ML20136E756
| ML20136E756 | |
| Person / Time | |
|---|---|
| Issue date: | 02/03/1984 |
| From: | Malsch M NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20136E683 | List: |
| References | |
| FRN-49FR46418, FRN-49FR6418, RULE-PR-40, TASK-RINV, TASK-SE AB50-2-02, AB50-2-2, SECY-83-523A, NUDOCS 8402170481 | |
| Download: ML20136E756 (15) | |
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2 basis of legal arguments over what is statutorily required to conform to the EPA standards.
Many of the proposed changes in NRC's Requirements appear to be based on nothing more than the absence of a similar requirement in EPA's standards.
As discussed in detail in the attachment, many of the proposed changes relate solely to implementation matters which are within NRC's discretion and outside of EPA's authority. These implementation matters are missing from EPA's standards not because EPA deemed them unnecessary but because they were beyond the scope of EPA's standard setting authority. Accordingly, EPA's failure to include particular implementation matters in its standard does not compel the NRC to delete those implementation matters from its Requirements. Therefore, we believe that the proposed deletions of implementation matters may not withstand judicial review because those deletions are not supported by the argument of necessity to conform to EPA's standard.
This does not mean that the proposed deletions cannot be made. It simply means that where implementation requirements are no longer justified from a technical or policy standpoint, given the EPA standard, then the deletion of those requirements must be based on substantial technical or policy discussion and justification; pure legal arguments will not suffice.
Under these circumstances, we believe that staff's proposed two-step rulemak-ing process should be implemented in a modified manner. The staff has determined that implementation of EPA's ground-water protection standards requires a rulemaking wnich cannot be l
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l 3 i compigted by the April 1, 1984 dead- l line. Accordingly, the staff has proposed to initiate that rulemaking proceeding as a separate matter from the rulemaking to conform NRC's requirements to EPA's standards.
We believe that this strategy also should be applied to some of the proposed modifications to the current NRC Requirements. Those changes which, as a matter of law, are clearly necessary to conform NRC's Requirements to EPA's standards should be accomplished by a quick rulemaking proceeding to be completed as close to the statutory deadline of April 1, 1984 as possible. These modifications are discussed in Part I below.
The other proposed modifications which are clearly matters of implementation within NRC's discretion and outside EPA's jurisdiction should be proposed in a separate rulemaking proceeding. This will provide enough time to develop the supporting technical or policy justi-fications sufficient to provide the legally required notice under the Administrative Procedure Act ("APA").
Our suggestions for preparatory work for this rulemaking are discussed in Part II below.
We believe that this approach will also partially alleviate the concerns raised The staff has interpretated the amendments to UMTRCA to make that deadline inapplicable to NRC's promulgation of regulations implementing EPA's ground-water standards. In staff's view, NRC's implementation of EPA ground-water requirement is governed by Section 84a(3) of the Atomic Energy Act of 1954, as amended by UMTRCA. That provision does not establish a deadline for NRC action.
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by the Agreement. States as reported to you in Mr. Dircks' Memorandum of January 31, 1984. ,
Part I: Changes In NRC Requirements Necessary To Conform To EPA's Standards
- 1. EPA's performance standard requires that site closure be designed to provide reasonable assurance of control of radiological hazards for one thousand years to the extent-reasonably achievable but, in any case, for at least 200 years. 40 CFR 192.32 (b) (1) (i) . Criterion 1 of 10 CFR Part 40, App. A estab-lished an objective of closure designed to last for thousands of years. We believe that the stat-utory requirement for conforming NRC Requirements to EPA standards supports replacement of the goal of thousands of years with the more limited EPA requirements. However, we believe that the statutory mandate for conformance does not support the proposal to simply delete the goal without any replacement with EPA's requirements.
- 2. EPA's standards require the iso-lation of specified contaminants from all ground-water not just usable ground-water. 40 CFR 192.32(a). To the extent that NRC's Requirements are limited to preserving or restoring the quality of ground-water supplies to their current or potential uses those limits should be deleted, as should the word " usable" wherever it appears.
- 3. EPA's ground-water protection standards do not permit the use of low permeability liners under tailings piles and require a l
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corrective action program to restore ground-water quality to EPA's standards. 40 CFR 192.32 (a) .
Criterion 5 would permit the use of low permeability liners and some degradation of ground-water quality as long as the water's use level was maintained. We agree that these provisions in Criterion 5 should be deleted.
- 4. EPA would limit radon releases from stabilized tailings piles to 20 pCi/m a /s. 40 CFR 192.32 (b) (1) (ii)
Criterion 6 of 10 CFR Part 40, App.
A established a radon emanation rate of 2 pCi/m2/s. Conformance requires that the rate in Criterion 6 be changed to the EPA value.
