ML20137M757
| ML20137M757 | |
| Person / Time | |
|---|---|
| Issue date: | 04/30/1984 |
| From: | Palladino N NRC COMMISSION (OCM) |
| To: | Asselstine, Gilinsky, Roberts NRC COMMISSION (OCM) |
| Shared Package | |
| ML20136E683 | List: |
| References | |
| FRN-49FR46418, RULE-PR-40 AB50-2-09, AB50-2-9, NUDOCS 8512040005 | |
| Download: ML20137M757 (9) | |
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r-MEMORANDUM FOR: Commissioner Gilinsky Commissioner Roberts N""/ # Commissioner Asselstine F<- Commissioner Bernthal FROM: Nunzio J. Palladino
SUBJECT:
RECOMMENDATIONS CONCERNING MILL TAILINGS The comments received by my office conce'rning my memorandum of April 20, 1984 on this subject indicate agreement with the course of action that was laid out by Commissioner Asselstine and me. Accordingly, I will plan to use the recommendations that I transmitted to you as the basis for preparing the mill tailings portion of my meeting on May 8 with Administrator Ruckelshaus. As I had promised in my Aprf1 20 memorandum, I am circulating three additional documents for your review and , concurrence: -
- 1. Draft letter informing Congress of our intended course of action.
- 2. Draft conceptual agreement with EPA.
- 3. Draft memo of instruction to staff to prepare -
interagency programmatic agreement. . I request that any comments you have on these documents be received by my office no later than COB May 3 so that they - nay be factored into my briefing by the staff on May 4. cc: SECY EDO # OGC ,,WMfy~% g,f
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LETTER TO CONGRESS (OCA TO IDENTIFY APPROPRIATE ADDRESSEES) DEAR MR. CHAIRMAN: AS YOU AND OTHER CONGRESSIONAL OBSERVERS HAVE RECENTLY EMPHASIZED, THERE HAVE BEEN GROUNDS FOR GROWING CONCERN IN THE PAST SEVERAL MONTHS FOR THE COORDINATION OF U.S. NUCLEAR REGULATORY COMMISSION (NRC) AND U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA) REGULATION OF URANIUM MILL TAILINGS. RESPONDING TO THAT CONCERN, NRC AND EPA STAFF HAVE BEEN DISCUSSING WAYS TO CLARIFY OUR RESPECTIVE RESPONS!BILITIES AND IMPROVE OUR t.- COORDINATION. CAPPING THE FIRST MILESTONE IN THAT PROCESS, WE
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R'ECENTLY MET WITH EACH OTHER TO APPROVE THE ENCLOSED CONCEPTUAL AGREEMENT, WHICH SETS FORTH A NUMBER OF INTERAGENCY COMMITMENTS IN THE DEVELOPMENT OF OUR RESPECTIVE REGULATORY ACTIONS IN THE MILL TAILINGS AREA. , A KEY ELEMENT OF THE AGREEMENT THAT WILL ALLOW AN ORDERLY AND NONDISRUPTIVE NRC RULEMAKING PROCESS l$ THAT EPA WILL DEFER THE l EFFECTIVE DATE OF THOSE PORTIONS OF ITS STANDARD THAT ARE GRoutiDWATER-RELATED. WE EXPECT THE COMMISSION RULEMAKING TO TAKE ABOUT THREE YEARS. DURING THIS TIME PERIOD, COGN!ZAflT SENIOR NRC j AND EPA MANAGEMEllT STAFF WILL MEET AT LEAST QUARTERLY TO C00RD!!1 ATE PLAftS FOR MILL TAILINGS-RELATED REGULATORY ACTION, INCLUDiflG DEVELOPMENT OF COORDINATED RULEMAK!NG Af1D
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. 2 STANDARD-SETTING SCHEDULES SPECIFICALLY PROVIDING FOR EACH OTb'ER'S COMMENTS OR CONCURRENCE, AS APPROPRIATE.
REC 0dNIZING THE OVERLAP. PING STATUTORY RESPONSIBILITIES OF EACH AGENCY IN REGULATING COMMINGLED HAZARDOUS AND RADIOACTIVE l LOW-LEVEL WASTES, WE ALSO INTEND'TO ADOPT A COORDINATED APPROACH WITH CONSULTATIVE PROCEDURES SIMILAR TO THOSE OUTLINED IN THE ! AGREEMENT FOR ANY FUTURE NRC-LICENSED LOW-LEVEL WASTE DISPOSAL SITES. . j
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l WHILE WE RECOGN!ZE THAT T.HE DIFFERENCES IN NRC AND EPA STATUTORY l 2 RESPONSIBILITIES MAY TRANSCEND OUR ABILITY TO COPE WITH THEM BY. ADMINISTRATIVE MEANS, WE BEL *lEVE IT IS ;1N THE BEST INTEREST OF THE NATION. AS A WHOLE TO BEGIN ADDRESSING THESE DIFFERENCES IN A WAY THAT RUNS LEAST RISK OF DISRUPTING THE PLANNING OF THE STATES, INDUSTRIES, AND OTHER PARTIES INVOLVED. WE HOPE THAT THE j COOPERATIVE. ARRANGEMENTS WE HAVE OUTLINED HERE WILL ENABLE BOTH AGENCIES TO FULFILL THEIR RESPECTIVE STATUTORY RESP 0flSIBILITIES WITHOUT THE NEED FOR FURTHER LEGISLATIVE ACTION. SINCERELY, l t WILLIAM RUCKELSHAUS, NUf4Z10 J. PALLADir:0 ! ADM!filSTRATOR CHAIRMAN
. U.S. ENVIRONMEf1TAL U.S. fluCLEAR REGULATORY PROTECTION AGENCY COMMISSION l
.0GRAMMATIC f AGREEMENT t DRAFT
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a CONCEPTS FOR INTERAGENCY PROGRAMMATIC AGREEMENT , BETWEEN THE U.S. NUCLEAR REGULATORY COMMISSION AND THE U.S. ENVIRONMENTAL PROTECTION AGENCY > ON URANIUM MILL TAILINGS REGULATION i A MAJOR GOAL OF NRC'S CONFORMING RULEMAKING WILL BE TO DEVELOP REGULATIONS THAT CAN BE IMPLEMENTED BY NRC OR , AGREEMENT STATES, AS APPLICABLE, WITHOUT INVOLVING EPA IN ANY NRC OR AGREEMENT STATE REGULATORY DECISIONS ON MILL TAILINGS DISPOSAL. , 3ASED ON NEGOTIATIONS TO DATE, THE U.S. NUCLEAR REGULATORY [ COMMISSION (NRC) AND THE U.S Env!RONMENTAL PROTECTION AGENCY (EPA) BELIEVE IT IS APPROPRIATE TO PURSUE A PROGRAMMATIC , AGREEMENT TO DEFINE INTERAGENCY RESPONSIBILITIES ASSOCIATED WITH IMPLEMENTATION OF THE SOLID WASTE DISPOSAL ACT (SWDA), AS AMENDED BY THE RESOURCE CONSERVATION AND RECOVERY ACT , I (RCRA), IN THE REGULATION OF MILL TAILINGS DISPOSAL. THIS t t PROGRAMMATIC AGREEMENT WILL ESTABLISH THE FOLLOWING , PRINCIPLES FOR INTERAGENCY COORDINATION ON MILL TAILINGS REGULATION: ! 1. FOR THOSE URAN!UM MILLS CURRENTLY UNDER NRC L.lCENSE, EPA WILL DEFER THE EFFECT!VE DATE IN 40 CFR 192 SUBPART D, AS IT RELATES TO THE GROUNDWATER PORTIONS OF ITS REQUIREMENTS, i UNT!L NRC COMPLETES ITS CONFORMING RULEMAK!NG. THIS I
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J t l RULEMAKING WILL ESTABLISH AT NRC-LICENSED MILL TAILINGS SITES THE NRC REGULATIONS REQUIRED BY STATUTE FOR THOSE HAZARDOUS MATERIALS NORMALLY SUBJECT TO EPA JURISDICTION UNDER THE SOLID WASTE DISPOSAL ACT, AS AMENDED. CONSISTENT WITH THE l REQUIREMENT OF SECTION 814A.(3) THAT NRC REGULATIONS BE "TO THE MAXIMUM EXTENT PRACTICABLE, AT LEAST COMPARABLE" TO EPA
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REGULATIONS IN THIS AREA, THIS DEFERRAL FOR MILL TA! LINGS SITES CURRENTLY UNDER NRC LICENSE IS TO BE NO MORE THAN THE MINIMUM NECESSARY AS DETERMINED BY EPA IN CONSULTATION WITH : NRC. IF NO OTHER OPTIONS ARE AVAILABLE FOR POSTPONING THE' EFFECTIVENESS OF THOSE RCRA-RELATED PORTIONS OF ITS MILL TAILINGS STANDARDS WHOSE IMPLEMENTATION IS TO BE DELAYED FOR EXISTING SITES, EPA AGREES TO PURSUE A RULEMAK!NG TO . ACCOMPLISH THIS PURPOSE. (2) NRC AGREES THAT THE FINAL CONFORMING RULE WILL INCCRPORATE PROVISIONS FOR PROTECTION OF GROUNDWATER THAT ARE, TO THE MAXIMUM EXTENT PRACTICABLE, AT LEAST COMPARABLE TO SWDA REQUIREMENTS. NRC'S FINAL RULE INCORPORATING GROUNDWATER PROTECTION PROVISIONS WILL BE SUBJECT TO EPA ; CONCURRENCE AS REQUIRED BY LAW. AVAILABLE IMPLEMENT!f1G DOCUMENTS, SUCH AS REGULATORY GUIDES, WILL BE GIVEN TO EPA FOR REVIEW AND COORDINATION IN CCNJUllCTION WITH ITS CONCURRENCE. j ,
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3 . rt (3) DURING THE INTERIM WHILE NRC IS CONFORMING ITS
' REGULATION, NRC WILL ENFORCE AT EXISTING NRC-LICENSED MILL TAILINGS SITES THOSE PORTIONS OF THE EPA STANDARD WHOSE EFFECTIVE DATE HAS NOT BEEN DEFERRED PENDING COMPLETION OF THE NRC RULEMAKING. NRC ALSO AGREES TO CONTINUE TO ENFORCE (AND MODIFY AS NECESSARY-) ITS ONGOING GROUNDWATER MONITORING AND MITIGATION REQUIREMENTS AT EXISTING. MILL TAILINGS SITES TO ENSURE PROTECTION OF PUBLIC HEALTH AND SAFETY AND THE ENVIRONMENT. ALSO DURING THIS INTERIM, NRC AGREES TO ENFORCE IN FULL EPA STANDARDS IN 40 CFR 192 FOR GROUNDWATER
. PROTECTION AT ANY NEW URANIUM RECOVERY FACILITIES NOT CURRENTLY UNDER LICENSE.
(4) EPA AND NRC JOINTLY _6GBEE TO COOPERATE DURING THJS. INTERIM PERIOD IN THE DEVELOPMENT OF A DATA BASE.FOR HAZARDOUS CONSTITUENTS AT MILL TAILINGS SITES AS PART OF THE TECHNICAL BASIS FOR NRC'S CONFORMING RULE AND EPA'S CONCURRENCE. EPA AGREES TO PROVIDE TECHNICAL CONSULTATION AND SERVICES TO NRC FOR THE DEVELOPMENT OF THE NECESSARY TECHNICAL SUPPORT FOR THE CONFORMING RULE. NRC AGREES TO REIMBURSE EPA FOR ALL NECESSARY AND REASONABLE COSTS ARISING FROM SUCH CONSULTATION AND SERVICES AS MUTUALLY ESTABLISHED BY THE TWO AGENCIES.
4 -- t (5) EPA AND NRC AGREE THAT, IN ORDER TO ELIMINATE DUAL REGULATION, NRC SHOULD BE ABLE TO APPROVE ALTERNATE REGULATORY RECUIREMENTS SUBMITTED BY APPLICANTS UNDER SECTION 8kC.OFTHEATOMICENERGYACT,ASAMENDED,WITHOUTANY.
