ML20206E797

EDO Control of Rulemaking Package Re 10CFR51, Environ Protection Regulations for Domestic Licensing & Related Regulatory Functions. Rulemaking Should Be Discontinued

ML20206E797
Person / Time
Issue date:	11/29/1985
From:	Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:	Jennifer Davis NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS)
References
NUDOCS 8606240010
Download: ML20206E797 (123)

Text

{{#Wiki_filter:. . := _ z... = = =.. NOV 2 9155 MEMORANDUM FOR: John G. Davis, Director Office of Nuclear Material Safety and Safeguards i FROM: William J. Dircks Executive Director for Operations

SUBJECT:

CONTROL OF NRC RULEMAKING 4 By memorandum of February 13, 1984, " Control of NRC Rulemaking by Offices Reporting to the EDO," Offices were directed that effective April 1, 1984, (1) all offices under ED0 purview must obtain my approval to begin and/or continue a specific rulemaking, (2) resources were not to be expended on rule-makings that have not been approved, and (3) RES would independently review rulemaking proposals forwarded for my approval and make recommendations to me concerning whether or not and how to proceed with the rulemakings. 4 In accordance with my directive, the following proposal concerning rulemaking has been forwarded for my approval. Proposed amendment of the summary of environmental considerations in the uranium fuel cycle, presented in Table S.3 of 10 CFR Part 51, Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions. (Sponsored by NMSS - memorandum, Davis to ED0 dated October 31,1985.) I i' I agree with your recommendation to not continue with the proposed rulemaking. However, prior to discontinuing the rulemaking, a Commission paper must be prepared to solicit Comission approval of the intended action, since they directed that the rulemaking be undertaken by the staff. After the Commission has decided the matter, the NRC Regulatory Agenda (NUREG-0936) should be modified to reflect the status of the rulemaking. (SignaD Eiam J.D!# 8606240010 851129 William J. Dircks PDR-Executive Director for Operations cc: V. Stello Distribution: - J. Roe WJDircks JHSnierek: H. R. Denton VStello WSchwink J. Taylor JPhilips JHenry R. B. Minogue EDO rf Central File P. G. Norry DEDROGR cf 0"> OFC :ROGR 5

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'e- - L$ UNITED STATES g 8 NUCLEAR REGULATORY COMMISSION o E WASHINGTON, D. C. 20Ei65 g [ OCT 311985 A j 'l MEMORANDUM FOR: William J. Dircks M r88D o Executive Director for Operations 7 g.,r* $ w FROM: John G. Davis, Director de Office of Nuclear Material Safety and Safeguards 9- ,gS' j

SUBJECT:

CANCELLATION OF PLANNED RULEMAKING ON TABLE S-3 We recommend that the proposed rulemaking on Table S-3 be dropped.. This proposed rulemaking to add a narrative explanation to Table S-3 (10 CFR 51.51) was published for public review and comment on March 4,1981, but has been delayed in reaching final rulemaking action. It was first delayed by the Natural Resources Defense Council (NRDC) suit challenging the "zero release" l assumption for the high-level waste repository environmental impact estimates in Table S-3. This suit went all the way to'the Supreme Court where the Table S-3 rule was upheld by the Court. Final rulemaking was subsequently delayed by. the need to revise NRC's 10 CFR Part 40 regulations to conform to the Environmental Protection Agency's (EPA's) new standards for radon releases from tailings at inactive uranium mill sites. The Part 40 regulations have now i been revised to conform to the EPA standards, but recently the EPA has received -a Court order to issue by May 1,1986, new standards for radon releases from active uranium mills. l After experiencing all these delays, we still are not in a position to comply with the Commission's request to incorporate new estimates for radon-222 and technetium-99 into Table S-3 and resolve all outstanding related issues. In addition to the further delay occasioned by waiting for EPA's new standards affecting radon releases from active mills, we would have to wait for performance of research on technetium releases and its mobility in the environment. In individual reactor licensing cases where technetium-99 was an issue, staff testimony has dealt with technetium on a " worst case" basis, assuming that all the technetium present in spent fuel would be released from the - high-level waste (HLW) repository after 1000 years at a rate of 0.001 percent per year, which corresponds to the NRC standard for the HLW repository. Other releases from the fuel cycle and from low-level wastes were estimated on the l basis-of plant release data and were assumed to enter the environment promptly. I They were sufficiently small to be within permissible concentrations at all sites. The EPA's HLW repository release limit of 1,000,000 Ci per 100,000 metric tons of heavy metal stored indicates their current view that technetium-99 l 1s not as dangerous as it was once thought to be. l l l'

N William J. Dircks To establish a reliable data base for estimating technetium-99 releases and for predicting technetium mobility in environmental pathways which lead to human exposure will require at least a year of additional research for which funds are not provided in FY 1986 and FY 1987 budgets. Resource requirements for completing Table S-3 with new radon-222 and technetium-99 values would involve 1.0 FTE in staff effort plus about $500,000 and 0.5 FTE for the research effort. These requirements would be spread over two years. The Office of the Executive Legal Director reviewed the reactor licensing cases to determine whether any pending proceedings, other than the on-going radon case which is before the Commission (review of the Appeal Board decision, ALAB-701), would be affected by the proposed termination of the rulemaking. This review showed that no licensing cases which are still open currently involve Table S-3 health effects (covered in the narrative explanation), radon-222 and/or technetium-99 environmental impacts and health effects as issues in the hearings. Cancellation of the plan for completing the final rulemaking on all outstanding Table S-3 issues will not materf ally affect these licensing cases. Another aspect of the Table S-3 rule is its applicability to cases where the fuel burnup is significantly higher than the 33,000 mwd /T assumed for the model 1000-MWe reactor on which Table S-3 is based. Table S-3 is used in evaluating the environmental impacts of proposed license amendments to allow nuclear power )1 ants to operate at higher fuel burnups. The incentive for going to higher )urnup is to reduce uranium fuel requirements and the I frequency of reloads. With less uranium being used per year, one would expect that the environmental impacts of the uranium fuel cycle would also be less. The Office of Nuclear Regulatory Research (RES) is scheduled to perform an environmental assessment of the use of fuel at higher burnups, but has not yet started the work. A study performed by the Atomic Industrial Forum in 1985, "The Environmental Consequences of Higher Fuel Burnup," AIF/NESP-032, makes specific comparisons of current Table S-3 values with those calculated for higher burnups and shows that Table S-3 would apply to higher burnups very satisfactorily, giving a slightly greater degree of conservatism in the environmental impact estimates. The completion of a final rulemaking on Table S-3 in its present form may be of little value when new nuclear power plant license applications are received because the new plants may differ significantly from the model 1000-MWe LWR that is the basis for Table S-3. There are already some indications that the next generation of U. S. nuclear power plants will be different in size and design.