- 5. Staff proposes to incorporate in Criterion 6 EPA's clarifications of '
technical matters dealing with the monitoring of radon releases. We agree.
- 6. EPA requires that "during opera-tions and prior to closure, radia-tion doses from radon emissions from surface impoundments shall be kept as low as is practicable." 40 CFR 192.32 (a) (4) . Criterion 8 would be amended to add this requirement. We agree.
- 7. EPA would apply 40 CFR Part 190 and 40 CFR Part 440 to the management of uranium and thorium, byproduct materials. 40 CFR 192.32 (a) (3) and 192.41. Criterion 8 would be amended to add these requirements.
We agree.
In our view, these are the only amend-i ments to 10 CFR Part 40, App. A which can be supported on the purely legal l
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E theory of required for conformance to EPA's standards.
Part II: Framework For Discretionary Changes The Supreme Court has recently addressed an agency's duties under the Administra-tive Procedure Act when it revokes a rule. Motor Vehicle Manufacturers Association of the United States, Inc.
- v. State Farm Mutual Automobile Insur-ance Company, U.S. , (Decided June 24, 1983) (" Air-Bags Case"). That case is equally applicable to an agency's modification of a rule.
Basically, the Supreme Court held that when an agency modifies a previous position it must provide the same level of reasoned analysis that supported the initial position because that position has become the settled norm. Slip op.
at 10-11. In particular, the agency must consider reasonable alternatives.
Slip op, at 17. Where there are differ-ent technological alternatives for attaining an existing standard, the agency must cogently explain why it has exercised its discretion in a particular manner. Slip op, at 18-20.
For the purposes of these proposed amendments, the " base case" is not the usual "no regulation" situation but must take into account the Commission's Requirements of October 3, 1980. The current suspension of those Requirements ends on April 1, 1984. Unless the Ccmmission amends the Requirements before then, they come back into force except where they are inconsistent with EPA's standards. Those areas of pure legal inconsistency are few, however, because as explained above, the Require-ments for the most part address imple-mentation matters outside EPA's juris-i diction. EPA's standards leave the NRC l
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with substantial discretion in deciding how tho mented.geThus standards are to to comply be the with imple-rule in the Air-Bags Case, the Commission must egplain its choice among alterna-tives Differences in enviro'nmental impacts of alternative regulations are also a factor in the agency's exercise of discretion. Accordingly, a complete record for decision may require some evaluation of those environmental impacts. To the extent that the chosen option is one of several alternatives having significantly different environ-mental impacts, an environmental impact 3
In the Statement of Consideration accompanying its standards, EPA stated:
"The legislative record shows that Congress intended that EPA set general standards and not specify any method of control. 'The EPA standards and criteria should not interject any detailed or site-specific requirements for management, technology, or engineering methods ... ' (H.R.
Rep. No. 1480, 95th Cong., 2nd Sess., Pt. 1, P.
17). UMTRCA gives the NRC and the Agreement States the responsibility to decide what method will sssure these standards are satisfied at specific sites."
4 For example, the radon release limit of 20 pCi/m'/s can be attained by various types of covers ov.er the mill tailings piles. While the range of alternative covers is limited by the longevity requirement of 200-1000 years, the longevity requirement does not limit the Commission's discretion to earthen covers. However, the Commission previously required earthen covers as the best alternative.
Thus, if the Commission wants to change its mind on the need for earthen covers it will have to explain that change.
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statement may be required.$ At the very least, it could be argued that an environmental assessment is required to consider alternatives and to determine whether there age significant environ-mental impacts No new technical documentation has been provided to support the proposed rule.
In part, this may be because the Commis-sion has already published analyses of the alternatives for regulating mill tailings. To the extent that the existing analyses are still valid, the overall evaluation of disposal alternatives to support the choices proposed can be completed by filling in gaps and adding new information.
However, there are some serious deficiencies in the existing documentation. For example, the analysis of the cost for earthen covers 5
The NRC's NEPA regulations provide the Commission will determine on a case-by-case basis whether or not to prepare an environmental impact statement ("EIS") for amendments to 10 CFR Part 40 which are substantive and significant from the tandpoint of environmental impact. 10 CFR 51.5 (b) (6) .
That determination will be based on an evaluation of the environmental impacts of the proposed regulatory actions.
10 CFR 51.5 (c) (1) . Unless the Commission then determines that the proposed amendments to 10 CFR Part 40 are non-substantive impacts, the Commission will prepare either an EIS or a negative declaration and an Environmental Impact Appraisal ("EIA"). 10 CFR 51.5 (d) (3) and 10 CFR 51.5 (c) (1) .