. SITE-RELATED SPECIFIC _ EPA CO,NC.URRE,NCE. SUCH ALTERNATE..
REGULATORY REQUIREMENTS ,COULD INCLUDE, AMONG 0THER THINGS, . ALTERNATE CONCENTRATION LIMITS FOR OFF-SITE CONTAMINATION BY HAZARDOUS MATERIALS, ALTERNATE LISTS OF HAZARDOUS MATERIALS, AND ALTERNATE TYPES OF LINERS. NRC AGREES THAT EPA WILL .. . . - CONCUR IN THE METHODOLOGY NRC WOULD EXPECT TO USE IN MAKING
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DECISIONS ON SUCH ALTERNATE -REGULATORY REQUIREMENTS. .- ' -- I-APPROPRIATE PROTOCOLS DEFINING THE METHODOLOGY WILL. .. -.,. BE
.DEV'EL'O' PED A'N'D "J0' INT'L'Y APPR0VED BY $Pk' ND NRC' N S 15iEGRAL
,' PART OF NRC'S RULEMAKING.
(6) EPA AGREES THAT AGREEMENT STATE IMPLEMENTATION OF EPA STANDARDS AT MILL TAILINGS SITES MAY TAKE PLACE PURSUANT TO THE SAME UNDERSTANDINGS AND AGREEMENTS APPLICABLE TO NRC
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LICENSING AND REGULATION. (7) AT LEAST UNTIL THE CONCLUSION OF THE NRC CONFORMING RULEMAKING, THE COMMISSION CHAIRMAN AND EPA ADMINISTRATOR AGREE TO MEET AT LEAST ANNUALLY TO APPROVE COORDINATED REGULATORY PLANS AND DISCUSS ANY ISSUES ARISING FROM
5 IMPLEMENTATION OF ANY OF THE MATTERS AGREED 10 UNDER THE RESULTING PROGRAMMATIC AGREEMENT, WHICH WE PLAN TO INSTRUCT OUR STAFFS TO COMPLETE BY . INITIALED BY: 3 -- WILLIAM RUCKELSHAUS NUNZIO J. PALLADIN0 ADMINISTRATOR CHAIRMAN U.S. ENVIRONMENTAL U.S. NUCLEAR REGULATORY PROTECTION AGENCY COMMISSION
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l MEMORANDUM FOR: William J. Dircks Executive Director for Operations FROM: Nunzio J. Palladino, Chairman
SUBJECT:
IMPLEMENTATION OF INTERAGENCY PROGRAMMATIC AGREEMENT WITH THE U.S ENVIRONMENTAL PROTECTION
. AGENCY ON MILL TAILINGS REGULATIC
Please be advised that all appropriate NRC staff should be instructed to begin preparing an interagency programmatic agreement conforming to the attached conceptual paper, which '~ contains the principles agreed.to at my recent mee. ting with EPA,, Administrator Ruckelshaus.. Mr. Ruckelshaus is issuing these instructions to his staff concurrently. Nunzio J. Palladino
Attachment:
Conceptual EPA-NRC Agreement - i , , . _ _ 1 - e
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ORIGINAL (~ UNITED STATES OF AMERICA gg,b NUCLEAR REGULATORY COMMISSION P.hf( In the matter oft COMMISSION MEETING Discussion'and Oral Presentations on Uranium Mill Tailings Regulations (Public Meeting) Docket No. e
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g% O C. 2 353 '. h o, N g,-{ T ' Location: Washington, D. C. Pages: 1 - 66 Date: Tuesday, September 10, 1985 ANN RILEY & ASSOCIATES Court Reporters 1625 I St., N.W. Suite 921 Washington, D.C. 20006 YO 7ISUh (202) 293-3950
t # e 1 D I SCLA 1 MER 2 3 4 5 6 This is an unofficial transcript of a meeting of the 7 United States Nuclear Regulatory Commission held on Tuesday, a Septa ber 10, 1985in the Commissice's office at 1717 H Street. 9 N . tJ . , Washington, D.C. The meeting was open to public 10 attendance and observation. This transcript has not been 11 reviewed, corrected, or edited, and it may contain
, 12 inaccuracies.
13 The transcript is intended solely for general 14 informational purposes. As provided by 10 CFR 9.103 It is 15 not part of the formal or informal record of decision of the 16 matters discussed. Expressions of epinion in this transcript 17 do not necessarily reflect final determination or beliefs. No 18 pleading or other paper may be filed with the Commission in 19 any proceeding as the result of or addressed to any statement 20 or argument contained herein, except as the Commission may 21 authorl=e. 22 23 24 25
6 # I h i UNITED STATES OF AMERICA NUCLEAR REGUIATORY COMMISSION 2 3 DISCUSSION AND ORAL PRESENTATIONS 4 ON URANIUM MILL TAILINGS REGULATIONS 5 6 PUBLIC MEETING 7 Room 1130 1717 H Street, N.W. a Was hing ton , D .C . 9 Tuesday, September 10, 1985 to The Commission met, pursuant to notice, at 11 10:08 a.m. 12 COMMISSIONERS PRESENT: i3 NUNZIO PALLADINO, Chairman of the Commiscion THOMAS ROBERTS, Commissioner 14 JAMES ASSELSTINE, Commissioner FREDERICK BERNTHAL, Commissioner is IA!OO ZECH, Comtaissioner 16 STAFF AND PRESENTERS SEATED AT COMMISSION TABLE: 17 S. CHILK L. BOGGS te A. THOMPSON R. MESERVE 19 S. WINNER C. SLITER 20 R. YUHNKE D. BERRICK 21 D. FORT S. MEYERS 22 W. PEDERSEN S. TRUBATCH 23 H. PLAINE 24 FROM THE AUDIENCE: 25 R. FON!ER I l 1 i
6 # 2 7
'. 1 PROCEEDINGS 2 CHAIRMAN PALIADINO: Good morning, ladies and 3 gentlemen. Commissioner Asselstine will join us in a d
couple of minutes, but he suggested we proceed without him 5 for the moment. q 6 The purpose of this meeting is to have the 7 Commission hear the views of representatives of the a American Mining Congress, the Environmental Defense Fund, i the State of New Mexico, and the Environmental Protection 10 Agency on uranium and thorium mill tailing regulations. 11 This meeting, which was requested by Commissioner 12 Roberts, should help the Commission reach a decision on the
- - 13 publication of final amendments to 10 CFR Part 40, l
14 conforming to and implementing stability in radon release l i 15 provisions of the EPA final standards for uranium and le thorium mill tailings. j 17 Each group will be allowed ten minutes to present ta its views. I do understand that Mining Congress will share 19 its time with representatives of Kerr-McGee. But in
- 0 advance, let me express our appreciation for your !
21 willingness to come down -- the willingness of each group 22 to come down -- and share their thoughts with us. 23 (Commissioner Asselstine joins meeting.) 24 Are there any additional remarks by other 25 Commissione rs? ,
t # l 3 1 COMMISSIONER ZECH: No. 2 CBAIRMAN PALLADINO: If not, then let me turn to 3 our first spe'akers, the representatives of American Mining 4 Congress and Kerr-McGee. 5 MR. THOMPSON: Mr. Chairman, Commissioners, my , 6 name is Anthony Thompson. I am here on behalf of the 7 American Mining Congress. a I would first like to thank the' Commission for _ l providing us this opportunity to appear before you today. 10 As noted, I am going to surrender and share some of my time , 11 with Mr. Meserve who represents a number of AMC member 12 companies, including Homestake, United Nuclear, and Kerr-13 McGee. 14 At the conclusion of our presentation, unless the , is Commission wishes otherwise, we will be happy to try to 16 answer any questions that may arise. < , 17 The American Mining Congress reques,ted this 18 opportunity to discuss the important questibh' of the 19 respective jurisdiction of NRC and EPA under UMTRCA. As 20 the Commission is now aware, the 10th. Circuit 'has ruled 21 adversely to our position. . 22 AMC continues to believe that it is correct on 22 this basic jurisdictional issue and that the 30th Circuit . 24 decision is wrong. ' 25 AMC is currently exploring with ite member
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- I companies the possibility of petitioning the 10th Circuit 2
for a rehearing en banc or petitioning the Supreme Court 3 In short, the 10th Circuit for a writ of certiorari. d opinion is not a final determination of the jurisdictional 5 issue. 6 I would remind the Commission that certain aspects 7 of the jurisdictional issue are being raised in an a adjudicatory context here at the Commission. Licensees we represent have requested hearings on license amendments 10 incorporating EPA groundwater monitoring requirements. NRC 11 should take no position in this conformance rulemaking 12 proceeding that would prejudice consideration in that
- 13 adjudicatory proceeding.