William J. Dircks Table S-3 now seems likely to have little value for use in connection with future nuclear power plant license applications. We believe that the resource requirements for completing the Table S-3 rulemaking should not be diverted from other programs that are more urgent and important in FY 1986 and FY 1987. This means that the needed resources for Table S-3 cannot be made available until they can be budgeted as increases in FY 1988. Completion of the final Table S-3 rule might then be scheduled late in 1989. Rather than propose such a long-term rescheduling we recommend that the proposed rulemaking action be dropped. It can be reconsidered when infonnation on new nuclear power plant applications shows what would be an appropriate basis for revising Table S-3. In response to the SECY memorandum of August 28, 1985, concerning "SECY-84-149 Final Rule 10 CFR Part 51, Appendix B, Explanatory Narrative for Table S-3," a Commission paper is being prepared to recommend this course of action to the Commission. A copy of the SECY memorandum is attached. \\ dh hohn G. Da is, Director Office of Nuclear Material Safety and Safeguards

Enclosure:

As stated l i l l l l

..j 30"44 ACTION - Davis / g'j UNITED STATES Cys: Dircks F NUCLEAR REGULATORY COMMISSION Roe f g WASHIN GTON, D.C. 20555 Reh Stello o*****+# Denton August 28, 1985 Minogue OFFICE OF THE GCunningham SECRETARY Philips MEMORANDUM FOR: William J. Dircks, Executive Director for Operations FROM: amuel J. Chilk, Secretary

SUBJECT:

SECY-84-149 - FINAL RULE 10 CFR PART 51, APPENDIX 13, EXPLANATORY NARRATIVE FOR TABLE S-3 The Commission has agreed to defer action on the above-referenced item until the necessary NRC and EPA action on mill tailings has proceeded sufficiently to allow radon-222 to be incorporated into table S-3, and ALAB-701 to be re-solved. The Commission also wants technetium-99 incorporated into table S-3. The staff, in coordination with OPE and OGC, should provide a plan and schedule to resolve in an integrated and consistent manner all of the outstanding related issues. (EDO) (SECY SUSPENSE: 10/1/85) cc: Chairman Palladino Commissioner Roberts Commissioner Asselstine commissioner Bernthal Commissioner Zech OGC OPE Rec'd Off. EDO ,g .... r. Tisse.... y..g.- -+

L., 9,g. g / f REcog t&Y*****)% @ C' ADJUDICATORY ISSUE April 10, 1985 SECY-85-125 For: The Commissioners From: Herzel H.E. Plaine General Counsel

Subject:

URANIUM MILL TAILINGS - JURISDICTIONAL BASES FOR EPA'S STANDARDS-

Background:

The three most recent Commission-level events were: (1) a closed Commission meeting on September 20, 1984 to discuss litigation strategy; (2) a September 28, 1984 precis of OGC's views on whether the Environmental Protection Agency (EPA) acted within its jurisdiction under the Uranium Mill Tailings Ra-diation Control Act of 1978, as amended (UTMRCA) in promulgating CONTACT: Sheldon L. Trubatch, OGC 634-3224

2 environmental standards for uranium mill tailings at active milling sites; and (3) publication for public comment of a Notice of Proposed Rulemaking (49 Fed. Reg. 46418, November 26, 1984) and an advance Notice of Proposed Rulemaking (49 Fed. Reg. 46425, November 26, 1984), both of which requested comments on how to conform NRC's mill tailings regula-tions to EPA's mill tailings standards, f Public comments have been received on both proposals and have been considered in this paper. As a separate matter, the Department of Justice, in response to an industry lawsuit challenging EPA's assertion of jurisdiction to regulate mill tailings, has filed a brief defend-ing EPA's regulations as within its jurisdiction. The case is expected to be heard by the Tenth Circuit in June, 1985.

3 Summary: OGC believes that an analysis of UMTRCA and its legislative history shows that: 1. Before UMTRCA, EPA, not NRC, had primary authority over both the radiological and non-radiological impacts from uranium mill tailings; 2. During Congressional deliberations over UMTRCA, NRC attempted to reduce substantially EPA's author-ity over radiological hazards of mill tailings by limiting it to EPA's " traditional" authority under Reorganization Plan No. 3, i.e. authority to promulgate only generally applicable, non-site-specific radiological standards, applicable only outside the bound-aries of the tailings sites; 3. EPA opposed the NRC' attempt to transfer to itself EPA's authority i t I l

4 to regulate mill tailings. EPA's efforts were partially successful and resulted in a Congressional compromise which precluded EPA from promulgating site-specific stan-dards but which did not restrict EPA to standards applicable only outside site boundaries. EPA was also given concurrence authority over NRC regulations for controlling non-radiologic hazards. 4. Except for one instance, EPA acted within its jurisdiction under UMTRCA in setting environmental standards for managing radioactive estss ons and hazardous chemical sar. n from uranium mill tailings, and l 5. EPA exceeded its jurisdiction by stating that its concurrence would be required before the NRC could l 1

O 5 grant site-specific, case-by-case exemptions from NRC regulations for implementing EPA's standards. We believe that such a concurrence role by EPA also contradicts the 1983 amendment to UMTRCA which added Section 84c. to the Atomic Energy Act. The Department of Justice (DOJ), to the extent that it has addressed the issues discussed here, agrees with OGC's conclusions. A copy of the part of DOJ's brief which defends EPA's asser-tion of jurisdiction against the same l challenges raised here by the AMC is also attached. We have not been able to consider fully Mr. Tourtellotte's views on this matter because he has not provided the support-j ing legal analysis as requested by Chairman Palladino. 1 I i

