at uranium mill sites in order to prevent groundwater contamination.

Furthermore, in the event of mill closure these related facilit esi must also be evaluated to assess

. any adverse impact to groundwater quality possibly caused by historical releases. 1 1'

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1 i

l Dr. Shirley Jackson, Chairman September 16,1996 Page 4 During our June 12,1995 meeting with your staff, Mr. Holonich agreed to consult with NRC j General Counsel to investigate the agency's authority to regulate such related mill site facilities. 1 Later, in our June 4,1996 meeting Mr. Holonich informed us that these related mill facilities could only be included under a NRC cleanup action if they were located immediately above the  ;

groundwater flow path of tailings embankment contaminants.  !

Mr. Holonich also alluded that NRC Criterion SF could allow investigation of potential groundwater contamination in and around an existing uranium mill site; but that groundwater i cleanup standards could not be mandated under the NRC regulations for these related facilities.  !

Mr. Holonich also added that the NRC could look to the requirements of Criterion SB to address I such issues. However, our review of this requirement shows Criterion 5B focuses only on l uranium tailings impoundments.

Consequently, we have concluded that the NRC regulations are essentially mute on the issue of l

groundwater pollution around mill site related facilities; panicularly if these potential discharge i points are located beyond the influence of the tailings embankment. Based on this situation and information from NRC staff, it appears that State regulation of groundwater under mill site facilities may be necessary to protect State groundwater and surface water resources.

4. NRC Lack of Surface Water Ouality Standards for Mill Tailines - During our June 4,1996 meeting, h'r. Holonich made it clear that the NRC regulations for uranium mill tailings have no water quality standards for the protection of the State's surface water. Our review of the NRC i rules found in 10 CFR 40, Appendix A has confirmed this statement. Consequently, it appears i that a NRC radioactive materials license cannot impose surface water quality standards for a uranium mill or tailings facility.

In contrast, Utah DEQ is a primacy state under the EPA National Pollutant Discharge Elimination System (NPDES). Consequently, primary authority for protection of Utah's surface water quality lies with DEQ. Implied in our primacy status is EPA's determination that Utah's surface water quality protection regulations are equivalent to EPA standards and criteria and protective of human health and the environment.

After consideration of the proximity of the Atlas Minerals uranium mill tailings site to the Colorado River, the lack of NRC surface water quality authority and regulations, and the State's primacy status and authority in this area funher reinforces the need and obligation for the State to impose its regulations in order to protect human health and the environment.

5. NRC Inability to Reculate and Cleanun Groundwater Pollution Pre-datine 1978 - During our June 4,1996 meeting, Mr. Holonich informed us that the NRC cannot regulate polluted groundwater at uranium mill tailings embankment, if the licensee can demonstrate this pollution was caused by the disposal facilities or operations prior to 1978, i.e., promulgation of the Uranium Mill Tailings Radiation Control Act (UMTRCA).

At the time UMTRCA was promulgated in 1978, the Atlas Minerals facility near Moab, Utah had been in operation for nearly 22 years. Consequently, there is a significant possibility that ground and surface water pollution exists at the Atlas facility which may have been caused by tailings

1 Dr. Shirley Jackson, Chairman September 16,1996

- Page 5  !

l l

leachates discharged to groundwater befve 1978. In such a case, the NRC would have no authority to require cleanup of such pre-existing ground and surface water pollution. His apparent NRC impotence further reinforces the need for the State to impose its authority at uranium mill tailings facilities that predated UMTRCA,

6. NRC Refusal to Enforce Voluntary Commitments by a Licensee - During our June 4,1996 meeting we explored all possible avenues available to the State to avoid dual regulation of the Atlas Minerals facility. One option discussed was a State determination of measures necessary to protect ground and surface water resources near the Atlas facility; followed by an Atlas proposal to the NRC for a license amendment to include all the State determined measures.

Hereafter, the NRC would enforce these voluntary commitments during normal administration of the license.

However, after lengthy discussion of this option, Mr. Holonich stated that the NRC would refuse to enforce voluntary license commitments that required licensee activity outside the requirements of 10 CFR 40, Appendix A. Furthermore, Mr. Holonich added that if the licensee, at a later date, proposed revoking any part of their previous voluntary commitments to the State, that the NRC

'would be obliged to approve such proposals.