AMC's position is that under UMTRCA NPC has, 14
- 15 consistent with the traditional division of authority 16 between this. agency and EPA, exclusive jurisdiction within t
17 license site boundaries and determine all management In practices for mill tailing sites. 19 Our position is based on the well-established rule 20 of statutory construction. When Congress uses the same l 21 term in two acts, the same meaning is to be applied in both ni , , 22 cases absent clear and convincing evidence of a contrary 23 congressional intent. 24 In UMTRCA, Congress limited EPA's authority to
', 25 generally applicable standards, a term drawn from the A
t 6 s 5 ! ' 1 Reorganization Plan No. 3 of 1970. We have provided the 2 Commissioners with some tabs that show what the 3 reorganization plan said and what the statutory provisions, l l 4 the language in the statutory provisions of UMTRCA is. l 5 All of the affirmative legislative and 6 administrative evidence confirms that Congress intended to 7 limit EPA's authority in UMTRCA along the lines specified e in the 1970 reorganization plan. 9 There are two good examples of this. Your Office 10 of General Counsel in the original mill tailings case in 11 the 10th Circuit, argued by Mr. Trubatch of the Office of 12 General Counsel, took the very same position that AMC now 13 takes. 14 I quote from the 1981 NRC brief at pages 93 and 15 94. "It is also plain from the legislative history of 16 UMTRCA that Congress intended the Commission to be the lead 17 Federal agency in regulating uranium mill tailings, and 18 that Congress sought to preserve the traditional regulatory 19 relationship between NRC and EPA." The relationship where, 20 again, NRC has not been constrained to wait EPA issuance of 21 general standards. 22 Under UMTRCA, the NRC was designated as the 23 principal regulator of mill tailings, and to be given 24 specific licensing authority over mill tailings while EPA 25 was authorized to promulgate general environmental l l 1
a 6 6 1 standards for mill tailings consistent with its authority 2 under Reorganization Plan No. 3 of 1970. l 3 Again the NRC brief states, "The plain I d congressional understanding was for NRC to be the lead l 5 agency in regulation, oversight, and management of uranium 6 mill tailings related activities, while EPA had the 7 responsibility, consistent with Reorganization Plan No. 3 8 of 1970, to establish generally applicable standards and 9 criteria for the protection of the environment." 10 The relevant pages of the NRC brief are in Tab C. M EPA's general counsel has written a memorandum , 12 that states the same position. EPA's general counsel has 12 acknowledged in a legal opinion that EPA's authority to 12 promulgate generally applicable standards under UMTRCA was, 15 "Modelled closely on comparable authority contained in the 16 Atomic Energy Act as transferred to EPA in Reorganization 17 Plan No . 3 o f 1970. " 1e
=For this reason" -- the general counsel 19 concluded, and I quote - "the concept of generally 20 applicable standards in UMTRCA should be understood,
, 21 therefore, in light of the same term as used in that plan." 22 We have also included that general counsel's 23 opinion. 24 The NRC general counsel now apparently is taking a I 25 position opposite to that taken in the NRC brief to the
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a e 7 1 10th Circuit, and it's our understanding that NRC asserts 2 that AMC's analysis of the legislative and administrative 3 materials on this jurisdictional issue is " Highly selective 4 and misleading." 5 We request an opportunity to respond to the 6 general counsel's memorandum on an expedited basis because 7 we believe the evidence will show that it is the Office of a General Counsel that has been highly selective and 9 misleading in its analysis of the legislative history, 10 UMTRCA, and relevant agency constructions. M In conclusion, if the Commission is unwilling to 12 assert its rightful authority, the result will be either 13 NRC will not be the lead agency /* as your counsel has said 14 UMTRCA intended, and will be nothing more than the 15 equivalent of EPA's water-boy in uranium mill tailings 16 activities, or EPA will be deeply involved in NRC licensing 17 decisions which will lead to endless disputes between the la two agencies. The environmentalists will be involved, and 19 the licensees will be in the middle with everybody taking 20 pot-shots and that, we submit , is chaos. 21 I now would like to turn over the microphone to 22 Mr. Meserve. 23 MR. MESERVE: Thank you very much. I am joined by 24 my colleague Sonya Winter. 25 The position I would like to present to you this i L .. .- . _ _ -
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1 morning is that the 10th Circuit recent opinion in the mill 2 tailings cases confirms that the amended UMTRCA criteria 3 which are before you now contain a fatal legal flaw, 4 mainly, a failure to reflect the necessary balancing of 5 costs and benefits. 6 In order to establish that proposition, I need to 7 take you back in time to when the NRC originally 8 promulgated its criteria in 1980. At that time, the 9 industry petitioners before the loth Circuit argued that 10 the NRC was required to balance costs and benefits in its H promulgation, in the process of promulgation. l 12 The NRC staff responded before the 10th Circuit by _ - 13 stating that it wasn't required to balance, it needed only 14 to determine there was no undue economic burden that was 15 imposed by these standards. In fact, the 10th Circuit in a 16 panel opinion in that case -- which is the panel opinion 17 with regard to the NRC's original promulgation of these 18 criteria -- described the NRC's position as follows: 19 The NRC position is that it is required only to 20 consider the economic feasibility of the regulations, a far l I 21 less severe constraint on regulatory action than a cost-l 22 benefit analysis requirement. And it described what 23 feasibility analysis meant in terms of a challenge to the 24 economic viability of the industry, i 25 Well, as you know, Congress amended UMTRCA in late l I
s r 9 1 1982 and it inserted language in UMTRCA in Section 275 as 2 it applies to EPA; in Section 84 as it applies to the NRC, 3 and it was substantially identical language, requiring both 4 agencies to consider costs and benefits. 5 The 10th Circuit has now interpreted that 6 language. The 10th Circuit has said last week, "We agree 7 with the industry petitioners that the UMTRCA does require 8 a consideration of costs relative to benefits, a cost-S benefit analysis, by requiring a reasonable relationship 10 between costs and benefits. 11 On the specific point of the difference between 12 feasibility analysis -- which is what the NRC has 12 undertaken with regard to these criteria -- and the cost- ! 14 benefit analysis that UMTRCA now requires, the 10th Circuit is last week said the following: 16 " Feasibility analysis and cost-benefit analysis 17 are mutually exclusive approaches. In light of the 12 language of the 1982 amendment to the UMTRCA we must reject 19 the environmental petitioners' argument that control of 2c mill tailings should be as extensive as it's capable of 21 being performed. The amendment foreclosed the EPA's use of 22 a feasibility standard." 23 The bottom line, where we stand right now, is that i 24 the NRC has promulgated criteria which it has defended on i l 25 the basis that it conducted a feasibility analysis, and ; l _ _ _ - _ _ - _ _ _ . . __ __ _
6 P 10 I that is all that's required. 2 And it is absolutely clear from the loth Circuit's 3 opinion that that is not adequate. As a result of the d succeeding amendments of UMTRCA, NRC is required to 5 balance costs and benefits. 6 Now, this point is not an abstract exercise. EPA 7 sought to justify its standards, and it has stated that the e costs associated with its standards were approximately $260 million. Well, the benefits of these -- 10 CHAIRMAN PALLADINO: Who said that? 11 MR. MESERVE: EPA said that in its promulgation. 12 Assistant Secretary Vaughan from the Department of Energy
-- 12 testified before Congress this summer about the costs of
14 stabilizing tailings at active sites. He testified this 15 summer before a joint hearing of the Congress that the 16 costs would exceed $4 billion. 17 We are in a situation now where the mill tailings 18 companies are in very hard straits and the kinds of 19 regulatory requirements that are being imposed on them have 20 threatened to cripple the industry. 21 Now, there are some arguments that have been made 22 to say that you need not comply with the requirements of 23 UMTRCA in your repromulgation of the standards. The staff 24 says on the one hand the EPA considered costs and therefore 25 the NRC need not.
11 1 Well, the fact of the matter is that the language 2 requiring a balancing of costs and benefits applies to both 3 languages, it was put in two separate provisions, one 4 4 directed at EPA and the other directed at NRC. 5 And perhaps more to the point, if you look and 6 observe these regulations and see how much the staf f felt 7 it was required to change them, you will observe that about 8 ten percent of the text has been changed and the remainder, 9 approximately 90 percent of the text, is exactly the same 10 language that the NRC promulgated in 1980. 11 We are in a situation where the regulations, the 12 bulk of these criteria that are before you now, do not 12 comply with the requirements that have been poned on this 14 agency in promulgating its UMTRCA criteria by Congress. 15 The staff has a second argument. Thsy say that 16 NRC may respond on a site-specific basis, it doesn't need 17 to amend its criteria to show that they reflect this 18 balancing that Congress requires, that can be done in 19 individual licensing actions. 20 Unfortunately for that position -- fortunately for 21 the staff with regard to that position -- the legislative 22 history is clear, that Congress intended the NRC in 23 promulgating its criteria to reflect the reasonable i 24 relationship between costs and benefits. That was the 25 purpose of the amendment.
12 1 There are a variety of points in the legislative 1 2 history with regard to the 1982 amendments where that was 3 explicitly discussed and Congress described what it d intended the NRC to do in responding to that amendment. 5 Let me also point out that there was an immense 6 practical problem. The NRC establishes rigid criteria that 7 reflect a feasibility analysis and then says, "We really a don't mean it. In an individual licensing action, we'll 9 look at these again and we'll decide which ones we think 10 ought to apply in the given circumstances." 11 What you are really doing is regulating by , 12 exception. You are establishing a standard. You are l - 12 requiring a licensee to present a stabilization plan and it's going to be measured by the wrong yardstick. 14 is I suggest to you that this just invites 16 litigation. There are many intervenors, for example, in 17 licensing proceedings who are going to take these criteria, 18 read them to mean what they say, and the result is going to 19 be chaos. 20 Gentlemen, I suggest the NRC criteria do not 21 comply with UMTRCA by your own words and, as a result, you 22 are required to undertake balancing costs and benefits that 22 the legislation requires. 24 Thank you. 25 CHAIRMAN PALLADINO: All right, thank you, i
13 1 I wonder if I might ask one question. You implied 2 that the cost-benefit has to be done on a generic basis, is 3 that what you are saying, the cost-benefit analysis? 4 MR. MESERVE: The legislative history is 5 completely clear, I think, associated with the 1982 6 amendments . That Congress was very troubled about the 7 costs of these UMTRCA criteria that the NRC had 8 promulgated . You may recall that they suspended them, or 9 portions of them, on at least two occasions. 10 In the legislation associated and the history 11 associated with the repromulgation of these amendments 12 there were a number of colloquies where Senators asked, 13 "Does this mean that the NRC in repromulgating its criteria ! 14 is going to consider costs and benefits?" 15 In every instance the response as, "Yes, they are 16 going to do so." 17 CHAIRMAN PALLADINO: But you said on a case-by-15 case generic basis. 19 MR. MESERVE: No, this was -- it's clear in the 20 context of the legislative history that this was to be done 21 in a generic basis and that the criteria themselves were to 22 reflect the adequate balancing. 23 We intend, within the next week or so, to submit a 24 legal memorandum to you that will substantiate all these 25 points. It's very difficult in the time allowed to run l I
14 1 through the legislative history. We will be happy to 2 provide you with the evidence to back up these assertions. 3 CHAIRMAN PALLADINO: Thank you. Let me ask if OGC 4 has any comment that they might want to make at this time? 5 MR. PLAINE: Well, do you want to make any 6 comments? 7 MR. TRUBATCH: Well, frankly, I'm -- I start from e asking why are we considering first the jurisdictional S issue now that the 10th Circuit has spoken? 10 As far as the -- let me say for a cost-benefit 11 balance in effect that only ten percent of the Commission's , 12 regulations have been modified. All that was nodified now
- 12 was the things that OGC believed could be modified as a 14 ministerial matter to bring the Commission's regulations 15 into compliance with the EPA standard. !
16 In other words, things like the radar flux limit 17 which went from 2 peco curies per square meter per second la to 20 peco curies per square meter per second were changed, 19 were proposed to be changed to conform to the EPA 20 standard . But all other NRC requirements for which there l 21 still is a matter of judgment remaining, OGC recommended 22 that those issues be left to yet another rulemaking, the 22 one which will also consider the groundwater standards. 1 24 So, to say that the Commission has only changed 25 part of its regulations, that was by design because this is l i
o . 15 I a two-step change that is contemplated. And whether or not 2 a cost-benefit balance is required or a cost-benefit 3 analysis which is somewhat less rigid because, I think, if 4 you read the 10th Circuit decision, they do differentiate 5 between a rigid cost-benefit balance and an analysis in 6 which costs and benefits bear some reasonable relationship 7 to each other. Whether that has to be done or not is a 8 matter of law. 9 If it does have to be done, the time to do it will 10 be in this second round of rulemaking which the Commission 11 contemplated. 12 COMMISSIONER BERNTHAL: Well, but that's a key 13 point, it seems to me -- or at least one key point. I'm 14 not sure I know what all the key points are. 15 A question that I wanted to ask of you, Sheldon, i 16 is whether there is some implication in this court 17 decision, perhaps consistent with what Congress has already 18 said, in the amount of cost-benefit work that this agency 19 would have to do in support of any further regulatory 20 action or, for that matter, whether there is anything to be 21 said about cost-benefit work already undertaken in 22 connection with previcus regulatory action. 23 MR. TRUBATCH: I don't believe that the 24 legislative history is as crystal clear as has been 25 suggested here today. That's something you hear over and j i
16 i 1 over again. 2 Clearly, there are polarized views and they are 3 reflected in the congressional debates. I believe there d are statements from remembrance that indicate that the cost-5 benefit -- that the agencies had -- Congress had recognized 6 that the agencies had already told them that they did a 7 cost-benefit analysis, and there are statements in which at 8 least some congressman indicated that that was sufficient for the existing regulations. 10
- But I think the 10th Circuit characterized M
l legislative history when it looked at the jurisdiction , 12 issue. It just said the legislative history is confused, I i 13 and went on and made a common-sense decision. I think that's what we should be focusing on here. 14 15 CHAIRMAN PAI.LADINO: Okay. Other questions? 16 COMMISSIONER ROBERTS: Well, I would like to hear 17 the Office of General Counsel respond to the allegation
- la that the Office of General Counsel has if not reversed, 19 changed its position.