6 Summary: I. EPA's Standards To understand the scope of EPA and NRC authorities over uranium mill tailings, and the legal bases for EPA's uranium i mill tailings standards, it is first i necessary to summarize the EPA standards at issue. They fall into two categories: radiological and non-radiological. The principal radiologic standard at issue is the limit on the rate at which a uranium mill tailings pile will be permitted to release radioactive radon gas into the atmosphere after the associated uranium mill has been closed and the pile has been stabilized for the long-term.1 The allowable emission rate i 1There are also-limits on the quantities of radioactive material allowed to leach from the tailings piles into the groundwater. l l i_

3 4 7 is 20 picoCuries per square meter per second as measured at the surface of the pile. 40 CFR 192.32 (b) (1) (ii). The non-radiologic standards are divided into two categories: operational and post-operational. These standards are designed to protect the quality of groundwater. As required by section 275b.(2) of the Atomic Energy Act, these standards are consistent with EPA's standards for regulating comparably hazardous material under subtitle C of the Solid Waste Disposal Act (SWDA). Operational standards apply during processing and prior to mill closure. New mill tailings piles and extensions of existing piles must be underlain by Subtitle C of SWDA is the Resource Conservation and Recovery Act (RCRA).

8 impermeable liners. 40 CFR 102.32 (a) (1). For existing piles, the leaching of hazardous constituents into the groundwater must be limited to + s..* specified concentration limits. 40 CFR 192.32 (a) (2). These concentration limits are to be monitored by wells drilled at specified compliance points, some of which are near the edges of the tailings piles. 40 CFR 192.32 (a) (iii).3 The standards also provide for exemp-tions from the requirements for a liner and from the general limits on concentrations of hazardous chemicals in the groundwater (alternative concentration limits, or ACLs). However, EPA views ACLs as alternative standards which the NRC or Agreement 3These wells will also be used to monitor radiologic effluents into the groundwater.

9 States may set only after: (1) applying the criteria in 40 CFR 2.64.94; and (2) obtaining EPA's concurrence on a site-by-site basis. Post-operation standards apply after the closure period. 40 CFR 192.32(b). These requirements are the general standards in 40 CFR 264.11: a. minimization of the need for further maintenance; and b. minimization or elimination of post-closure escape of hazard-ous constituents. II. AMC Position The American Mining Congress (AMC) has fully developed the argument supporting the assertion that EPA exceeded its jurisdiction in promulgating the above-

10 described standards. The AMC's most recent statement of its position on this issue is contained in its comments on the NRC's proposal to conform its mill tailings regulation to EPA's standards. (See attachment). It is useful to consider that argument first to identify the aspects of the legislative history of UTMRCA which need to be examined closely. The AMC's argument can be summarized as follows: 1. UMTRCA, by adding Section 275b. (1) to the Atomic Energy Act authorized EPA to promulgate " standards of general application" for the protection of the public health safety and the environment from radiologic and non-radiologic hazards associated with uranium mill tailings.

11 2. The term " standards of general application" is a term of art derived from Reorganization Plan No. 3 of 1970. That term limits EPA to setting general standards outside the boundaries of NRC licensed facilities and vests in the NRC exclusive jurisdiction to set requirements inside the bound-aries of NRC licensed facilities; 3. By using this term of art, and by explicitly authorizing the NRC, through the conduct of its licens-ing activities, to implement and enforce EPA's standards, section 275d. of the Atomic Energy Act, Congress intended in UMTRCA to l l adopt the traditional division of i j responsibility between EPA and NRC for regulating radiologic hazards and to extend that division of r t

12 responsibility to the regulation of 4 non-radiologic hazards; and 4. EPA exceeded its authority under UMTRCA because the tailings stan-i dards apply inside the site boundary, e.g. established an effluent limit on radon entering the atmosphere from the surface of a tailings pile and concentration limits on chemicals entering the groundwater under a tailings pile, 4 In partial support of its position, AMC relies on two legal memoranda by EPA's General Counsel. As relevant here, these memoranda primarily address the question of whether 3 EPA could' establish work practice type requirements in the standards for abandoned tailings piles to be cleaned up by DOE. Under UMTRCA, DOE's responsibilities are different from NRC's, and EPA's standards for active tailings piles explicitly refer to standards under SWDA. Thus, the General Counsel's memoranda do not consider how the legislative history of the UMTRCA provisions affects EPA's authority to set environmental standards for tailings or active mills. Besides not being on point, the ZPA memoranda, as a matter of law, are not due much weight. An agency's interpretation is important evidence of Congressional intent only when the agency's interpretation is contemporaneous with the enactment of the statute being interpreted, not three years later, as here.

13 and in some cases required L engineering features on site, e.g. liners and monitoring wells. III. OGC Analysis A.

Background

We believe that the AMC's position is inconsistent with UMTRCA, especially as illuminated by its legislative history.5 SThe NRC staff has the following comments on the AMC's analysis of legislative history of UMTRCA: The material dealing with UTMRCA is highly selective and misleading. The legislative matter cited relates to the Udall version of S 2.75b. The Udall version was not enacted. Instead, the Dingell version was enacted. The Dingell version omitted any reference to site boundaries and added health and safety to the scope of EPA authority. The brief does not mention the following: (1) two letters from Costle (then Administrator of EPA) to the Congress that are more authoritative legislative history than Hendrie's or Rowe's testimony since the letters provided the model for the Dingell version; (2) Part 2 of the House Report 1480, p. 46, that addresses the Dingell version on which Hendrie and Rowe testified; and (3) the testimony of Senator Randolph explaining the scope of EPA authority.

i 14 To fully appreciate that history, a brief review of the overall history of the regulation of mill tailings is essential. Accordingly, we have provid-ed such a review as a preface to our review of the legislative history of UMTRCA. Uranium mill tailings are the sand-like wastes produced in tremendous quantities in the process of mill uranium ore.6 Prior to 1970, there was little Federal recognition of either the radiologic or non-radiologic hazards associated with mill tailings. Consistent with this belief, the Atomic Energy Commission had interpreted the Atomic Energy Act to 1 exclude mill tailings from the statutory definitions of source, byproduct or 6Approximately two thousand pounds of ore are required to produce between one and five pounds of uranium.