This inability of the NRC to incorporate and enforce extra-ordinary licensing measures thet could avoid the need for dual State /NRC regulation of this site, further reinforces our determinnion that ,

State regulation of the Atlas facility is necessary. l l

Based on our previous meetings and discussions with your staff there appears to be lirtle hope of satisfactory reconciliation of regulatory differences between the NRC and applicable Stafe ground and surface water quality regulations for uranium mill and tailings facilities. As a consequenz, DEQ will require three uranium mill facilities in Utah to secure State permits, including Atlas Minerals tailings near 1 Moab, Utah; Energy Fuels Nuclear mill near Blanding, Utah, and the U.S. Energy Corporation mill near i Ticaboo, Utah.

- We hope that the above presentation regarding the basis and history of our ground and surft.e water quality concems will show that Utah DEQ has made great efforts to avoid dual regulation of the uranium

mill industry and establish a regulatory partnership with the NRC. Any suggestion that Utah DEQ has not sought to establish common regulatory efforts with NRC, or to look for inovative regulatory solutions to protect human health and the environment, is without merit or foundation.

_ _ __ _ .. - . . . _ _.. _ _ _ ._ _._ _ ___ _ .._._ _ __ _ _ 3

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. Dr. Shirley Jackson, Chairman September 16,1996 i l Page 6 l I

If you have any questions or comments regarding our ground or surface water quality concerns, or our j experience in these matters, please call Mr. Bill Sinclair at the Utah Division of Radiation Control at (801)  ;

536-4250. I i

Sincerely,

' ' [

j . .

n.  ;

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tN($6( l Dianne R. Nielson, Ph.D.

Executive Director l cc: Commissioner Rogers, NRC Commissioner Dieus, NRC i Don Ostler, UDWQ i Lany Mize, UDWQ l John Greeves, NRC l Joe Holonich, NRC .

Richard Bangart, NRC OSP  !

Bill Sinclair, UDRC i Peter Heaney, Grand County Council i F:\NRC\GW\nrecom.Itr r

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l U.S. NUCLEAR REGULATORY COMMISSION RESPONSE TO STATE OF UTAH CONCERNS IN SEPTEMBER 16, 1996, LETTER TO CHAIRMAN SHIRLEY JACKSON Item 1: Narrow Definition of " Hazardous Constituent": Contaminant Detectability There are actually two issues identified under this item.

1.a) NRC Criterion 5B(2) unduly restricts the definition of a " hazardous constituent."

Response

The definition comes directly from U.S. Environmental Protection Agency (EPA) standards in 40 CFR Part 192.

1.b) The determination of whether a constituent meets the definition of

" hazardous constituent" is made only once, early in a facility's life.

Consequently, slow moving constituents, that may contaminate groundwater after the initial determination of " hazardous constituents," are not monitored and could, therefore, be unregulated.

Response

All uranium mills with contaminated groundwater are currently under a corrective action program (CAP). These CAPS require that licensees monitor the groundwater for constituents that were identified as " hazardous constituents" when the programs were developed in the late 1980s and early 1990s. Requiring routine monitoring of constituents that were not identified as " hazardous constituents" when the CAPS were accepted is not necessary for three reasons. First, the CAPS that are currently in place work to reduce groundwater contamination for all constituents that are present, not just those being monitored. Second, before terminating the license for a uranium mill site, the staff will require licensees to demonstrate that all constituents found in the tailings are within standards in the groundwater.

Finally, requiring monitoring of additional constituents does not directly result in additional protection of public health and safety. All the monitoring does is confirm what the amount of any constituent is in the groundwater. It is the CAP that reduces the amount of contamination in the groundwater, and thus helps protect the public health and safety.

Item 2: Missing Non-radiologic Contaminants in Criterion 13 NRC Criterion 13 does not include several non-radiological contaminants, including ammonia, copper, fluoride, manganese, nitrate, pH, total dissolved solids (TDS), vanadium, and zinc, which are regulated by the Utah Ground Water Quality Protection Regulations.

1 Enclosure 1

Resoonse:

As was correctly noted in the State of Utah letter, the NRC has the ability to regulate other constituents beyond those listed in Criterion 13. At the time NRC reviewed the groundwater CAPS, the staff concluded that there was no need 3

to go beyond the list of constituents found in Criterion 13 and in the tailings liquid, for most sites. To date, NRC does not have any reason to revisit those earlier decisions. However, as changes are made to CAPS, or final monitoring is done at the time of license termination, the staff will 4

consider, based on a sound technical and regulatory basis, what, if any, additional constituents should be included.