20 Would you comment on that? l 21 MR. TRUBATCH: Well, first of all, I don't -- I 22 came in late, I'm sorry. My plane was late coming in from i 23 Chic ago. 2d But I did not know what was being compared to 25 what. I heard the brief from 1980 was being compared to l
, . - _ _._--,--_r
-- , . - - - . - + - - - - - - - . -
o O 17 I comething else. I don't know what that something else is. 2 But I will point out that anything that this office has 3 sent to the Commission, we have sent under limited 4 distribution, keep under wraps, and if that's out in the 5 public domain, I think that's an issue that also has to be 6 look ed at , as to why our advice to you, which would form 7 the next round of briefs if this issue comes back to court, 8 is circulating freely. 9 COMMISSIONER BERNTHAL: Surely, you are not to terribly serious. This is the first time that we would 11 ever have attached such great significance to our counsel's 12 briefs being made public. 13 MR. TRUBATCH: No, no, it's not the brief. It's 14 not the brief, it's the -- 15 COMMISSIONER BERNTHAL: Or rather, the advice to 16 the Commission, I should say. Not the brief, or course 17 not. The advice to the Commission. 18 This is not the first time this issue has arisen. 19 MR. TRUBATCH: But these memoranda were never l l 20 asked -- well, were asked for rather late, okay. 21 COMMISSIONER BERNTHAL: I understand. I'm simply 22 making the point -- 23 MR. TRUBATCH: Okay. 24 COMMISSIONER BERNTHAL: -- that I think there is 25 not too big a point. i
l 18 r~ l I COMMISSIONER ROBERTS: (Inaudible) 2 CHAIRMAN PALLADINO: I don't wanted the 3 implication that we treat lightly the advice that we get d from our counsel, and we have actually taken steps to try 5 to determine to what extent and why some of this 6 information does get out. 7 COMMISSIONER BERNTHAL: That's quite correct. We 8 don't treat it lightly but unfortunately, some do. MR. TRUBATCH: On the matter of substar.ce, I don't 10 think that this office has been giving inconsistent advice. 11 CHAIRMAN PALLADINO: Well, I'm not sure that's J - 12
! responsive to the question. Did you not hear what they -. 13 said before when they --
14 MR. TRUBATCB: I heard part of it. I came in 15 late. 16 CHAIRMAN PALLADINO: Do you want to pursue this II one? 18 COMMISSIONER ROBERTS: No. 19 COMMISSIONER ASSELSTINE: Maybe OGC can take a 20 look at the transcript -- 21 CHAIRMAN PALLADINO: Yes. 22 COMMISSIONER ASSELSTINE: -- and give you further 23 response, Tom. 24 COMMISSIONER ROBERTS: I would appreciate it. . 25 CHAIRMAN PALLADINO: Do you have any more
19 1 questions? 2 COMMISSIONER ROBERTS: No. 3 CBAIRMAN PALLADINO: Uim? Fred? d COMMISSIONER BERNTHAL: Well, I have one question 5 and I have to say, I appreciate the chance to sit down and 6 go through this subject because I think it's been one that 7 the commission probably has not kept itself well enough e educated on. 9 That's partly, I think in part responsible for the 10 position we find ourselves in today, and whatever reason we 11 can find to learn more about this issue, which is not one 12 that is often front and center in our considerations, I 13 think, is valuable -- certainly to me and I think to all of 14 us. 15 I'm curious about one point, and this is probably le based more on a vague recollection or hearsay, and perhaps 17 you can confirm or deny this recollection. le Has the industry's position on this issue always 19 been consistent within itself? Rumor has it and, as I say, 20 this is a vague recollection, that in fact at one point the 21 industry was arguing rather differently. That in fact it 22 was satisfied to leave this issue largely within EPA's
- 3 purview and would just as soon not have seen the NRC so 24 actively involved in it.
25 Bas there been a change in your position over the
, 1
e O 20 I
. last few years on that point?
2 MR. BOGGS: Let me answer that question. The 3 position that we have taken, we believe, is consistent. d And the question goes to what are the respective roles of 5 the two agencies. 6 In 1980, coming out of the NRC regulations, we 7 took the position that the Environmental Protection Agency a had to first promulgate its generally applicable environmental standards before the Commission could issue 10 general requirements implementing those general applicable 11 standards . , D The result is that we believe that the
. O Environmental Protection Agency has issued standards which 14 are not generally applicable environmental standards.
15 4 Our position is not incons is tent , it's just now, 16 those are not generally applicable environmental 17 standards. It doesn't affect the role of the two agencies. 18 COMMISSIONER BERNTRAL: So, I see. You r point is 19 that -- 20 MR. BOGGS: The original issue was, who was to go i 21 first. 22 COMMISSIONER BERNTHAL: And their having gone 23 first now, you find their action to be inconsistent with 24 what your interpretation of their legal mandate would be. 25 MR. BOGGS: That is correct. And what we say is, I
21
^
1 is -- 2 COMMISSIONER ROBERTS: Well, aren't you saying 3 that these so-called guidelines you view as regulations? j 4 MR. BOGGS: They are -- 5 COMMISSIONER ROBERTS: I don't mean to put words 6 in your mouth. 7 MR. BOGGS: Okay. No, we view these standards as 8 to violate the requirements of UMTRCA in two ways. First, 9 we believe clearly -- and I'll tell you precisely why we 10 believe it -- that EPA can have no jurisdiction within a . i ! 11 license site boundary. To allow the two agencies in there ] 12 will be chaos, and we think that the Congress clearly said, 13 "We adopt the '70 reorganization plan in that regard." 14 The second thing we say is that EPA has no 15 authority to issue management requirements. Now, anyone 16 that looks especially at the groundwater requirements that 17 have been adopted by EPA leaves the Commission -- those 18 standards leave the Commission as nothing more than a 19 regional administrator of the Environmental Protection 20 Ag ency. j 21 Those standards tell this Commission practically 22 everything it must do on groundwater. Now, the legislative 23 history is absolutely clear, that it was the Congress' 24 intent in terms of regulation of mill tailings, that the 25 Commission be the lead agency. ( i
, __ __-. - , _ , _ _ - . _ _ , - . , , y y
l l 22 1 1 Your general counsel said that in his brief to the 2 10th Circuit and the challenge to the NRC regulations. And 3 the way we come to this conclusion is very simple, and I 4 think this is the important issue that has to be faced on 5 the jurisdictional issues: From whence do you begin your 6 analysis? 7 And it is very clear that the purpose of the a Commission is to uphold the intent of Congress. How does S one determine the intent of Congress? 10 It is very clear that The Mill Tailings Act amends 11 the Atomic Energy Act. It uses it its definition of EPA's 12 authority precisely the same terminology as recognized by 13 EPA's general counsel, that is used in the 1970 14 reorganization plan, which is EPA's only Atomic Energy Act 15 authority. 16 By the use of that same terminology the 17 presumption is that Congress intended the same thing, the le same limits on EPA's authority unless clear and convincing 1' evidence to the contrary is shown. 20 And as the 10th Circuit opinion on this says, at 21 best the legislative history is unclear. We think that 22 statement in the 10th Circuit opinion is absolutely wrong 23 for at each stage legislative determination -- whether it's 24 the House Interior bill which clearly says EPA has outside 21 the boundaries jurisdiction. l
23
, 1 And when you go to the Commerce Committee bill, it 2 is equally clear. The Commerce Committee report quotes 3 from a letter from Mr. Costle to the Committee and tnat l 4 letter says, " EPA retains its jurisdiction under the Atomic 5 Energy Act in both Title I and Title II." i i
6 And then the committee report goes on to say, 7 "This is a satisfactory solution to this very difficult i q 8 problem." j 9 And when one goes to the Senate, it is very clear ! ~ j 10 in the markup of this bill that everyone understood that j 11 EPA's authority was to be outside the boundaries of the l 12 site, and there were no management requirements. 12 There is a statement in the record by Senator 14 Randoloph, a statement that is added to the record. It was 15 not made on the floor of the Senate when the Mill Tailings I l 16 bill went through, it was added to it, that is confusing at j 17 best . It never addresses the issue of inside versus 18 outside the boundary. 19 But it does say very clearly that EPA is to have
! 20 no management authbrity. And other than that, it suggests 21 some authority in the Commission - rather in the EPA, to 22 do certain management functions. As a matte of fact, if 23 you left the -- or if you read the Randolph statement i
24 alone, you would assune that EPA had the lead l 25 responsibility, which conflicts with everything else in the i r l l i
. . l I
24 1 legislative history. l 2 COMMISSIONER BERNTHAL: Well, all other things l l 3 aside, though, isn't it a fact, though, the point you are l d arguing is the point that you just lost in court. 3 Yes, the 10th MR. BOGGS: Let me explain to you. 6 Circuit ruled against us on that issue. We believe that it 7 was wrongly. We intend to seek obvious redress of that. 8 But the point is that that decision is certainly l not binding on the Commission, it was not a party. And the , j 10 Commission has every right to determine its jurisdiction H under the Mill Tailings Act and to make an independent i 12 analysis . 1
-- 13 And if other people want to seek review of that 14 decision, they can. Let me just -- ,
l 9 I 15 COMMISSIONER ASSELSTINE: In other words, we 16 . should take a position and take sued since you guys have l 17 now lost in the 10th Circuit. 12 CHAIRMAN PALLADINO: I think -- 19 COMMISSIONER ASSELSTINE: Larry, I appreciate the 20 arguments you have made, and you have laid out your case. 21 But the fact is, you had the opportunity to lay out that 22 case and you did lay out that case for the 10th Circuit. i 23 The 10th Circuit is hardly a bastion of judicial liberalism 24 and-- 25 COMMISSIONER ROBERTS: That's the second time I l
)
_ _ . . _ _ _ _ - _ _ _ _ _ - - _ - - _ _ _ - . . . . . - - - - . _ , . - . . - . . - . ~ . ,
25 1 heard that phrase -- 2 (Laughter) 3 COMMISSIONER BERNTHAL: Au contraire. 4 COMMISSIONER ASSELSTINE: The fact is, you had 5 your opportunity, you made your case, and you lost. Maybe 6 you'll win on reversal, maybe you'll get en banc review; 7 maybe you get a Cert from the Supreme Court. 8 But at least for right now it seems to me we have 9 a statute that says we are supposed to conform, and in fact 10 we were supposed to conform long, long ago. You yourselves 11 in the hearings that are now on going have raised as one of 12 the arguments against what the Commission staf f has 13 proposed to do the fact that we haven't conformed with the 14 EPA standard. 15 It seems to me we are faced with a decision by the
; 16 10th Circuit. We are faced with a statutory deadline that 17 is long overdue to promulgate these regulations. If in la fact you win at some point down the road, then maybe we 19 would have to reconsider. But --
20 MR. THOMPSON: May I just make one point, though, 21 and I think it is germane to this jurisdictional issue. 22 As we have said, we don't think the system makes 23 any sense if you don't have a boundary line division of 24 jurisdiction, it generates into chaos. The mere fact that 7 25 the words aren't in the statute probably doesn't limit NRC i { l [
l l l 26 ! l l I to inside the boundary, if you want to look at it that way. l 2 But I do think that even the EPA acknowledges that 3 NRC is to have the authority to make the management and d control, technology, compliance decisions. And that fact 5 has really not been disputed by EPA or ruled adversely on 6 by the 10th Circuit. 7 And I think that's going to be a very, very e important issue for the Commission when it considers in this ANPR and subsequent rulemaking the groundwater 10 regulations because EPA in developing its RCRA groundwater
' standards is both the standard setter, that is, the agency ,
U that determines the limits on what kinds of substances can 13 go out; and also the implementer, the person that 14 determines the methods of compliance and the way you go 15 about monitoring and so forth. 16 Therefore, those RCRA standards logically and by 17 definition include a great number of management la requirements. And I think it's incumbent on the Commission 19 -- because I think that's the biggest problem that the mill 20 tailings industry is going to face -- to look very 21 carefully at its jurisdiction with respect to management 22 criteria and control of those decisions because -- 23 COMMISSIONER ASSELSTINE: I don't disagree with 24 that point. But it does seem to me just the safety valves 25 that we have there is the opportunity for case-by-case I l
27 1 review and the opportunity to make case-by-case judgments 2 on what should and should not apply. 3 I recognize that we may have a little different 4 view with EPA on that subject, but I think at least so far 5 the Commission has been pretty clear that in our view we 6 have that case-by-case decision making authority, and I 7 think that's our safety valve. 8 MR. THOMPSON: Well, I think you are going to 9 promote some litigation on that one for sure. 10 COMMISSIONER ASSELSTINE: That may be, but I'd il rather promote litigation on that issue than trying to take 12 a position opposite to the 10th Circuit decision. I 13 MR. THOMPSON: Well, what I'm suggesting to you, 14 though, is that with respect to your groundwater is regulations, looking at EPA's road incorporation of its 16 SWETA criteria, the Commission should exercise judgment 17 about which of those criteria really are appropriate le management criteria for mill tailings because the idea, as i 19 I understand it, was that the groundwater regulations, the 20 SWETA regulations were supposed to deal -- be consistent l 21 with the kind of protection afforded by EPA's SWETA 22 regulations. 23 Now, if the hazards are not as severe as those 24 posed by chemical wastes, then perhaps the management and 25 control requirements need not be as restrictive. And it
28
! I seems to me it's going to be very important for the 2
Commission to look at that aspect and at least assert its 3 jurisdiction on that aspect of the jurisdictional question. 4 MR. MESERVE: Let me make a comment, if I may. I 5 think that it is true and very important that the 6 Commission retain the authority, as it does in its amended 7 criteria, to deal with these situations on a case-by-case e b as is .