15 special nuclear materials. Because these definitions are the regulatory bases for Commission's jurisdiction over radioactive materials, the exclusion of mill tailings from these definitions left the Commission without authority to regulate mill tailings.

Moreover, because no other federal agency had authority over tailings, they went unregulated by the Federal Government through the mid-1970's.

In fact, because of their attractive physical properties, mill tailings were used as sand in cement for roads and foundations and as fill for both public and private buildings. Although the Federal regulation of l tailings started in the mid-1970's, the regulatory situation began to change in the mid-1960's as Federal agencies became concerned about water pollution associated with tailings piles. But the

16 seriousness of the problem was not fully appreciated until 1970 when the public became aware of the carcinogenic effects of the radioactive radon gas which is emitted by mill tailing for hundreds of thousands of years.7 In 1972, Congress enacted Public Law 92-314 authorizing the federal government to devise a program to remove tailings from struc-tures in Grand Junction, Colorado.

See, generally, H. Rep. No. 95-1480, Part I, 95th Cong., 2d Sess. pp 11-12 (1978).

During this period, public and Federal attention also began to focus on the need for closer regulation of the active 7The source of radioactive radon in mill tailings is the radioactive decay of thorium which has a half-life of seventy-five thousand years. The thorium decays radioactively to radium which is also radioactive and decays to radon. Because the half-life of thorium is much longer than the half-life of radium, the rate of production of radon in mill tailings remains virtually unchanged for seventy-five thousand years.

17 uranium commercial uranium milling industry. The first step in this direction was accomplished by the Resource Conservation and Recovery Act of 1976 (RCRA). That Act amended the Solid Waste Disposal Act to vest in the Environmental Protection Agency (EPA) authority to regulate the management and disposal of hazardous wastes. This authority covered uranium mill tailings 4 because they contain heavy metals and other hazardous wastes, as well as hazardous radioactive materials over which the Atomic Energy Commission had eschewed regulatory authority.8 4 i 8 In 1977, the Clean Air Act was amended to give EPA authority to regulate the emission of hazardous pollutants into the air. The authority covers radioactive air pollutants such as radon from mill tailings piles. EPA has exercised this authority by relying on the Commission's regulation of radon emissions.

l 18 l However, due to budgetary constraints I and the need to deal first with more hazardous wastes, EPA did not exercise its authority to regulate mill tailings under RCRA. Rather, the Commission indirectly regulated tailings piles at active mills by stretching NRC authority to license the processing or milling of uranium are. See, generally, testimony by Chairman Hendrie at Hearings Before the Subcommittee on Energy and the Environment of the House Committee on Interior and Insular Affairs, 95th Cong., 2d Sess. pp. 75-77 (1978) (Udall Subcommittee); and at Hearings before the Subcommittee on Interstate and Foreign Commerce, 95th Cong., 2d Sess.

p. 216 (1978) (Dingell Subcommittee).

Essentially, the Commission relied on a broad reading of the National Environ-mental Policy Act (NEPA) and the lever-age provided by the licensing process to

19 impose regulatory requirements on hazardous chemicals at active milling sites and on the stabilization of tailings piles after active uranium milling was concluded and the license had been terminated. These Commission actions were taken in close cooperation with EPA. Although tailings piles at active mills were coming under Federal regulation, nothing was being done about the aban-doned mill tailings piles left over from the nuclear weapons program. To avoid repetition of the misuse of such tail-ings as at Grand Junction, the Adminis-f tration, and some members of Congress, proposed legislation for the clean-up and stabilization of the abandoned tailings sites. During the course of j hearings on these bills, it became clear 1 that tailings piles at active milling sites would present the same hazards

r e e 20 once milling had been concluded. Because the Commission had no regulatory authority over those piles once the milling license had been terminated, the Commission had no basis for enforcing tha regulatory requirements it imposed under the authority of NEPA. This regulatory hiatus concerned both the Commission and the Congress, and the Commission proposed legislation to establish explicit NRC authority over mill tailings. See, for example, the colloquy between Mr. Dingell and Chair-man Hendrie, Hearings before the Subcom-mittee on Energy and Power of the House Committee on Interstate and Foreign Commerce, 95th Cong., 2d Sess. pg. 284 (1978). The Commission's proposed legislation was introduced by Congressman Udall as H.R. 13382. Chairman Hendrie described the intent of that bill in testimony I i

A 21 before the Udall Subcommittee. That bill would have divested EPA of all authority to regulate mill tailings under RCRA by defining tailings as byproduct material. Because the Atomic Energy Act applies to only the radioac-tive aspects of regulated materials, the Commission still expected to rely on NEPA to regulate the non-radiologic hazardous aspects of tailings. EPA's only authority over the radiological aspects of tailings would have been the establishment of ambient environmental radiation standards under Reorganization Plan No. 3 of 1970. Hearings Before the Subcommittee on Energy and the Environ-ment of the House Committee on Interior and Insular Affairs, 95th Cong., 2d Sess. 135 (1978). The AMC relies very heavily on the legiclative history up to this point. The AMC does not address most of the subsequent developments l l I l

22 which, as discussed below, led to the final form of UMTRCA. EPA was not invited to testify on H.R. 13382 before the Udall Subcommittee. i i But in a letter to Congressman Udall, Administrator Costle expressed serious reservations about transferring to the NRC the principal responsibilities for regulating mill tailings. In particu-lar, Administrator Costle was concerned that the radioactive and non-radioactive hazards in tailings be subject to the same level of regulation as was applied to similar hazards in materials regulat-l ed by EPA under RCRA.' To ensure such consistency in regulation, Administrator l Costle suggested that in addition to 9 ( For example, EPA regulates the hazards from radioactivity in phosphate mining wastes which, like uranium l mill tailings, are generated in large quantities and are contaminated with low concentrations of radium. l f l

c-23 EPA's authority under Reorganization Plan No. 3 of 1970, EPA also be authori-zed to set environmental standards, and that NRC be required to implement EPA's standards and criteria, and that the NRC be required to adopt-and enforce mill tailings requirements comparable to those required for hazardous materials under RCRA. Hearings before the Subcom-mittee on Energy and Environment of the House Committee on Interior and Insular Affairs, 95th Cong., 2d Sess. pp. 519-20 (1978). The Udall Subcommittee responded to Administrator Castle's concerns by amending H.R. 13382 to add a proposed Section 275 to the Atomic Energy Act. The amended bill, H.R. 13650 (Udall version), would have authorized EPA to promulgate generally applicable stan-dards for the protection of the general environment from radiological and