4 It should be noted that the State of Utah equates the elimination of dual regulation with its proposal to have NRC pick up all responsibility for

. groundwater protection at uranium mills. During the June 1996 meeting, the staff tried to explain that concurrent jurisdiction is an area where both NRC and the State of Utah share regulation of the same nonradiological

. constituents. For those constituents regulated solely by the State of Utah, and not in NRC regulations or license conditions, there are no concurrent

! jurisdictional issues. The State of Utah is the sole regulatory authority.

This is the case for constituents that are in the State of Utah standards, but are not in NRC regulations. The State of Utah proposal would do more than eliminate dual regulation. It would also shift the regulation of State of

Utah groundwater standards to NRC, and remove the State of Utah from any i review or enforcement of its own standards.

, Item 3: Inclusion of Mill Site Facilities in Groundwater Monitoring, l Characterization, and Corrective Action

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l The NRC does not have any standards for cleanup of groundwater contamination

from sources other than the tailings.

Respoqigi I i The State of Utah letter does not accurately portray the NRC regulatory authority over groundwater contamination from sources other than the tailings.

In past meetings with the State of Utah, the staff explained that the Commission has established standards for the cleanup of groundwater contamination from byproduct material in the tailings impoundment. However,

', these standards are not applicable to the cleanup of groundwater contamination solely from other activities within the mill site, such as ore storage or yellowcake storage. Groundwater contamination resulting from sources other than the tailings impoundment can be addressed through 10 CFR Part 40, Appendix A, Criterion 5(F). Under Criterion 5(F), uranium mill licensees would be required to address seepage of contaminants into the groundwater from sources other than byproduct material. Further, Criterion 5(F) specifies that i the cleanup standards for this contamination would be determined on a site-specific basis. The staff informed the State of Utah that it would use the ,

standards in Criterion 5(B) to help ensure that all groundwater would be l cleaned up to comparable standards. The staff has not identified any mill i site where there is groundwater contamination that cannot be attributed to the  ;

tailings impoundment. Because of the close proximity of the mill buildings to the tailings impoundments, the staff concludes that there would not be separate contamination plumes from the mill buildings. As such, the staff is currently applying the standards in Criterion 5(B) to all groundwater cleanup.

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f Item 4: NRC Lack of Surface Water Quality Standards for Mill Tailings f The NRC does not have standards for the regulation of surface water.

Response

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The State of Utah correctly notes that the NRC does not have standards for the  !

3 regulation of surface water potentially contaminated by leakage from the l facility. Therefore, the State of Utah states that it will impose its own >

regulatory program. However, NRC groundwater standards provide protection of surface water. Each constituent must meet one of three standards at the point i of compliance in the groundwater: 1) background concentration; 2) the maximum concentration level established by EPA and identified in Criterion SC; or

3) an alternate concentration limit (ACL) established by NRC. If either one

• of the first two standards is met in the groundwater, for a constituent,  ;

surface water will be protected. To establish an ACL for a constituent, NRC i must consider nine factors relating to potential adverse effects on groundwater quality and nine factors relating to potential adverse effects on hydraulically connected surface water quality. Therefore, although it is t technically correct to state that NRC does not have surface water standards, the regulatory framework in Criterion 5 is protective of surface water. It should be noted that because NRC does not have standards for surface water, there is no concurrent jurisdiction in this area, and thus no dual regulation.

The State of Utah is the sole regulator. ,

Planned discharges to surface waters are regulated under 10 CFR Part 20 for radiological hazards. The State of Utah is correct that NRC does not have the ,

authority to regulate the chemical hazards of planned discharges to surface water. The State of Utah, through its National Pollutant Discharge Elimination System permit authority, would regulate planned surface water ,

discharges with respect to chemical hazards. 1 Item 5: NRC Inability to Regulate and Cleanup Groundwater Pollution Pre- ,

dating 1978. '

If licensees can show that off-site groundwater contamination occurred prior to 1978, then the NRC does not have any regulatory authority over it.

ResDonse:

1 The State of Utah letter does not accurately state the NRC position on this matter. It is correct that NRC did not have authority over byproduct material until the passage of the Uranium Mill Tailings Radiation Control Act of 1978.