- I think the point that we have tried to make here 10 today, that as to this jurisdiction question as it's il
; reflected in the regulations, and as to the cost-benefit ;
4 - ! 12 balancing point, you are also required through UMTRCA to
- --- 13 assure that whatever regulations you promulgate are 1
14 consistent with the act. 15 And as to both this jurisdictional point and as 16 to, certainly, the cost-benefit point, we feel that the NRC 17 has not done that. In fact, this is one point which the 18 industry petitioners did win in the loth Circuit, and 19 specifically that EPA under language which was exactly -- 20 which was substantially similar to the language that is l 21 directed at the NRC, is required to establish a balance 22 between costs and benefits, and you haven't done that in 23 regard to these criteria. ; 24 CHAIRMAN PALLADINO: Well, you have more? 25 l COMMISSIONER ASSELSTINE: No. i I i
i l l 29 1 COMMISSIONER BERNTHAL: EPA has not done that, you ; 2 mean? 3 MR. MESERVE: No, NRC has not done that. 4 COMMISSIONER BERNTHAL: NRC has not done that. 5 MR. MESERVE: We argued that the EPA had not, and l 6 that is on the specific application to EPA standards, the 7 10th Circuit ruled against us. 8 MR. TRUBATCH: But , o f cou rse, the NRC wasn ' t a 9 party to that part of the decision either if it wasn't a 10 party to the first one. I believe that is -- 11 MR. MESERVE: Well, I mean -- I guess the point 12 that we are trying to make, I mean, it's been argued here 13 that the jurisdictional point was decided by the 10th 14 Circuit which -- they disagree with that and we'll seek is further relief as to that point. 16 But it's also true that the cost-benefit point was 17 decided by the 10th Circuit, and it was decided adversely 18 to the position that the NRC took in 1980 as to what it 19 did. 20 CHAIRMAN PALIADINO: Okay. Let me see if 21 Commissioner Bernthal had -- 22 C0MMISSIONER BERNTHAL: Yes, I had one other. If 22 I can depart for just a moment here from the legal part of 24 this question. The Coamission has discussed this lurking 25 issue in the past and I have a feeling will be discussing
.-. _ -. . _ _ , . --. ___ -_ . - - - -_ - ~ . - . .
l 30 1 it in the future, the question of site boundary and whether 2 that is not the practical consideration that we will have 3 to face at some point. d I've attempted to develop some thoughts on what 5 the definition of a site boundary should be. I'm not sure 6 there is any agreement yet within the Commission on that 7 issue. 8 But if that's the key practical issue or becomes the key practical issue on a case-by-case basis, which is 10 where the Commission finds itself right now. And I gather M your principal complaint for reasons I'm not entirely clear 12 Rather, on yet is that we have not made a broad judgment.
-- 13 we have chosen to go ahead no a case-by-case basis.
id l~ I don't necessarily see what's wrong with that in jgEE 15 principle as a practical matter, and leave aside the legal 16 arguments for the moment. As a practical matter, the 17 Commission, it seems to me, can proceed on a case-by-case 1e j basis with some appropriate working definition of " site 19 boundary." l 20 My question for you is, what's so bad about that? i 21 What's the matter with that procedure? l 22 MR. MESERVE: If the Commission were truly going 23 to proceed on a case-by-case basis, I would have no 24 disagreement with you that that would be a way that you 25 could proceed to promulgate -- to deal with this regulatory i l
31 1 problem. _' - -
~
2 The fact of the matter is thac you' do n$t intend l 3 to proceed on a case-by-case basis. . 4 CHAIRMAN PALLADINO: We do - 's '
- r. -
s 5 MR. MESERVE: You do not intend to' proceed on a 6 cas e-by-cas e b as is . - 7 COMMISSIONER BERNTHAL: Why do you say that, Dich? I a MR. MESERVE: You are proposing to promulgate sone 9 detailed requirement. You are' going to say that these are , 10 the requirements, these are the yardsticx by which yd are
!! going to assess what an individual licensee intee.ds to do. -
12 These are the criteria against which we .are going - 13 to judge him. Now, we are going to allow you to depart from them. 14 s s 15 But the fact of the matter is, the standard 16 against which you are being judged is one that dbes not, in 17 our view, comply with GMTRCA. That'N not case by case. i 18 You set -- you are really setting e standard which is an
~
19 inappropriate standard and then saying, "Well, icensees 20 really don't have to comply with them if they can show 21 particular circumstances that it's' justified to deparc. 22 It's sort of -- basically it's sort of regulating - by exception. I 23 The starting point in any licensing 24 proceeding is going to be your criteris. . It,'s not going to . 25 be the particular situations of an individual site andone 1
. j
'4
_a . c-+
l t, 32
' 1 is appropriate given the actual public health and safety j 2
concerns that exist here. 1
' '3 CHAIRMAN PALLADINO: Do you have more? j COMMISSIONER BERNTHAL: No, I think --
)< CHAIRMAN PALLADINO: Yes, let me point out, we've l s 6 gone three quarters of an hour on just the first group, and 7
we haven't given Commissioner Zech the chance yet. 8 COMMISSIONER ZECH: Just a comment. We are J$ talking about a lot of legal and juriadictional matters. I 10 p It seems to me it's inportant that we focus on our NRC
11 responsibilities for public health and safety. That's what ,
~~. :
12 we are really responsible for.
- - - 13 And it seems to me that when we consider those 14
', responsibilities it's also important for us to focus on 15 what are the NRC responsibilities as given to us by to Congress, by the various acts and statutes, and to make
17 sure that we are carrying out and not relinquishing our own
- is responsibilities for public health and safety.
I' ^ To me, that's what I have tried to focus on in 7 ;' 20 this whole matter, and I think it is important that although there are difficulties in defining boundaries and
- 21
. 22 on-site and off-site, I think it is important that we at 23 NRC work with EPA to try to work out understanding so that 24 we can exercise our own individual and joint
. 25 responsibilities.
1
33 : 1 But it is important to me to recognize and to keep 2 in mind as far as NRC is concerned that we have very 3 important and direct responsibilities for public health and 4 safety at these sites. My emphasis will be to focus on 5 that as we go forward with any discussions in this matter 6 to make sure that we are carrying out our responsibilities 7 for public health and safety because that's our primary a responsibility. 9 CHAIRMAN PALLADINO: Okay, anything more? 10 COMMISSIONER ZECH: No. Il CHAIRMAN PALLADINO: Well, thank ycu very much, 12 gentlemen and lady. 13 MR. THOMPSON: Thank you. 14 CHAIRMAN PALLADINO: We will ask now for the 13 representatives of the Environmental Defense Fynd and 16 Environmental Policy Institute to join us, Yuhnke and 17 Berrick. la MR. YUHNKE: Mr. Chairman, my name is Bob Yuhnke. 19 I am an attorney with the Environmental Defense Fund, and I ; i 20 am here today representing not only the Environmental 21 Defense Fund but at the Commission's regt3est the 22 environmental community has selected one spokes person 23 today, and I am also representing the Sierra Club, the l I 24 Environmental Policy Institute, and the Southwest Research , l l 25 and Information Center. i 4
34 i We have two points that we want to focus the 2 Commission's attention on this morning. One is what we 3 feel the very serious need to proceed with the task the d Congress Assigned the Commission of protecting the 5 environnent from uranium mill tailings. 6 This statute was put on the books in 1978 and to 7 this day this program is not being implemented. It's not 8 just a legal issue of deadlines. What we are talking about 9 is a serious environmental problem that is rapidly growing to in the West to the point where we think there is going to 31 be a major environmental crisis. 12 What we are seeing in the West at these uranium
-- 13 tailing sites is contamination at virtually every site for 34 which data are available. The contaminants are leaking 1
from the ponds and they are extending out and reaching 16 groundwater. , 17 In some cases, we have good data. In some cases 13 we have seen contaminant levels that are 15 times above the
'9 EPA drinking water standards in the groundwater.
20 In some cases the contaminant plume, for example, 21 at one of the facilities in New Mexico, has now extended 22 some 2,900 feet from the tailings facility. 23 l COMMISSIONER BERNTHAL: You are talking about 24 radon? 25 MR. YUHNKE: No , we are talking about , at this l l
35 1 point, groundwater. contamination. 2 COMMISSIONER BERNTRAL: Groundwater plume, okay. 3 MR. YUHNKE: Groundwater plune, right. 4 There is 175 million tons of tailings in the West, 5 covering thousands of acres scattered across some 30 6 licensed facilities,17 licensed by the states and 15 7 licensed by the CCmmission. 8 What we don't know is how serious the problem is 9 at a number of other sites where groundwater contamination 10 is not being adequately monitored. 11 In the State of New Mexico where we have the sites 12 with the worst conditions to date, the state has literally 13 been hog-tied by the industry. The state has not been able 14 to proceed with implementation of the EPA standards. 15 The industry has made legal arguments opposing 16 every effort of the state to initiate some implementation 17 of that, and their arguments have turned largely on the la point that this Commission has not yet implemented 19 standards to carry out the EPA general standards for 20 groundwater protection. 21 The same thing has now happened with the 22 Commission's efforts. The Denver District Office, the 23 Uranium Recovery Office, has done a good job. We are very 24 pleased with the efforts of your staff. In that office, 25 they have issued license amendrents which would require ; j l
36
'. I your licensees to begin the monitoring process, to start 2
implementing the EPA standards by at least identifying how 3 serious the contamination is. 4 And even with that initial level, threshold level, 5 of implementation, the industry has filed appeals opposing, 6 in every case, the license amendments on the grounds that 7 this Commission has not yet adopted regulations. a This program is in chaos. The industry has taken 9 every opportunity that the law provides it to interpose 10 delay and to oppose any effort to find out how serious this
' groundwater contamination problem really is. And there are 12 many sites out there for which we do not have adequate
_ _ . 13 data. id The program has got to be moved off the dime. And is that is the most important message we want to bring to you la today. 17 Up until last week, there was the uncertainty la about what the law required. EPA had set out some general i 19 standards and the industry thought that the EPA was 20 tromping on your turf. 21 Our plea to you is to, please, let's put aside 22 these turf battles. Let's have the Federal government 23 start functioning in a cooperative way. And now, that the 24 court has spoken, move ahead and start implementing this 25 program.
