ML20137M747

Discusses Two Alternative Modified Proposed Rules Suggested by Ofc of General Counsel in Response to Proposed Amends to U Mill Tailings Regulations

ML20137M747
Person / Time
Issue date:	03/14/1984
From:	Malsch M NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Gilinsky, Palladino, Roberts NRC COMMISSION (OCM)
Shared Package
ML20136E683	List: ML20136E674 ML20136E756 ML20136F959 ML20137M731 ML20137M739 ML20137M747 ML20137M750 ML20137M757 ML20137M791 ML20137M831 ML20137M840 ML20137M847 ML20137M854 ML20137M861 ML20137M864 ML20137N130 ML20137N172 ML20137N189 ML20137N206 ML20137N225 ML20137N275 ML20137N289 ML20137N296 ML20137N326
References
FRN-49FR46418, RULE-PR-40 AB50-2-07, AB50-2-7, NUDOCS 8512040003
Download: ML20137M747 (5)

Text

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March 14, 1984

~~~~ ~~ - O MEMORANDUM FOR: Chairman Palladino '

Commissioner Gilinsky Commissioner Roberts Commissioner Asselstine Commissioner Bernthal FROM: Martin G. Malsch Deputy General Counsel

SUBJECT:

PROPOSED AMENDMENTS TO URANIUM MILL TAILINGS REGULATIONS (SECY-83-523 AND

-523A)

In response to OGC's comments on proposed amendments to the uranium mill tailings regulations, staff has provided two alternative modified proposed rules. These new proposals and the accompanying discussion indicate to us that the fundamental principle underlying our comments has not been addressed. That principle is simply that where proposed amendments to the NRC's mill tailings regulations involve matters of implementation within NRC's jurisdiction, then such changes cannot be justified solely on a legal theory of necessity for conformance with EPA's standards. Such changes must be accompanied by technical justifications adequate to provide notice and permit informed comment on the bases for those changes. This does not mean that OGC has any views on the technical merits of any of the proposed changes, only that OGC believes that some technical justifigation is required now to provide legally adequate notice Staff suggests that because a proposed rule is not binding, comments supporting OGC's analysis could be accommodated by adopting a substantially different final rule. This is likely to be true. However, there is no good  !

reason why the Commission should issue a proposed rule with an inadequate justification in the hope that somehow no-one i will call this to the Commission's attantion during the ,

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The Commission 2 l:

I Staff replied to this basic point as follows: (1) the

-. " technical evaluation of what is necessary to comply with the EPA standard is not a legal issue"; (2) "on a technical basis most of the originally proposed changes are,not i discretionary"; and (3) the " changes are justified." This may all be so. However, the only justification offered for j these changes in the rulemaking notice is the necessity to i conform to EPA's standard. This is a legal justification

which does not at all address technical merits and, thus, i does not provide adequate notice.

i '

The issue is illustrated by the staff's own example. It

, would be arbitrary and capricious, says the staff, for the j NRC to adopt EPA's new higher radon emanation rate and shorter longevity requirement for tailings stabilization j without modifying the prescriptive technical requirements initially promulgated to implement the Commission's now i superseded stricter standards. This may be correct. But it does not follow as a matter of law that the prescriptive 4 requirements such as an earthen cover and some minimum cover

thickness should simply be deleted. Such changes in the regulations may be technically justified, but the public i will have no meaningful opportunity to comment on such delet{onsifthereisnotechnicalanalysessupporting them I

i

) (Footnote Continued] l comment period. The job should be done right the first time.

2 The staff also suggests that OGC has ignored the

) relationship between the original standards and the

prescriptive requirements to achieve those standards.

However, the example given shows that the relationship is by

no means self-evident. That example is that the 3-meter cover requirement is essentially equivalent to the 2 pCi/m2/s radon emanation rate limit in soil containing 9%

i moisture. What is not stated, is that EPA estimated that for the drier soil in New Mexico, the new 20 pCi/m a /s radon emanation rate would be achieved by an earthen cover of 2.6 meters. Thus, there is no self-evident relationship between the prescriptive criteria and the fundamental standards.

There are many possible regulatory regimes for meeting EPA's standards, and the NRC, as the staff states, must make a (Footnote Continued]

The Commission 3 Staff also suggests that OGC's suggestions for rulemaking

-. will take several years and require extensive resources.

However, this seems inconsistent with staff's firmly stated conviction that its more extensive conforming rul 9 is technically justified. If this is the case, then the essential element of OGC's proposal simply requires the stafftowrjteoutthethoughtprocessthatunderliesits

. conviction. Moreover, of the twelve criteria in the original regulations only a few are proposed to be changed, and the changes requiring some technical justification are limited to:

1. The proposal to delete the prohibition on active maintenance in Criteria 1 and 12;

2. The proposal to delete from Criterion 3 below-grade disposal as the prime option;