As such, licensees do not have to clean up off-site contamination if they can show that all the contamination occurred before 1978. However, if this demonstration cannot be made, and this is usually very difficult to show, NRC will continue to regulate the cleanup of contaminated groundwater beyond the ,

mill site boundary. The State of Utah does not acknowledge this important distinction.

i Item 6: NRC Refusal to Enforce Voluntary Commitments by a Licensee The NRC staff refused to enforce voluntary commitments made by licensees.

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l Response: I

'T The State of Utah portrayal of this situation is not an accurate description .

] of the NRC position. NRC staff explained to the State of Utah during the June I 4,1996, meeting, that although licensees may propose many commitments in l

) their groundwater CAPS, NRC may not want to include all the:e commitments in a  !

! license condition. Many considerations help determine what commitments should be placed in a license condition. Some of these considerations include: 1) a sound technical basis to include the commitments; 2) consistent and appropriate 1pplication of the regulatory program; 3) inspectability of the licensee coamitment; and 4) the obligation of enforcing license conditions, regardless of the basis for the condition.

NRC has further considered this item and concludes that it could include voluntary reporting commitments in a license. License conditions would have to be carefully written, taking into account the considerations identified above. Enforcement of commitments that have no basis in NRC regulations could present problems; therefore, commitments that are needed for compliance with State of Utah standards would be the responsibility of the State to enforce.

However, the staff is prepared to work with Utah in this area.

As noted in the response to Item 1, including all constituents that the State of Utah believes should be covered by a groundwater CAP may not be necessary

, to protect the public health and safety. Current actions NRC requires under its groundwater regulations do in fact, protect the public health and safety.

Adding more constituents to an ongoing licensee program may not be justified when the cost to satisfy the requirement- is compared to a potential, small

, benefit from the level of added protection of the public health and safety.

In addition, as also noted in the response to Item 1, having NRC take on the burden of imposing all the State of Utah groundwater requirement: does more than eliminate dual regulation. It would also shift the regulation of State of Utah groundwater standards to NRC.

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MEMORANDUM OF UNDERSTANDING BETWEEN THE UNITED STATES NUCLEAR REGULATORY COMMISSION AND THE STATE OF UTAH >

DEPARTMENT OF ENVIRONMENTAL OUALITY

1. Purpose. This Memorandum of Understanding ("MOU") is intended to provide a framework for voluntary cooperation between the United States Nuclear Regulatory Commission ("NRC") and the State of Utah, Department of Environmental Quality (UDEQ) to minimize or eliminate the dual regulation of  :

groundwater at uranium mills in the State of Utah.  !

2. Reaulatory Authority. The NRC regulates radiological and non-  ;

radiological hazards of byproduct material as confined in Section 11e.(2) of j the Atomic Energy Act of 1954, as amended, 42 U.S.C. 5 2011 at leg. The UDEQ administers and enforces Utah's environmental statutes over the radiological hazards of 11e.(2) byproduct material.

3. Desianation of Site Coordinators. Within ninety (90) days after i execution of this MOU, each agency will designate a site coordinator for each l uranium recovery mill or 11e.(2) byproduct disposal site identified in i Appendix A. Each agency shall notify the other, in writing, of the name,  !

address, telephone and facsimile numbers of each site coordinator. Any changes in the designation of a coordinator will be communicated in writing to the other agency.

4. Meetinas and Conference Calls between the Aaencies. At the request  ;

of either agency, with reasonable notice, a meeting or conference call will be t scheduled between the site coordinators and other agency representatives to i discuss coordination of actions related to groundwater restoration work or lle.(2) byproduct disposal at uranium mills covered by this agreement.

5. Technical and Reaulatory Consultation. At the request of either '

agency, with reasonable notice, representatives of each will be made available to discuss technical or regulatory matters pertaining to groundwater restoration work at the sites covered under this agreement.

6. Meetinas with the Public. Except in response to site emergencies, each agency will notify the other, at least two weeks in advance, of any public meeting related to groundwater restoration activities at sites covered by this agreement.

7. Meetinas with Other Reaulatory Entities. At its discretion, either agency may invite representatives of the other agency to attend meetings with other regulatory er.tities 2.s snare some responsibility for the groundwater restoration at sites covered under this MOU. At a minimum, both parties of ,

this MOU will keep the other informed of such meetings and the results of l those meetings. [It should be noted that the NRC has an Open Meeting policy l which would require these meetings to be open to the public because they would almost always involve discussions concerning a specific licensee (0 pen Meeting Statement of NRC Staff Policy, 59 Federal Reaister 48340,9/20/94)].