37 1 The court has clearly given this Commission the 2 green light. The court's decision is the law until it's 3 overturned, and it's likely to be the only court to look at 4 those regulations. There is not going to be a conflict in 5 the circuits and the Supreme Court is not likely to reverse 6 that opinion. 7 The legislative history is ambiguous, just as the a court said it was. We argued one position. We felt that 7 EPA did not have authority to do cost-benefit analysis. 10 The industry argued for an altogether different cost-11 benefit analysis than EPA did. The court said the agency 12 had to consider costs and benefits, and what EPA did was 13 considered by the court to be adequate. 14 When it comes down to the question of your 15 conforming regulations which are really, at the moment, the 16 next step in this process, the next step towards moving the 17 implementation ball alor.g, I think it's important to keep 18 in mind that what Congress contemolated in this process was 19 conforming your 1980 regulations to the EPA standards. 20 Now, Congress had the opportunity in 1982 to say, 21 let's grab the NRC standards and tell the Commission to 22 start over when EPA has finished its job, and Congress , 23 didn't do that. 24 What they did was to suspend your regulations for 25 six months and during that period to direct the Commission
1 38 1 to identify those portions of your 1980 regulations that f 2 were inconsistent with the EPA program. 3 By statute, your 1980 regulations came back into 4 effect. They are now law. No w , they don't happen to be 5 enough to carry out this groundwater program. And until 6 you break this logjam that industry is taking advantage of 4 7 in New Mexico and with your own licensing proceedings, by 8 finishing the rulemaking process we are going to continue i to see delay, and we are going to continue to see this 10 problem grow. 11 Now, I want to remind the Commission that one of 12 the things that got EPA in the most hot water in 1981 and _ _ _ 13 '82 was failing to carry out the groundwater protection 14 requirements , the Super Fund. And I would suggest to you - 15 that what we have brewing here is the same kind of a 16 potential scandal. 17 We strongly urge you to please move the ball. I la COMMISSIONER BERNTHAL: I think that's a gross 19 l overstatement, and I want to get on the record as saying 20 that there is nothing remotely resembling the Super Fund 21 issue here. This has been a legitimate and much too on-22 going -- I will grant you -- dispute over agency 23 jurisdiction. There has been a lot of indecision and 24 perhaps too much slowness attached to that. 25 But it does involve congressional directive that
. . _ - - _ _ . . . _ . . . ,. - . , - --- ,-- . . - , - , , , - - - , ~ ~ ~ - - ----,-r-, ------ -mm- **'----v v-"^+-~" - - ~ - - ~ ~ ~
39 I has been ambiguous at best. I don't think the parallel is 2 justified. 3 CHAIRMAN PALLADINO: Let me ask you, are you going 4 to share time with Mr. Berrick? 5 MR. YUHNKE: Well, Mr. Berrick is here to help, I 6 think, respond to questions. 7 The other point that I wanted to focus on today is a the need for the NRC to proceed with the rulemaking 9 process, to fill in the gaps -- the gaps left by the EPA 10 prog ram. 11 CHAIRMAN PALLADINO: By the which? 12 MR. YUHNKE: By the EPA standards. The EPA 13 standards are generic in that they apply across the board 14 to all sites. But they don't answer some of the most 15 significant regulatory problems. 16 One of the most important of those is the decision 17 of when the radon control should be put into place. What 13 we now have in the industry are 16 sites that are 19 indefinitely, or have been indefinitely, shut down. Some 20 of these sites have been shut down since 1981, for as long 21 as four years. 22 Many of them appear unlikely to re-open. And what 23 we are facing as a result of this is a significant increas e 24 in the riska to people living around the piles resulting 25 from radon. 2 l l l
O 9 40 i 1 Both the Commission in your 1980 rulemaking and 2 the EPA in its rulemaking indicated that the risks 3 increased by approximately a factor of two as these piles d dry out. As the water that is deposited with the tailings 5 into the ponds evaporates, more and more radon is released 6 to the atmosphere. 7 In addition, as the tailings dry, they become a subject to wind-blown dispersion which becomes also a 9 significant risk outside the area of the site boundary. 10 Now, with these piles, many of them actually 11 having reached the point of dryness on the surface, what we 1 12 are facing is a significant increase in the public health I _. 12 risks associated with these piles. 14 But one of the points that EPA clearly decided not is to address, a point that EPA felt was clearly within the 16 Commission's jurisdiction and not within its own is this 17 question of when do you begin the installation of the radon la controls . 19 Now, given the fact that there are 16 piles out 20 there that are rapidly drying out, we think it is essential 21 that the Commission develop some policy, some guidance for 22 the field office to begin to take action to protect the 23 public from these risks. 24 The risks that we are talking about from a wet 25 pile are approximately one in a hundred, a risk of lung
41 I cancer to nearby residents. These are people living in 2 homes outside the tailings piles. 3 The increased risk, af ter drying out, brings that 4 down to one in fifty. These are probably the highest risks 5 for individuals living near facilities of any facility that 6 the Commission now regulates. 7 Your standards for nuclear power plants and other a facilities do not allow anywhere near these kinds of risks, l 9 and we think that it is incumbent upon the Commission if to you intend to carry out your responsibilities to protect 4 11 public health, to address this as one of the most serious j 12 problems facing you. i 13 In addition ~~ ( l 14 CHAIRMAN PALLADINO: Do you have any other points j 15 you want to make quickly? l 16 MR. YUHNKE: The one other point -- l 17 CHAIRMAN PALLADINO: You are over time. 18 MR. YUHNKE: Just quickly, I will summarize it -- 19 CHAIRMAN PALLADINO: In one minute. 20 MR. YUHNKE: -- is that the EPA details 4 21 requirements for carrying out a groundwater monitoring and 22 clean-up program have not been incorporated into the EPA 23 standards here. So, there are details of the process that 24 need to be filled in by the Commission, and that is 25 som= thing that you will have to do if you are going to move 1
- - ~ _ _ - _
42 r I forward with the groundwater protection program. 2 CHAIRMAN PALLADINO: Okay, thank you. 3 Something you said reminded me that I was told 4 just before I came in that the Denver Office is listening 5 in by telephone, and so is Region IV. Is that correct? 6 i MR. CHILK: It is, sir. 7 CHAIRMAN PALLADINO: They can listen, but they 9 c an ' t speak . 9 COMMISSIONER ASSELSTINE: Good. l 10 MR. YUHNKE: I hope that's not always the case. Il
- CHAIRMAN PALLADINO
- Not always the case. ,
4 12 COMMISSIONER BERNTHAL: It sounds like it's been 13 ar rang ed . 14 MR. YUHNKE: Well, we would like them to know that 15 we are pleased with their efforts. 16 CHAIRMAN PALLADINO: Well, thank you. 17 I have no questions at the moment. Do you have la any questions, Tom? Jim? 19 COMMISSIONER ASSELSTIbE: I don't, either. A very 20 good statement, though, I appreciate it. 21 MR. YUHNKE: Thank you. 22 COMMISSIONER BERNTHAL: One question. I'm curious 23 on getting -- I'd like to get some kind of benchmark as to 24 the extent of the risk as you see it here. 25 Have you any benchmarks that you can compare the i
i 43 s 1 nature of the risk in the vicinity of these tailing sites 2 with other risky sites in the U.S. including , for example, 3 I'm thinking of the recent discovery in the East here, in d Eastern Pennsylvania, running on up into New Jersey of 5 really surprisingly high radon risks from natural sources 6 of radon emission in houses that have been tightened and . j 7 All conservation measures have been taken. 1 j 8 - What are we talking about here? Is there a 9 comparative - qualitative comparison that can be made? 10 MR. YUHNKE: Yes, I think there are some very 11 important comparisons. l Included in the written statement 12 that we have submitted to you here today, and also in our ! I d 13 earlier comments on this rulemaking, we have included an 14 assessment prepared by a researcher at the School of Public 15 Health at Harvard, Dr. Julie Overbaugh, who prepared an j 16 assessment of the risk literature for radon as part -- for 17 your consideration in this rulemaking. l 18 One of the things that Dr. Overbaugh points out is 19 that these risks have been identified by, or have been
- 20 confirmed recently, by new research that was done among j 21 iron miners in Sweden where the levels of radon exposure l
22 were very near the ambient levels that we are seeing l ! 23 measured around tailings piles. l 24 So that while before 1984 when this latest piece i 25 of research was published, most of the risk estimates were i
. , _ _ . - , . - . . _ _ . , , - . . , . . _ _ _ _y. .__ . _ _ _ _ . , . _ , _ _ . . , , . . ~ - - . . - , , _ , , , - , - , _ _ .. _ . . - . - _ _ _ . _ . , . _ . , . , _ .
44 I based upon extrapolations from much higher exposures among l 2 uranium miners. We are now seeing similar risks among 3 persons who are exposed to much lower levels of radon. 4 Now, for purposes of comparison, when we talk 5 about a one-in-fifty risk of someone living near a tailings 6 pile, that compares with a one-in-twenty-five risk for a 7 heavy smoker. 8 COMMISSIONER BERNTHAL. That was the next question 9 I had. 10 MR. YUENKE: All right. And approximately a one-
" in-2,000 risk of lung cancer for someone who does not smoke ,
12 and does not live near a tailings pile. 13 COMMISSIONER BERNTHAL: So the risk for those 14 living near the mill tailings sites is roughly comparable 15 to that for someone who is a smoker. That's roughly -- 16 MR. YUHNKE: A heavy smoker. 17 COMMISSIONER BERNTHAL: Yes, okay. 18 MR. YUHNKE: That 's right. ) 19 MR. BERRICK: Given this period that we are 20 talking about, this interim period. ,' 21 MR. YUHNKE: Right. And it's a function, then, of 22 how many years the exposure continues. 23 COMMISSIONER BERNTHAL: Sure. 24 MR. YUHNKE: That's one of the things that we are 25 concerned about is making sure that the exposure does not i l l
e i 45
" I continue for an extended period.
2 Eut in some of these cases, for example the Uravan 3 facility of UMETCO, the mill has been in operation for 35 4 years and portions of the pile have been in a drying state 5 for many years. 6 CHAIRMAN PALLADINO: They are not covered? 7 MR. YUHNKE: Without cover, right. And they 8 propose to continue to allow it to dry for another few 9 years before any covering activity is commenced. i , j 10 I am very familiar with that one because we have l 11 been involved in the licensing proceeding with the state. When you say " ambient 12 COMMISSIONER BERNTHAL: 13 levels," are you talking about levels measured primarily in 14 dwellings , or what does that mean? 15 MR. YUHNKE: Well, the risk that EPA calculates , 16 it counts for the fact that someone lives in a dwelling and 17 that there is infiltration of the radon from the outdoor 18 air into the dwelling. 19 COMMISSIONER BERNTHAL: But I'm asking about 20 actual measurements in these areas. 21 MR. YUHNKE: The measurements, as far as I know, 22 that have been taken have been taken in the ambient air, 23 not in dwellings. 24 COMMISSIONER BERNTHAL: And how do those compare, 25 for example, with the measurements in dwellings that were i t
. J' .
i 46 l 1 taken in Eastern Pennsylvania and New Jersey; do you have 2 any idea? 3 MR. YUHNKE: Yes, I have taken a look at the 4 Pennsylvania data, and there are cases in Pennsylvania 5 where the exposures are one-hundred times higher than in i 6 some of the instances around the piles. 7 Yes, that's what I COMMISSIONER BERNTHAL: 8 thought. 9 - CHAIRMAN PALLADINO: Okay.
- 10 COMMISSIONER BERNTHAL: Thank you.
11 CHAIRMAN PALLADINO: Commissioner Zech? l 12 COMMISSIONER ZECH: No, no questions. Thank you. 12 CHAIRMAN PALLADINO: Okay. Well, thank you, Id gentlemen. 15 I wonder if we now might have Denise Fort, the 16 State of New Mexico, join us at the table. 17 MS. FORT: Good morning, in my " hog-tied" position is here. I don't care to have the state described in that 19 fashion, but I'll comment on how I see us -- 20 (Laughter) 23 MS. FORT: I guess there is some -- we are 22 certainly having difficulties carrying out our regulatory 23 program at this time. I concur to that degree. 24 I'm the director of the state's Environmental 25 Improvement Division and very much appreciate our i i
. _ , _,c - . - - - - - - - ,_- -
47 ! 1 1 opportunity to appear before the Commission. 2 The decision you reach on this matter is proba .y 3 of more importance to New Mexico than any other state 4 because we have about 45 percent of all mill tailings l 5 within our state. We are an agreement state. 6 We discussed this subject at the requust of the 7 agreement state staff with the three other agreement a states, and all support quick action by the NRC to 9 promulgate final regulations for tailings disposal. 10 I'm going to just make reference to my written 11 testimony and not refer to all of it. 12 The existing and past problems that we are 13 experiencing at our tailings sites demonstrate the need for 14 isolation and stabilization of mill tailings materials. ) 15 All five of our active tailings sites have groundwater 16 contamination problems that have necessitated remedial or l 17 preventive measures. And as you know, " active" is kind of i la a misnomer here. In fact, none of the mill sites are in 19 current operation with the exception of the small amount of 20 actitity at the Homestake site. 21 Two of the sites have been placed on the national l 22 priorities list under the Super Fund program because of 23 groundwater contamination problems. And , in fact , EPA is
- 24 now under the Super Fund program looking at radon 25 contamination in homes adjoining one of the sites at the
48 r i 1 Homestake tailings pile. 2 Major dam failures have occurred at these same two 3 facilities, and in one case caused contamination of more d than 70 miles of river, including areas in the adjacent 5 site of Arizona, and that was the Church Rock tailings 6 spill. Blowing tailings material has been observed at each 7 of the active sites in New Mexico. 8 We support the incorporation by NRC of EPA's general environmental standards into your requirements for 10 uranium mill licensing. We have independently conducted
" legal research into the question of whether the EPA ,
12 standards for active tailing sites are now legally in
'3 effect and must be enforced against licensees of NRC in the 14 agreement states.