24 non-radiological hazards of mill tail-ings. Such standards were to impose limits on exposures or levels, or quantities or concentrations of hazard-ous materials in the general environment outside the boundaries of processing sites. This bill was reported to both the Udall Subcommittee and the Dingell Subcommittee as H.R. 13650 (Udall version).10 Soon thereafter, the Dingell Subcommit-tee held a hearing on H.R. 13382. Chairman Hendrie repeated his understanding that H.R. 13382 would vest in the NRC authority to regulate both radiological and non-radiological hazards from mill tailings. Hearings OH.R. Rep. No. 95-1480, Part 1, 95th Cong., 2d Sess. (1978) accompanied H.R. 13660 (Udall version). Therefore, any statements in this report are limited to the language in that bill.

B 25 before the Subcommittee on Energy and Power of the House Committee on Interstate and Foreign Commerce, 95th Cong., 2d Sess pp. 342-43 (1978). Mr. Rowe, for EPA, summarized the Administrator's objections to H.R. 13382. Id. at pp. 364-66. Thereafter, Mr. Finnegan, Counsel for the Dingell Subcommittee, noted that H.R. 13650 (Udall version) had attempted to address EPA's concerns. Id. at 384. Mr. Galpin and Mr. Rowe acknowledged this, but noted that there were problems with H.R. 13650 (Udall version). For example, they were concerned that the definition of EPA's standard-setting authority was too restrictive and that EPA should be authorized to establish i management practices for such waste as are established for similar wastes under RCRA. Id. at 385. l l l l { l I

1 26 Mr. Finnegan also discussed with Mr. Rowe whether EPA's standards would be set so as to apply to activities within the boundaries of milling sites. Mr. Rowe stated that, in general, EPA's standards would operate outside the milling sites, and referred to EPA standard setting authority under Reorganization Plan No. 3 of 1970. Hearings before the Subcommittee on Energy and Power of the House Committee on Interstate and Foreign Commerce, 95th Cong., 2d Sess 392 (1978). Mr. Finnegan suggested that H.R. 13650 iUdall ver-sion) had been drafted to give EPA broader authority to set standards without regard to site boundaries. Id. at 393 and 396-97. And Mr. Galpin, for EPA, noted that the idea of a discern-ible fence or boundary might not have any meaning for tailings disposal. Id. at 397. I l l

27 After the hearing, a modified version of H.R. 13650 was reported out by the full House Committee on Interstate and Foreign Commerce. This version differed from the one reported by the Udall Subcommittee in the treatment of site boundaries. The hearings cited above show that the changes were deliberate, and were intended to provide a special definition for the term " standards of general application" as applied to mill tailings. H.R. Rep. No. 95-1480, Part 2, 95th Cong. 2d Sess. 46 (1978). In particular, EPA's standards were no longer limited to off-site standards. Rather, EPA was authorized to "promul-gate standards of general application for the protection of the public health, safety and the environment from radiolo-gical and non-radiological hazards associated with (mill tailings]".

28 To resolve the differences in the two versions of H.R. 13650, negotiations were held by representatives of EPA, NRC and the staff of the two House Commit-tees: Commerce and Interior. The resulting compromise led to the adoption of the Dingell Committee language in H.R. 13650 as the language which was eventually included in the Uranium Mill Tailings Radiation Control Act (UMTRCA). As discussed above, the language delib-erately does not contain any reference to site boundaries. Thus, Mr. Rowe's testimony on the general inapplicability of EPA's standards to areas outside site boundaries does not apply to UMTRCA because his testimony did not address the language in the final version of the bill. In exchange for not limiting EPA to off-site standards, H.R. 13650 did preclude EPA from establishing site-

29 specific requirements for the management of uranium mill tailings. H.R. Rep. No. 95-1480, Part 2, 95th Cong., 2d Sess. 46 (1978). The only action in the Senate relevant to the matters at issue here was Senator Randolph's attempt to further define the relative roles of EPA and NRC. He 11The AMC relies on the unpublished transcript of a markup session by the Senate Committee on Environment and Public Works to support its claim that the Committee's staff indicated that the Senate bill S. 2584 was intended to limit EPA's authority to off-site standards. The Senate bill was not enacted and, thus, as a matter of law, the unpublished transcript of a markup session indicating the intent of staff members has little or no weight as legislative history of UMTRCA. As the following cases show, the " weight" of the transcript of a markup session varies with the factual circumstances such as the availability of other, more reliable, indicia of legislative intent. But, in all cases, [ to be considered at all as legislative history, the bill i being marked up must have been the bill ultimately enacted into law. Moreover, the statements made during the markup must have explicitly addressed the very issue in controversy. Regan 82 L. Ed 2d 171, 182-3 (1984). (The

v. Wald, 468 U.S.

transcript of a markup session of the bill that ultimatly was enacted into law is part of that law's legislative history. But statements by individual legislators, unless j [ Footnote Continued] I

s 30 began from his concern that the Commis-sion's regulation of mill tailings be no less stringent than the requirements that tailings had been subject to under Subtitle C of SWDA. Accordingly, he insisted that EPA retain a continuing role of tailings regulation by estab-lishing standards consistent with those contained in Subtitle C of SWDA and that the NRC be required to promulgate management requirements at least as (Footnote Continued) very precisely directed to the intended meaning of particular words in a statute, cannot be taken as bearing materially on clear statutory language); Thomas v. Barry, 729 F.2d 1469, 1473 at n. 30 (D.C. Cir. 1984). (Statement by one of the Act's architects as recorded in the transcript of a markup session taken as indicative of legislative intent) ; Nevada Power Co. v. Watt, 711 F.2d 913, 922-25 and

n. 8 (10th Cir. 1983).