3. The proposal to modify the siting and design changes in Criterion 4; and

4. The proposal to delete from Criterion 6 the prescrip-tive requirements.

The staff appears to believe that EPA has authority to establish implementation requirements as part of its tailings standards. OGC does n ments supporting this position.gt And agree with in a staff's recent argu-to letter

[ Footnote Continued]

rational connection between the facts found and the choices made. That rational connection includes technical justifications where necessary.

3 Staff also suggests that OGC's position would relegate to secondary status the extensive environmental work by EPA.

In view of the NRC's comments to EPA on its proposed standards, the Commission could not rely heavily on EPA's record.

fStaffwouldinterpretthephrase"generalapplicdtion" in section 275b of the Atomic Energy Act to mean applicable to all licensees in the same situation and to include the possibility of implementation measures. We admit that this (Footnote Continued]

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The Commission 4 i -

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j Mr. Cannon of the EPA, the Executive Director for Operations

! .. stated that the staff believes EPA's prescriptive i j

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engineering requirements to be contrary to the intent of l Section 84c of the Atomic Energy Act as amended by-Public  !

Law 97-415, the NRC Authorization Act for FY82-83. '

) Moreover, such a view of the statute is directly contrary to NRC's often stated policy objective to be flexible in its case specific reviews. If EPA can issue implementation

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requirements, then NRC will be bound by them (or the levels .

of protection-they represent). In any event, these

arguments are irrelevant for present purposes. As we understand it, the nub of staff's argument is that EPA's I failure to impose implementation requirements renders any

NRC implementation requirements automatically inconsistent t

with EPA's standard simply by virtue of their existence.

However, simple failure by EPA to impose something does not on its face constitute disapproval. EPA silence on an j implementation measure could also signal neutrality, and EPA j neutrality would not by itself. require conforming changes.

j Because the staff has not'provided the level of technical 4 justification necessary to permit informed comment on the ,

proposed substantive changes to discretionary parts of the '

i rule, OGC recommends that the commission approve for publi-cation the proposed rulg contained in enclosure A-2 with the

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following modification:

1 1

! [ Footnote Continued]

j is a possible reading. However, a contrary reading is i 4

equally possible on the face of the language in the statute.

i Moreover, the legislative history supports the view that EPA ,

j is not to-promulgate implementation measures. H.R. Rep. No.

J 95-1480, Part 2, 95th Cong. 2nd Sess. 46 (1978); H.R. Rep. '

l No. 95-1480, Part 1, 95th Cong. 12d Sess 21 (1978). As for i the EPA's implementation provisions regarding groundwater,

{ the UMTRCA explicitly authorizes EPA to promulgate

! groundwater standards consistent with its standards under the Solid Waste Disposal Act.

5 j We believe that staff proposed addition of the i " flexibility" language from Pub. Law 97-415 is a useful 4

addition to the rulemaking, although the same result can be

achieved under 10 CFR 40.14 (a) without any rule change. In j addition, it strikes us that Pub. Law 97-415 already gives (Footnote Continued)

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. The Commission 5 On page 12, in the underlined language proposed to

,. modify criterion 6, delete "at least 3 meters of earth" and replace it with "an earthen."

Finally, we should address the subject of litigative risk.

Good rulemaking requires time and resources, just like good licensing, good enforcement, and just about anything NRC might do. And, in the usual scheme of things, nothing can be done with perfection and zero litigative risk given limited resources and conflicting priorities. But, while it may be cheaper to cut corners in the short term, this " penny wise - pound foolish" strategy has often come back to haunt us. In high visibility rulemakings such a strategy has the real potential to lead to crash efforts to fix things up following a court remand that are far more disruptive and resource intensive than doing things right the first' time.

Moreover, such remands further enhance a reputation for sloppy rulemaking that many associate with the Commission.

Here we are dealing in an area which has attracted considerable Congressional and public interest, has a long history of litigation, involves a severely distressed industry, and has led to a staff conviction that some current requirements are not necessary and may be imposing unnecessary burdens. Shouldn't we give this one our "best shot" and try to do it right the first time? If a technical analysis indicates that we are imposing unnecessary burdens, then let's get on with a technically-based rulemaking to eliminate them, cc: SECY (2) - Please track responses.

OPE (2)

OCA EDO NMSS ELD

[ Footnote Continued]

the Commission considerable flexibility in enforcing its current requirements, even if the more limited rulemaking is adopted.

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