- 15 We concur with the cenclusion reached by your NRC 16 counsel that under 42 USC, Section 20, 22(d), NRC and the 17 agreement states have both the power and the duty to 13 enforce EPA's active site standards, at least to the extent IS thus far prescribed in NRC memoranda to the agreement 20 states.
1 However, the uranium industry is vigorously 22 resisting the implementation of the EPA standards in this 23 fashion, and we urge you to move forward as quickly as 24 possible to adopt the standards into NRC regulations. i ! 25 The EPA general standards for uranium mill , I l
49
' I tailings are necessary to protect human health and the 2 environment and generally adequate from the state's 3 perspective. We view them as a reasonable compromise 4 between the very lax requirements which were advocated by 5 the uranium industry and the even more restrictive 6 requirements originally promulgated by the NRC in 1980.
7 Whether we agree with the EPA standards or not, l 8 however, New Mexico believes that Congress has clearly I 9 expressed its intention that, with certain limited j 10 exceptions, the generally applicable EPA standards should 11 be adopted in force by NRC in the agreement states. 12 We do not believe the Commission is at liberty to i 13 substitute its own judgment for that of EPA insofar as the 14 substance of the standards is concerned. Under the 15 statutory framework established by Congress at 42 USC, 16 Sections 20, 22(b) and (d) , EPA has been given the primary 17 standard-setting role, while the task of NRC and that of 1 > 18 the agreement states is to implement and enforce EPA's to standards with due regard to special considerations that 20 may be appropriate for special sites and licensees. i 21 Consequently, we see that the NRC and the 22 agreement states are basically in the position of adopting 23 and enforcing EPA's standards. We do not agree that there 24 are serious unresolved disputes as to the appropriate 25 jurisdictional boundaries between the NRC and EPA. t
50 1
#. . We think that Congress has taken considerable care to specify the respective roles that each had played, not 1
3 only in the original 1980 UMTRCA legislation but also in 4 subsequent amendments to that legislation. i 5 We do in those very few areas of dispute agree 6 with NRC staff's position that NRC does have some 7 jurisdictions, as in the review of individual licenses and a disagree with EPA on that.
' . Turning to why we are here today and why all this 10 makes a dif ference. We agree with the American Mining 11 Congress that the regulations are of critical importance at ,
12 this time because most of the domestic uranium industry is
, - . 13 shut down.
14 We have companies which are now requesting final l 15 approval of their reclamation plans, and we need definitive 16 Federal requirements for review and approval of such 17 plants. la We also need promulgation of these final l' requirements because we are looking at the potential 20 abandonment of tailings sites by licensees. The 1978 21 legislation placed responsibility for the tailings I 22 reclamation control at the active site on the licensee. 23 The intended mechanism to ensure proper disposal and 24 reclamation was: 25 1. The adoption by the EPA and NRC agreement 1
51 i i I states of appropriate standards and regulations for 2 disposal and, 3 2. The requirement by NRC or the agreement state 4 of adequate financial sureties. 5 We are afraid that the intended mechanism may fail 6 due to the delays in promulgation of final definitive 7 Federal requirements and the current state of the industry. e Let me ask you to refer to the last table that we 9 have presented. What we have done there is, done a 10 comparison of the financial sureties versus the estimated 11 costs. And then, in the second column, what we have used 12 for estimated costs are the fairly moderate S3.75 per ton 13 of tailings that DOE has used in the past. 14 Now, when DOE appeared before Congress and its 15 recent testimony on tne proposed Federal legislation in 16 this area, they have used a 54 billion figure if one 17 assumes that about half the tailings are in New Mexico and i 18 the $2 billion would be an appropriate number, then our to sureties that we are using of $35 million can't even be 20 called a drop in the bucket. They are not even significant 21 in any amount. 22 This Commission provided information to the 23 General Accounting Office with information about tLe sort 24 of sureties which you have required from your licensees, i 25 and I would say that those numbers also appear, the amount l l
52 l I which you have under surety also appears very low and may 2 amount to half or less of the projected clean-up costs. 3 From a state perspective financials , you may be 4 asking why as a state regulator I am sitting here and 5 showing you that our sureties are so much less than what 6 any reasonable estimate would indicate they ought to be. 7 The state is in a difficult position in the a absence of some sort of definitive Federal regulations to 7 refer to. We don't feel because our state regulations are 80 a great deal less stringent than the proposed EPA /NRC 11 standards, we don't feel that we can proceed to rulemaking , 12 until we know to what we ought to conform as an agreement 13 state. 14 So, we are unable under the current state of our is law to require greater sureties. We will, as reference has 16 been made, we could attempt to say that the EPA standards 17 are now in effect, as we have been informed as agreement la states. But we are sure to face legal challenge by the l' industry in doing so. 20 So we have basically felt that we should wait in i 21 adopting conforming regulations until we know what NRC's l 22 position is going to be and to what we ought to conform. 23 We believe that the issue of cost to the EPA 24 standards fcr tailings disposal should not be considered by 2$ the Commission -- again because we think that you are bound
53 1 by congressional action in looking at the EPA standards. 2 The current state of the uranium market will no 3 doubt affect the ability of some licensees to pay the cost 4 of reclamation and clean-up. For that reason, and as we i 5 look at the fact that these regulations are being 6 promulgated in sone instances 20 to 30 years af ter the 7 Uranium was actually milled, we are supporting legislation J 8 before the United States Congress which would assist and, j 9 we think, fairly apportion the cost of clean-up. But while 10 we are supporting that as vigorously as we can in another l 11 form before the U.S. Congress, we don't think that ought to 12 enter into the consideration of the standards which are - 13 adopted. I 14 In conclusion, we believe that promulgation of 15 definitive Federal regulation governing reclamation is long l 16 overdue. Recent closures of most of the uranium mills in , 17 New Mexico and throughout the United States have made it la critical that both industry and responsible regulatory 19 agencies know where they stand with respect to reclamation 20 requirement. 21 Financial sureties are also inadequate and should 22 be revised soon af ter promulgation of the reclamation 23 requirements. 24 That concludes my statement. I would urge your 25 prompt adoption of the final rule to be promulgated as soon i
l l 54 j
. I as can be. Thank you.
2 CHAIRMAN PALLADINO: All right, thank you . 3 When Mr. Meserve -- no, I'm sorry. When Mr. 4 Yuhnke was speaking, he pointed out that a number of mill 5 tailings piles were drying out and son.e of the fine 6 particles were being blown off-site. 7 Is that a problem that you see in New Mexico at a the present time? 9 MS. FORT: Well, it certainly -- I would say from I to the state's perspective, we are becoming increasingly 11 convinced that groundwater contamination is really a 12 greater issue. So, of course the same factor which is 13 desirable for preventing further groundwater contamination 14 is not desirable for some sort of rough stabilization. 15 There are not a lot of people who currently live 16 near tailings piles, though there are exceptions like the 17 Homestake pile where there is an area nearby. te But because the piles are not stabilized, all we
- 19 are doing by permitting them blowing around the countryside l 20 and so on is making the eventual cost of stabilization 21 higher as the material has to be retrieved from wherever it 22 has blown to and put back on the pile.
23 CHAIRMAN PALLADINO: You have answered my second 24 question, which did you see as the bigger problem, the 25 groundwater or the particles blowing around.
; i
55 l
' Have you found significant contamination?
i 2 MS. FORT: As I had mentioned, two of the sites 3 are currently on EPA's Superfund list and EPA has felt, and 4 we felt -- we nominated them for inclusion and felt that 5 the problems there were significant enough to warrant 6 Superfund treatment. 7 If a public water supply becomes conto.minated, the a cost of reclamation of that water supply are enormous. So
, we think that is very significant.
to I think some mention has been made of the term it " boundary," and how that might apply. We in ou r g round 12 water regulations basically measure contamination at the i3 boundary. By acquiring additional land, of course, the i4 company is able to say that the boundary spread further and i' i3 further, and in fact we were in a enforcement action with ic the company which was essentially -- tne company want and 17 just moved the bound.ry in essence by acquiring some
- 1s further land.
i
., Again, it is so ironic that the very action that i 20 one would want from the point of view of radon control,
;i which is acquiring as much land as possible and keeping the 22 site as isolated as possible when one comes to apply 1
23 groundwater regulations, really doesn't work very well 24 because you know that the contamination -- assuming the 25 modeling supports this -- one knows that the contamination
, , . , _ ,. _ _ _ _ _ _ . _ _ . _ - - . . - - , _ , . , . ,-- - - , . _ . . . , _ ~ ,
56 > o 1 will eventually move offsite, but regulatory action under 2 our State regulations may be stayed until the contamination 3 has moved. 4 So I regard that kind of boundary as somewhat an 5 artificial device in our attempting to regulate for the 6 long haul. 7 CHAIRMAN PALLADINO: Okay. Thank you. 8 Commissioner Roberts? 9 (No response.) to CHAIRMAN PALLADINO: Jim? 11 COMMISSIONER ASSELSTINE: I don't have any 12 questions, Denise. Maybe just a comment. I think if i3 anything is clear about the Mill Tailings Act right from a the outset, and I will admit there are a lot of things is about it that aren't clear, the one thing I think that is is clear is the whole purpose of the Title II program was to 17 ensure that for the active sites, those that had current is licenses, that we wouldn't get into the kind of mess that 19 we had for the old abandoned sites, that is with companies
- o that had walked away with the tailings in an unstabilized 21 condition and not having anyone who was financially 22 responsible or be able to identify the money or someone who 23 had the liability and responsibility to clean up the 24 tailings piles and put them in a stabilized condition.
25 I think if anything is clear, it is that the Act e
. . ,, , ,_ _ _ - , .-.___c
57 I e i was directed to make sure that for the active sites that
- never happened in the literature.
3 And I think your point on the comparison of your 4 ability to put aside funds and, indeed, our ability to i 5 assure that the funds will be there to pay for the cleanup 6 and the present situation in the industry with many 7 financial entities saying we are basically through with I i a these operations and want to walk away from them now 9 presents a real danger.