(Transcripts of markup sessions of bill that was enacted is part of its legislative history but not officially relied on to interpret statutory language as were the Conference, House and Senate Reports.) ; Borrell v. U.S. International Communications Agency) 221 U.S. App. D.C. 32 682 F.2d 981 (D.C. Cir. 1982). (Remarks in markup session relied on as indicating Congressional intent). Tagel v. Regan, 643 F.2d 1058 1060 (5th Cir. 1081). l (Colloquy in transcript markup session found persuasive where resolution of issue discussed during markup session I was explicitly embodied in the language of the bill as enacted.)

r s 31 stringent as requirements under SWDA. The only limit on EPA was that "the Administrator is to prescribe general standards of performance, rot specific management requirements and not site-specific." 124 Cong. Rec. S. 10749 (1978). He further explained that such general standards could be siting standards, general standards for site design and preparation, use restriction standards and general pile stablization standards. He added that " limitations on environmental exposure or emissions or other introduction of radioactive or any other constituents of mill tailings in the air or ground or surface wastes, are also within the authority of the Administrator under new Section 275." Id. Nowhere does Senator Randolph I

32 mention the site boundary as a limit on 2 EPA's jurisdiction. As finally enacted, UMTRCA incorporated the language in H.R. 13650 as agreed to by both Committees. Section 275b. (1), as amended, provides EPA authority to promulgate standards of general applica-tion: b.(1) As soon as practicable, but not later than October 31, 1982, the Administrator shall, by rule, 12AMC relies on a letter of August 9, 1978 from Carlton Stoiber, NRC Assistant General Counsel, to members of the staff of the Subcommittee on Nuclear Regulation on the Senate Committee on Environmental and Public Works which supposedly reports an agreement between EPA Administrator Costle and NRC Chairman Hendrie on the agencies' respective roles under UMTRCA. According, to that letter, EPA would limit its standard-setting to off-site standards. While I that may have been the agencies' understanding as of August 9, an understanding reflected in the August 11 Udall version of H.R. 13650, it is not the understanding contained in the September 30 Dingell version of H.R. 13650 which was enacted, nor in the September 30 House Report acccmpanying that bill.

33 propose, and within 11 months thereafter promulgate in final form standards of general application for the protection of the public health, safety and the environment from radiological and non-radiological hazards associated with the processing and with the possession, transfer, and disposal of byproduct material, as defined in section 11e.(2) of this Act, at sites at which ores are processed primarily for their source material content or which are used for the disposal of such byproduct material. In establishing such i i standards, the Administrator shall consider the risk to the public health, safety and the environment, the environmental and economic costs of applying such standards, and such other factors as the l l l I t

34 Administrator determines to be appropriate. As discussed above, Congress intention-ally deleted from this section of UMTRCA any explicit reference to site boundaries. While it could be argued l that this deletion was intended simply to eliminate redundant language, because EPA's limitation to set standards outside the site boundary is already included in the term " standards of general application" as used in Reorganization Plan No. 3, such an interpretation of Congressional intent is not supported by the legislative l history. The legislative history shows consideration of, and rejection of, the approach in Reorganization Plan No. 3. l Therefore, we believe that Congress intended to permit EPA to establish on-site standards for both radiologic and non-radiologic hazards.

35 Accordingly, we believe that EPA did not exceed its jurisdiction in promulgating radiologic standards limiting the allowable rate of radon emanation from the surfaces of tailings piles even if those piles are within the perimeters of fences or other site boundaries. i i As for non-radiologic hazards, section t 275b.(2) explicitly provides that EPA's l l standards are to provide for protection of human health and environment consis-j l tent with the standards required under Subtitle C of the Solid Waste Disposal Act (SWDA). 275b.(2) Such generally applica-ble standards promulgated pursuant to this subsection for l non-radiological hazards shall i provide for the protection of human l health and the environment consistent with the standards l l

36 required under subtitle C of the Solid Waste Disposal Act, as amended, which are applicable to such hazards: Provided, here, that no permit issued by the Administra-tor is required under this Act or the Solid Waste Disposal Act, as amended, for the processing, l possession, transfer, or disposal of byproduct material, as defined in section 11e(2) of the this Act. The Administrator may periodically revise any standard promulgated pursuant to this subsection. Within three years after such revision of any such standard, the Commission and any State permitted to exercise authority under section l 274b.(2) shall apply such revised standards in the case of any 4 license for byproduct material as defined in section 11e. (2) or any

37 revision thereof. (Emphasis supplied). The legislative history makes clear that EPA's authority to promulgate standards for non-radiologic hazards is in addition to its general standard setting i authority under the Atomic Energy Act. Nowhere in the legislative history of the bill which was enacted into law is there any indication that this new authority is to be limited to the l on-site /off-site distinction applicable to EPA's authority over radiological hazards under Reorganization Plan No. 3.13 Thus, the plain language of the 13The AMC has put forward three reasons which it believes show that EPA has no greater jurisdiction over the non-radiological aspects of mill tailings than over the radiological aspects of tailings. We find none of these reasons even colorably persuasive. First, AMC ignores the introductory language to Section 275b. (2), language which explicitly requires EPA's non-radiological standards to be consistent with EPA's regulations under Subsection C of [ Footnote Continued]