6 Staff has proposed to rely on EPA's environmental analysis to satisfy any NEPA requirements. There are at least two problems with such an approach. First, the Commission is on record as disagreeing with EPA's analytic 1 methodologies for estimating health effects due to radon. !
Second, EPA's analyses address the issue of selecting a radon emanation standard, not an evaluation of alternatives t for meeting that standard. i i
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assumed that the millions of cubic yards of earth would be free. We believe that such deficiencies warrant overcoming the understandable tendency to try to make do with the existing analyses by minimizing the importance of gaps and new developments.
In additiop,.a good argument also can be made th&t Congress expected the Commis-sion to do a better job on the cost / benefit analysis than was done in suppor ments.y ofThe thelegislative October 3, history 1980 Require-of the amendments to UMTRCA includes an exten-sive discussion of the Commission's need ,
to ensure that the costs of regulation bear a reasonable relation to the benefits of regulation. The industry has argued that this legislative history shows that Congress expected the Commis-sion to redo the cost / benefit analysis even if the existing requirements were eventually implemented. We believe that this argument is incorrect because the amendments to UMTRCA fp4plicitly author-ized the Commission t6 enforce the 1980 s
Requirements without further analysis.
However, this defenst against the industry position does not carry over to modified Requirements,, In view of the Congressional concernethat costs be reasonably related to benefits and the high probability of an industry attack on the. modified regulations, we believe s
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7 See, letter of July 25, 1983.from Senators Domenici and Simpson and comment of June 27, 1983 from the American Mining Congress, but see also letter of June 27, 1983 from j Congressman Udall.
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that the cost-begefit analysis should be well-documented Recommendations: (1) Limit the first round of changes to 10 CFR Part 40, Appendix A to the clear legal inconsistencies with EPA's stan-dards; and (2) proceed with separate rulemaking on the discretionary changes which require substantial policy and technical justification. As part of the separate rulemaking, it may be useful to direct the staff to report on the adequacy of the record to support the proposed discretionary changes in the Uranium Milling Requirements the Staff.
This would include determining:
- 1. the extent to which the existing technical record is still valid and supports the choice of implementa-tion methodology from among the available alternatives;
- 2. the extent to which the existing cost / benefit analysis is valid and supports the implementation alter-native proposed; and 8
The remaining validity of the old cost / benefit analyses is called into question by several recent studies on the health effects associated with exposure to radon.
These must be addressed, to determining whether the Commission's evaluation of the value of a cancer-death averted is still valid. Because EPA's standards also include ALARA, 40 192.32 (b) (4) , the cost / benefit analysis may have to go beyond just those alternatives which are sufficient to implement the numerical radon release rate.
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- 3. whether the proposed rule involves significant environmental impacts requiring an environmental impact statement or a lesser environmental analysis would be adequate.
Martin G. Malsch Deputy General Counsel
Attachment:
10 CFR Part 40 Commissioners' comments or consent should be provided directly to the Of fice of the Secretary by c.o.b. Friday, February 17, 1984.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Friday, February 10, 1984, with an information copy to ' the Of fice of the Secretary. If the paper is of such a nature that it requires additional time for. analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
SECY' NOTE : Commissioners are askeRito act on this paper in con] unction with their vote on SECY-83-523. New vote sheets are not being provided, please use the vote sheet on SECY-83-523.
DISTRIBUTION:
Commissioners OGC OPE OCA OIA OPA REGIONAL OFFICES EDO ELD :
SECY < 1 l'
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COMMENTS ON PROPOSED AMENDMENTS TO 10 CFR PART 40 APPENDIX A
- 1. The proposed amendments to Criterion 1 would delete any reference to the unacceptability of active maintenance.
The reason given for this change is:
"The language conflicts with the 40 CFR 192.32(b) standard of design of control measures to be effective for 1,000 years. Further, although 40 CFR 264.111, which is included by reference in 40 CFR 192.32(b), requires that for nonradiological hazards the need for maintenance be minimized, the EPA standard itself is silent on maintenance for radiological hazard control measures and could thus allow some limited reliance on active maintenance for limited periods of time. The 1,000-year period in the preferred alternative far exceeds the 100-year period the EPA views as reasonable to rely on institutional controls to provide active maintenance. On this basis, the Commission would not flatly prohibit, in all cases, planned reliance on active maintenance."
We do not understand the relevance of the comparision between the 1,000 year longevity objective and the 100 year period for permissible active maintenance to protect against non-radiologic hazards.