, io To come back to the point that Commissioner Zech ti raised earlier, this is a health and safety matter, and I 12 think if we had the situation in the next few years of i3 companies walking away from these sites and the money not i4 being there to pay to clean them up to an adequate level, is we are all going to have a lot of explaining to do.
a l 0 i; MS. FORT: I appreciate that. I think the is comments to the General Accounting Office's report on this i, subject, which was prepared with the NRC's information, 20 certainly indicates companies where you have already got
- numbers in parens indicating there is already a loss 22 situation for the companies which are involved there. We 23 also have a number of licensees operating through i
24 subsidiaries, which puts us at some risk in attempting to
;3 enforce obligations against the parent corporation, and l
j l
58 1 i there are too many instances like that where I think 2 questions will be asked in the future of whether or not the ) 3 regulatory agencies were awake in essence when they should 4 have been. 8 5 CHAIRMAN PALLADINO: Any more? 6 COMMISSIONER ASSELSTINE: No. 7 CHAIRMAN PALLADINO: Fred? s COMMISSIONER BERNTHAL: Well, I just want to 9 congratulate the State of New Mexico for their I i l 10 Environmental Improvement Division. It seems to go one 11 step beyond what the Federal Government has attempted' and l 12 perhaps the shoe fits in this particular area. i) Is there an Environmental Protection Division? 14 MS. FORT: No, there is not. We are improving the is environment, but I am not sure how our environment can be 16 improved in those lovely mountains, but that is what we are 17 abou t . 4 is CHAIRMAN PALLADINO: Thank you very much. to Oh, Commissioner Zech, do you have any questions? 20 COMMISSIONER 2ECH: No. Thank you very much. 21 Appreciate it. 22 CHAIRMAN PALLADINO: All right. I wonder if we 23 might have Mr. Sheldon Myers of EPA and colleagues. 24 MR. MEYERS: Mr. Chairman, members of the 2s Commission and Commission staf f, my name is Sheldon Meyers l
l o .
- 59 i and I am the Acting Director of EPA's Office of Radiation 2 Prog rams . ,
l 3 With me today on my right is William Pederson, who 4 is a senior attorney in our Office of General Counsel, and 5 the gentleman handing out all the papers is Dr. Stanley l 3 Lichtman, who had a major role in writing the mill tailings
~
7 regulations . s I would like to make a very short statement, and
, it is as follows.
to When the American Mining Congress first asked for
- this hearing on jurisdictional issues related to EPA's -
~
12 standards for licensed uranium mill tailing sites, those i3 very same issues had already been thoroughly aired before i, the appropriate authority for deciding them, and that was is the U.S. Court of Appeals for the loth Circuit. l 16 We now know that the 10th Circuit Court last week 17 unanimously, and I repeat unanimously decided to uphold is EPA's position on every contested issue concerning licensed i, mills. 20 This Appeals Court ruling covers move than l 21 ju risdictional issues. The Court also upheld EPA's 9 22 Position against industry claims that the standards are i 23 unjustifiably stringent and against arguments by States and I environmental groups that they were not stringent enough. 24 25 The Court has remanded to EPA for reconsideration , l i
.. Y.
,r,
,' 7' 60 j 1 only a single issue which involves groundwater protection 2 requirements for inactive sites.
~
3 The jurisdictional issues that prompted this
- 4 hearing have been resolved by the 10th Circuit. We believe 7, s it appropriate now that the Commission proceed with the 6 rulemaking necessary to implement and enforce the EPA 7 standards.
a I want to note with a good deal of satisfaction 9 that our respective staffs have worked well together on to this subject for many years. We stand ready to continue 11 cooperating towards achieving the effective oversight of 12 uranium mill tailings that Congress intended the Act to _ is p ro vide . 14 Mr. Chairman, for your information and convenience is we have distributed various documents to you. One was the 16 recent rulemaking notice concerning implementation of our 17 standards, the government briefs in the loth Circuit case is and the Court's decision. 19 Thank you. 20 CHAIRMAN PALLADINO: Thank you. 2i Let me ask you, did you have any specific comments 22 on the proposed action that the commission would be taking 23 if it approved the staff's approach? 24 MR. MEYERS: We did submit comments in writing to 2s you. I
o O 61 i 4 CHAIRMAN PALLADINO: And what is your general 2 reaction to what is being proposed by the staff? 3 MR. MEYERS: Well, we: had some concerns which are 4 outlined in the statement that was made in writing, and s thus far, as 'far as I know, we have not had a response from 6 the Commission staf f on our ' comments. 7 CHAIRMAN PALLADINO: Would it be difficult to just a refresh my memory a little bit on some of the major points ) 9 at issue? I mean the points at issue. 10 COMMISSIONER ASSELSTINE: I take it these'are the 11 points that are made in the January 14th and March 8th 12 letter that you just handed out? i3 MR. MEYERS: That we just handed out, yes. i4 CHAIRMAN PALLADINO: Which is it? 15 MR. MEYERS: This is the January 14th,1985 i3 letter. 17 CHAIRMAN PALLADINO: And March 8th. Okay, is MR. MEYERS: It is 'not a long letter. It is a 19 little over three,pages. 20 CHAIRMAN PALLADINO: Are you suggesting I read 21 this? I was just trying to fix in my mind the key elements 22 over ~hich there is still controversy. 23 MR. MEYERS: Well, one of the key elements that 24 comes to my mind is your interpretation of Section 84 (c) of 25 the Atomic Energy Act and our interpretation. We have l l l
. . I 62 m
i i differed on that for a while. 2 COMMISSIONER ASSELSTINE: That issue being that we 3 have said we think we have case-by-case authority to make 4 these decisions on deviations and I think EPA is saying 5 well, there ought to at least be some coordination on on ' I 6 those aspects. 7 MR. TRUBATCB: If I could sharpen that just a bit, e (Laughter.)
. 9 The issue is whether the Commission has authority to to grant case-by-case exemptions from EPA's standards or 11 whether the Commission is limited to case-by-case 12 exemptions only from its own regulations.
_ 13 MR. MEYERS: That is one way of putting it, yes. 14 CHAIRMAN PALLADINO: Any other points that come 15 strongly to mind? I will read it again. I thought maybe 16 you had them so fixed in your mind that you could just 17 identify them. 18 MR. MEYERS: Just that one. 19 COMMISSIONER ASSELSTINE: I suspect that is 20 Probably the most significant one. 21 CHAIRMAN PALLADINO: Commissioner Roberts? 2: (No response.) 23 CHAIRMAN PALLADINO: Come.issioner Asselstine? 24 COMMISSIONER ASSELSTINE: No. 25 CHAIRMAN PALLADINO: Commissioner Bernthal? I
4 . l 63 i COMMISSIONER BERNTHAL: No. 2 CHAIRMAN PALLADINO: Commissioner Zech? 3 COMMISSIONER ZECH: No. Thank you very much. 4 CHAIRMAN PALLADINO: All right. Well, we 5 appreciate your appearing here and we appreciate the 6 submittal of these documents. 7 I guess the next thing before us then is to reach a our respective decisions. I know that some of us had made 9 preliminary decisions, but I think the information that we io got today may be reason to look at them again, n COMMISSIONER ASSELSTINE: Joe, I note the NRC 12 staff is here. I would be interested in giving them an i3 opportunity to see if there is anything that they have 14 heard today that would have them differ their is recommendation or change their recommendation that the 16 Commission ought to move ahead with the rulemaking package. 17 CHAIRMAN PALLNDINO: I would, too. la COMMISSIONER ASSELSTINE: If they have any 19 comments. 20 MR. FONNER: (Nodding negatively.) 21 COMMISSIONER ASSELSTINE: I take it from shaking 22 your heads you mean no, you didn't hear anything different 23 that would change your view that the Commission should move 24 ahead expeditiously? i 1 I 25 MR. FONNER: Right. -
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!'. 1 COMMISSIONER ASSELSTINE: All right. Anything 2 else you want to make comments on?
3 MR. FONNER: No. 4 (Laughte r . ) 5 CHAIRMAN PALLADINO: Let's see, who is here from 6 the staff? I can't see th m. 7 M3. FONNER: Robert Fonner from OELD and Kitty a Dragonette from ONMSS, and we are the contact persons on 9 the rule. 10 COMMISSIONER ASSELSTINE: I don't know if OGC has 11 any other comments they want to add. I know they made some 12 comments earlier. i3 MR. TRUBATCH: Since this is my last Commission l l 14 meeting from this end of the table. 15 (Laughter.) 16 COMMISSIONER BERNIHAL: You are sure? 17 MR. TRUBATCH: I am sure. We have been involved 1 la in this now since before 1978, and of course there was a l l 19 long lead-up to the actual enactment of the legislation, 20 there has been a lot of rangling over legal issues, 21 especially the jurisdictional issue. There is a lot of 22 concern that there might be inconsistencies if both EPA and 23 the NRC were to simultaneously have authority. 24 But I think I have to agree with Commissioner Zech 25 that the focus has to be on public health and safety, and wn , - - -- ~
65 i in fact nothing has been done in the name of public health 2 and safety since the Congress was concerned about this 3 issue. 4 Now I think instead of these contentional and 5 confrontational postures, if everyone would make a stronger 6 resolve to cooperate, a lot of the problems of potential 7 inconsistencies would go away by just cooperating and not a letting them get in the way. And that is where I would 9 like to leave it hoping that there would be a new beginning to now with everyone just trying to get in there and clean up it what needs to be cleaned up. 12 CHAIRMAN PALLADINO: Well, thank you , Sheldon. I 33 think that was a very statesmanlike remark, and I do a appreciate also Commissioner Zech's point which you 15 emphasized, that we need to give attention to public health 16 and safety aspects of this question. 17 COMMISSIONER BERNIEAL: Let me just make a la comment. CHAIRMAN PALLADINO: Just let me finish. I would I 19 20 urge the Commissioners to submit their votes by notation or 21 affirm the previous vote. That can be done verbally. , 22 COMMISSIONER ASSELSTINE: So you want us to, if we l 23 still stick with the four of us that had voted for the rule , l 24 as of about the middle of July, to just reaffirm that that 25 is our position or if we have changed? I i
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, 1 CEAIRMAN FALLADINO: Yes, just reaffirm it 2 verbally to SECY so we don't wait unnecessarily.
3 COMMISSIONER ASSELSTINE: Sure. 4 CHAIRMAN PALLADINO: Go ahead. 5 COMMISSIONER BERNTHAL: I just wanted to say that s I appreciate the opportunity to sit down and listen to 7 these groups. And I think Commissioner Roberts correctly a perceived the need for the Commission to continue to be 9 educated on this subject, and if we find the opportunity to every several months or few months to continue our 11 education, I would suggest that we should do that. This 12 has been useful for me and I hope for everyone else. _ _ 13 CHAIRMAN PALLADINO: Okay. Any other remarks? 14 (No Iceponse.) is Well, we thank all the participants in this 16 morning's meeting, and we will stand adjourned. i 17 (Whereupon, at 11:32 a.m., the meeting adjourned.) 18 ***** 19 20 21 l 22 23 24 25
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I* 4 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 5 This is to certify that the attached proceedings 6 before the United States NucIear ReguIatory Ccmeission in the 7 matter of- CO"21!SSION 2*EETING e 9 Name of proceeding: Discussion and Oral Presentations on Uranium flill Tailines Regulations 10 (Public ::eeting) 11 Cocket No. 12 place: Washington, D. C. 13 Date: Tuesday, September 10, 1985 14 15 were held as herein appears and that this is the original 16 transcript thereof for the file of the United States Nuclear 17 Regulatory Commission. 19 , (Signature) g g% (Typed Name of Reportfer) Mary C. Simons 20 21 22 23 Ann Riley & Associates. Ltd. 24 i
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L. 9/10/85 SCHEDULING NOTES TITLE: DISCUSSION AND ORAL PRESENTATIONS ON URANIUM MILL TAILINGS REGULATIONS SCHEDULED- 10:00 A.M., TUESDAY, SEPTEMBER 10, 1985 (OPEN) ~ DURATION: APPROX l-1/2 HRS PARTICIPANTS:
- LARRY B0GGS (10 MINUTES)
ANTHONY J. THOMPSON AMERICAN MINING CONGRESS AND RICHARD MESERVE KERR-MCGEE
- ROBERT YUHNKE (10 MINUTES)
ENVIRONMENTAL DEFENSE FUND AND DAVID BERRICK ENVIRONMENTAL POLICY INSTITUTE
- DENISE FORT (10 MINUTES)
STATE OF NEW MEXICO
- SHELDON MEYERS, ACTING DIRECTOR (10 MINUTES) 0FFICE OF RADIATION PROGRAMS EPA AND WILLIAM PEDERSEN OFFICE OF THE GENERAL COUNSEL EPA
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