38 statute implies that EPA's uranium mill (Footnote Continued] SWDA. Instead, the AMC stops at Section 275b. (1), which the term " standards of general application" applies to both radiological and non-radiological standards. The suggestion that this general characterization of both types of l standards somehow qualifies the explicit Congressional directive in Section 275b. (2) is inconsistent with the principles of statutory construction. Second, AMC relies on its incomplete analysis of the legislative history to again argue that the onsite/offsite dichotomy was intended to apply to any statutorily required consistency between EPA's non-radiological standards for mill tailings and its regulations under SWDA. We fird nothing in the legislative history to support this contention. Moreover, contrary to AMC's contention, rejection of AMC's interpretation does not render Section 84a(3) superfluous. Section 84a(3) applies to mill tailings requirements promulgated by the NRC, and requires such requirements to be consistent with SWDA. By enacting this provision, Congress simply wanted to ensure that all NRC regulations of mill tailings, including NRC regulations which are promulgated to do more than just implement EPA's general standards, are consistent with SWDA. Finally, the AMC attempts to convert a jurisdictional argument into a substantive contradiction regarding NRC's compliance with SWDA. SWDA was enacted before UMTRCA, and explicitly excluded from EPA's jurisdiction under SWDA radioactive materials regulation by the NRC under the Atomic Energy Act. Now that UMTRCA has amended the Atomic Energy Act to include mill tailings as a byproduct material, EPA has no jurisdiction over such material under SWDA. This is correct. But it does not follow, as contended by the AMC, that there is an inconsistency between the UMTRCA requirement that NRC's regulations be consistent with EPA's regulations under SWDA and the Atomic Energy Act.

Moreover, to the extent that the argument is understandable at all, it boils down to the AMC's interpretation of UMTRCA to require

[ Footnote Continued)

39 tailings standards are within the scope of EPA's jurisdiction, so long as those standards are consistent with the standards EPA has promulgated under subtitle C of the SWDA. EPA's mill tailings standards satisfy this test because those standards are just a straightforward incorporation of the SWDA standards for comparable hazardous wastes. Nor do we believe that section 275.d indicates that EPA's standards are too detailed. Section 275.d provides: l l l "d. Implementation and enforce-ment of the standards promulgated pursuant to subsection b. of this section shall be the responsibility l l l [ Footnote Continued] the onsite/offsite distinction. Thus, we find nothing of merit here. i i

40 l of the Commission in the conduct of its licensing activities under this Act. States exercising authority pursuant to section 274b. (2) of this Act shall implement and enforce such standards in accor-dance with subsection o. of such section. (Emphasis supplied.) The Commission's implementing obliga-tions under UMTRCA are explicitly provided by section 84a. of the Atomic Energy Act. It provides: "SEC 84 AUTHORITIES OF COMMISSION RESPECTING CERTAIN BYPRODUCT 11ATERIALS. "a. The Commission shall insure that the management of any byproduct material, as defined in section 11e. (2), is carried out in such manner as-

41 " (1) the Commission deems appropriate to protect the l public health and safety and i the environment from radiological and non-radiological hazards associated with the proceeding l and with the possession and transfer of such material, " (2 ) conforms with applica-l l ble general standards promulgated by the Administrator of the j Environnental Protection Agency under section 275, and l "(3) conforms to general l requirements established by l the commission, with the j concurrence of the Administra-l l tor, which are, to the maximum extent practicable, at least

\\ 42 comparable to requirements applicable to the possession, transfer, and disposal of similar hazardous material-regulated by the Administrator under the Solid Waste Disposal Act, as amended. (Emphasis supplied.) Because section 84a. does not refer back to standards under Reorganization Plan No. 3, but rather to more detailed standards of the kind authorized by UMTRCA, the NRC's previous interpreta-tion of its jurisdiction under the organization plan does not apply here.14 The staff agrees. In its March 7, 1984 l tailings memorandum, the staff stated: i 14Moreover, there is no merit to the AMC's argument that a generic radon emanation limit of 20pci/m2/s is impermissibly site-specific. The AMC confuses this generally applicable emanation limit which applies uniformly [ Footnote Continued]

43 "For tailings, the implementation reference in section 275d. is not exclusive and does not have to be interpreted as precluding the EPA standards from including implementation aspects. This situation is legally different from the authority that EPA exercised under Reorganization Plan No. 3 of 1979." The only area in which EPA appears to have clearly overstepped its authority is in its insistence on concurring in site-specific exemptions which the NRC may grant from EPA's standards. EPA's concurrence authority is contained in section 84a(3) of the Atomic Energy Act. It provides that the Commission must [ Footnote Continued] to all sites with site-specific emanation limits which would be set on a case-by-case basis by taking local conditions into account. EPA has not promulgated such a standard.

44 obtain EPA's concurrence in the NRC's " general requirements" for managing mill tailings. Such concurrence appears to be limited to the regulations which the Commission will promulgate to implement EPA tailings standards, and does not appear to apply to site-specific exemp-tions determined on a case-by-case basis. If EPA's concurrence were required on site-specific exemptions, EPA would be injected into the NRC licensing process contrary to section 275d. of the Atomic Energy Act which authorizes only the NRC to implement and enforce EPA's standards.'5 Any doubt about the extent of EPA's concurrence authority seems to have been l l 15 It could also be argued that EPA concurrence in NRC site-specific exemptions is tantamount to an EPA permit under SWDA in direct contradiction to section 275b. (2) of the Atomic Energy Act.

45 resolved definitively by the 1983 amendments to UMTRCA. The amendments to sections 84 and 275o of the Atomic Energy Act vest authority in the Commis-sion and Agreement States to relax NRC requirements promulgated to implement EPA's standards and to relax EPA's standards themselves without EPA's concurrence. Sections 19 and 20 of Pub. L. No. 97-415 (1983). Section 20 provides: Section 84 of the Atomic Energy Act of 1954 is amended by adding the following at the end thereof: c. In the case of sites at which ores are processed primarily for their source material content or which are used for the disposal of byproduct material as defined in section 11e. (2), a licensee

4 46 may propose alternatives to specific requirements adopted and enforced by the Commission under this Act. Such alterna-tive proposals may take into account local or regional conditions, including geology, topography, hydrology and meteorology. The Commission may treat such alternatives as satisfying Commission require-ments if the Commission determines that such alterna-i l tives will achieve a level of l stabilization and containment l of the sites concerned, and a level of protection for public health, safety, and the environment from radiological 1 and non-radiological hazards associated with such sites, which is equivalent to, to the extent practicable, or more l- - - ,.~ _