EPA's standards do not address active maintenance for radiologic hazards since this is an implementation matter. Therefore, as a purely legal matter, it would not necessarily be inconsistent with EPA's standards if NRC Requirements continued to preclude active maintenance for the purposes of controlling radiologic hazards. If the NRC wants to change the status cuo to allow active maintenance for protection against radiologic hazards, such a change must be supported by a technical decision of how the EPA requirements may be met with active maintanence.
- 2. Criterion'3 initially stated that "The ' prime option' for disposal of tailings is placement below-grade, either in mines or specially excavated pits (that is, where the need for any special retention structure is eliminated). EPA's standards, consistent with EPA's limited jarisdiction, do not address such an implemen-tation requirement. This sentence is proposed to be deleted as misleading and confusing. In staff's view, the longevity standard of 200-1,000 years makes durability, rather than disposal mode, the determining i
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The NRC's previous longevity goal of thousands of years also made durability the determining factor, and below grade disposal was the mode determined to best provide such durability. If belcw grade disposal is to be deleted from Criterion 3, the deletion must be supported by a technical decision of how below grade disposal is not the prime option for compliance with the EPA standards.
Criterion 3 would also be modified by eliminating the last sentence, which states:
"In these cases, it must be demonstrated that an above grade disposal program will provide reason-ably equivalent isolation of the tailings from natural erosional forces."
These deletion was justified as inconsistent with EPA's longevity standard. For the reasons discussed above, this justification is inadequate. EPA's standards do not, and cannot, address such implementation matters.
- 3. Criterion 4 initially established mandatory criteria for siting and designing a stabilized tailings pile.
EPA's criteria do not address such implementation matters because they are beyond EPA's jurisdiction.
The proposed rule would modify Criterion 4 to no longer make these criteria mandatory, but only to require licensees to meet the criteria "to the extent necessary to meet the closure requirements in Criterion 6." This flexibility is justified as reflecting the new EPA i longevity standard of 200-1,000 years. l Another reason given for no longer requiring the siting i and design criteria to be mandatory is that the Commission believes that mill operators should be I provided maximum flexibility to devise plans to meet EPA, longevity standards. This is a change in policy from the initial determination that prescriptive rule 1 was appropriate.
'On its face, the proposed changes to Criterion 4 appear reasonable. As proposed to be modified, Criterion 4 l would permit licensee's to choose from among different i stabilization techniques to show that they could meet EPA's standards. Such a flexible approach may be ,
justified as a technical matter by the shortened stabilization period established by EPA. However, a
3 purely legal justification will not support the proposed changes; they must be supported by evidence showing that the EPA shortened stabilization period can ordinarily be met without the mandatory stabilization techniques and by discussion of the policy pros and cons of affording operators additional fler.ibility.
This kind of justification has not been provided. For example, the justification for deleting the requirement that " Topographic features should provide good wind protection" is that engineered barriers (covering the tailings pile with rock) may provide sufficient wind protection for the 1,000 years set by EPA. This kind of tentative statement does not provide an adequate technical basis for rescinding this requirement. While engineering judgment is an acceptable means of support, that judgment must be supported by some objective facts.
- 4. Criterion 6 initially required licensees to stabilize mill tailings piles with an earthen cover at least three meters thick. Because tailings cover is an implementation matter, EPA's standards do not address it. However, EPA has stated that it believes an earthen cover to be a highly effective method for stabilizing tailings, and based the cost-benefit analysis of its standard in part on the use of earthen covers.
Criterion 6 would also be modified by deleting the last two sentences which required that earch used to cover tailings piles be no more radioactive than the surface soils surrounding the piles and not contain radioactive mine wastes. The reasons given for the deletion is that EPA does not impose any characteristics on tail-ings covers. For the reasons discussed above, this explanation is inadequate.
The three meter requirement served two independent pur-poses: (1) attainment of the 2 pCi/m2s radon emanation limit; and (2) attainment of the longevity goal of thousands of years. EPA's increase in the allowable radon emanation rate.and decrease in the longevity goal may make it more difficult to justify the three meter requirement technically. However, it may not be self-evident to a court that the goal of closure for one thousand years can be achieved by a substantially thinner layer of earth. Nor may it self evident that EPA standards can be met without earthen covers.
4 Accordingly, we believe that the requirements for earthen covers and mimimum cover thickness cannot be deleted on the basis of a simple legal argument that EPA's standards compel deletion. Some substantial technical decision is required of how EPA requirements can ordinarily be met without either earthen covers or minimum cover thickness.
- 5. Criterion 12 initially required that "The final dispo-sition of tailings or wastes at milling sites should be such that ongoing active maintenance is not necessary to preserve isolation." The proposed rule would delete this requirement for the reasons already discussed above regarding Criterion 1: EPA's standard permits minimal active maintenance for non-radiologic hazards.
For the reasons already discussed above, this explanation is inadequate.
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