8. Notice of Site Inspections. Each agency will make a good faith  !

effort to coordinate routine site inspections of groundwater restoration l activities at sites covered under this agreement by providing two weeks m Enclosure 2 aRAFT i

advance notice (when possible) to the other agency.

9. Dissemination of Information to Other Aaencies. As necessary to ,

effectively implement oversight of operations, remediation, and decommissioning of sites covered under this agreement, the agencies will coordinate pertinent and appropriate dissemination of information to other Federal, State and local government agencies.

10. Exchance of Information Between Aaencies.

A. The agencies will exchange information concerning groundwater restoration of uranium recovery mills and lle.(2) byproduct disposal sites as follow:

1. Upon request, NRC will make available to UDEQ for review and copying any documents disclosable to the public under the Freedom of Information Act, 5 U.S.C. 6 552, NRC regulations in 10 CFR Part 9, Public Records, and in 10 CFR Part 2.790, public inspections, exemptions, requests for withholding, and any other applicable Federal statute, regulation, or policy, ii. Upon request, UDEQ will make avai. ..ble to the NRC for review and copying any documents disclosable to the public under the [ insert appropriate state policy] UDEQ's public information policy, and any other applicable Utah statute, regulation, or policy.

B. All documents exchanged by the agencies will be addressed to the designated coordinator for the each site.

C. Nothing in this MOU shall be construed as compelling either agency to produce information or documents which the agency deems confidential or privileged. l

11. Disclosure of Information to the Public. The right of access by the public to information under Federal and State law, regulation, or policy '

is not affected by this MOU.

12. Desianation of Sinale Reaulator for Groundwater Restoration.

A. It is agreed that the lead agency for developing a regulatory program for groundwater restoration at uranium mills shall be the NRC. The regulations and standards that NRC will use in its regulatory program will be

1 those contained in 10 CFR Part 40, Appendix A.

B. The NRC will be the lead agency for setting standards other than I those contained in 10 CFR Part 40, Appendix A. This could include standards l for constituents not currently covered in 10 CFR Part 40, Appendix A, as well l as background limits or alternate concentration limits for any constituent regulated by NRC under this agreement. It is agreed that the final determination of any limits for groundwater clean up rest with NRC. If the i

State of Utah does not agree with the NRC's final determination, it can choose to implement its own regulatory program. However, if the State of Utah does not notify NRC in writing within 60 days of the final NRC position, then the State of Utah agrees that it will not require any additional clean up by the United States Department of Energy (D0E), if DOE is the long-term care custodian for the she.

C. The evaluation of any groundwater clean up program, or any 2

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modification to an already accepted program, will be the responsibility of the NRC. The NRC will be the lead agency for determining the acceptability of any program, or modification. If the State of Utah does not agree with the NRC's final determination, it can choose to implement its own regulatory program, and require additional groundwater corrective actions. However, if the State of Utah does not notify NRC in writing within 60 days of the final NRC position, that Utah plans to undertake its own regulatory program, then the NRC position will be accepted as final by both agencies.

D. On occasion, and when the NRC determines there is a sound technical and regulatory basis to do so, NRC will implement the flexibility provided in 10 CFR Part 40, Appendix A, and will expand the list of constituents contained in 10 CFR Part 40, Appendix A, Criterion 13.

E. The State of Utah agrees that it will not petition to intervene or participate in any hearing on licensing matters before the NRC that are covered by this MOU.

13. Modifications. Any modifications or changes to this MOU.shall only '

be effective if agreed to by the parties and set forth in writing as an i amendment of this MOU. '

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14. Reservation of Richts. Nothing in this MOU shall affect the l rights, duties and authority of either agency under the law. The agencies '

reserve their respective authority and rights to take any enforcement action {

which they deem necessary to fulfill their duties and responsibilities under '

the law. i

15. Non-bindino Memorandum. This memorandum is not intended to and does not create any contractual rights or obligations with respect to the NRC, UDEQ, or any other parties.

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Carl J. Paperiello, Director Date Office of Nuclear Material Safety and Safeguards U.S. Nuclear Regulatory Commission Washington, D.C.

L Diane Nielson, Executive Director Date Department of Environmental Quality State of Utah Salt Lake City, Utah 1

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