47 stringent than the level which would be achieved by standards and requirements adopted and enforced by the Commission for the same purpose and any final standards promulgated by the Administrator of the Environ-mental Protection Agency in accordance with section 275. This statutory language is reasonably read to authorize the Commission effec-tively to grant exemptions from EPA's groundwater standards without obtaining EPA's concurrence. EPA disagrees, and in its comments on the NRC's proposed modifications to its mill tailings regulations, has raised the following objections: Section 84c does not confer on NRC authority to approve or employ alternative standards or to substi-tute its judgment for EPA's regard-ing the levels of protection 4

48 necessary to protect public health and the environment. Rather it authorizes NRC to approve or employ licensee-proposed alternatives to NRC's own general implementing requirements when such alternatives would provide the level of contain-ment, stabilization, and protection of health and the environment provided by existing NRC require-ments and EPA standards. With respect to alternate concen-tration limits (ACLs) and delisting j of hazardous constituents, EPA established, consistent with its standards under Solid Waste Dis-posal Act, as amended, general mechanisms for alternate standards based on its judgment that such mechanisms could ensure equivalent protection of public health and the environment. NRC claims that EPA overreached, because, in its view, such mechanisms involve site-speci-fic considerations that URC believes Section 84c placed within its exclusive purview. We disagree with NRC's interpretation of Section 84c and of the concurrence issue. The fact that EPA's standards (or any standards, for that matter) operate in a manner specific to sites render them subject to change or invalid under Section 84c. The general criteria involved in carrying out these mechanisms for alternative standards require health and environmental judgments. These judgments are clearly within EPA's purview. Moreover, such mechanisms were provided by the SWDA standards recogni ed in UMTRCA, and - as NRC is aware - EPA's concurrence

49 requirement need not be exercised site-specifically. More generally, in setting standards EPA exercised the independent judgment regarding practicability, which Congress required EPA and NRC to exercise within their respective standard-setting and implementation roles. Congress did not thereby vest NRC with jurisdiction to set, much less apply, alternative health and environmental protection standards. Section 84 merely authorizes alternate NRC require-ments to be used at a site when doing so represents maximum practi-cable adherence to NRC requirements and when doing so would also attain EPA standards. In a related area, we believe the authority to apply alternatives y cannot be exercised in advance of establishing " specific requirements adopted and enforced by the Ccmmis-sion" under the AEA. We disagree with EPA on several grounds. First, although Section 84c. explicitly limits the Commission's exemption authority to " specific requirements adopted and enforced by the Commission" under the Atomic Energy Act, we believe that " specific Commission requirements" l l I

50 can be deemed adopted without a rulemak-ing proceeding. As EPA notes, Section 84a(2) requires the commission to ensure that tailings are managed in conformance with EPA's standards. This, we believe, creates a statutory obligation by the Commission to enforce EPA's standards independent of whether the Commission adopts regulations which would clarify how the Commission would enforce those standards. Thus, we believe that the Commission can now consider alternatives to EPA's standards. Second, EPA is incorrect in asserting that licensee alternatives approved by the NRC must provide the same level of containment, stabilization, and protec-l tion of health and the environment as l l provided by existing NRC requirements and EPA standards. Section 84c. explic-itly states that the NRC may approve alternatives which, to the extent

51 practicable, would achieve safety levels equivalent to those which would be achieved by compliance with NRC's requirements and EPA's standards.

Thus, the NRC is authorized to approve an alternative which does not provide the same level of protection of public health, safety and the environment which would be achieved if EPA's standards were complied with fully.

Third, EPA reads into the statute a 4 class of requirements called implement-ing requirements which EPA then asserts are the only requirements for which the NRC can approve alternatives under Section 84c. UMTRCA does not use this phrase; Section 84c. refers to only " specific requirements adopted and enforced by the Commission." The general phrase is not limited to imple-menting requirements. Rather, this phrase is clearly intended to include

52 all requirements adopted by the Commis-sion to regulate mill tailings.

Thus, for example, if the Commission adopts as its requirements EPA's detailed stan-dards for water protection, the fact that these NRC requirements are also EPA standards is irrelevant to the NRC's Section 84c. exemption authority for two reasons:

(1) the legally operative circumstance is that the requirements were adopted specifically by the NRC, the source of the requirements is immaterial to the statutory scheme; and (2) Secticn 84c. authorizes the NRC to grant exemptions from requirements designed to achieve full compliance with EPA's standards. Finally, EPA has not effectively responded to the Commission's argument that EPA site-specific concurrence in exemptions contradicts the prohibition on EPA's issuance of a permit. Section

53 i i 275b.(2). EPA contends that a standard is valid under Section 84c. even if it operates in a manner specific to sites. EPA offers no support for this bald assertion. We believe it is flatly contrary to Section 275b. (2).

== Conclusion:== In conclusion, we believe that the better legal view is that EPA generally has acted within its jurisdiction to set generally applicable environmental standards which include generic on-site t implementation provisions. We are also I confident that the Commission is l l authorized under section 84c. of the Atomic Energy Act to grant exemptions from EPA's standards without obtaining EPA's concurrence. g (E '(', N Herze H.E. Plaine General Counsel Attachments: DISTRIBUTION: 1. AMC Comments Commissioners 2. Excerpt from DOJ Brief OGC Region IV OPE EDO OI ELD OCA ACRS OIA ASLBP OPA ASLAP j SECY

8 4 i ATTACHMENT 1 4

i k American Mining Congress n :- l Comments on the Nuclear Regulatory Commission's Uranium MillTailings Regulations Proposal for Conforming NRC Requirements to EPA Standards I 1 February 11,1985 i I I l 1 l l b -uL-

i AMERICAN MDENG CONGRESS COMMENTS RE: PROPOSED URANIUM MILL TAILINGS REGULATIONS; CONFORMING NRC REQUIREMENTS TO EPA STAN-DARDS (49 Fed. Reg. 46,418, November 26, 1984) The American Mining Congress (AMC) submits these comments on the Nuclear Regulatory Commission's (NRC's) proposal to conform its regulations for uranium mill tailings to standards issued by the Environmental Protection Agency (EPA). AMC is a national trade association whose members include a majority of the domestic uranium producers. NRC's regulations for active uranium processing sites ar'e cf critical importance to these producers because the regulations wbl govern the operations of the entire domestic uranium processing industry from the day they are cffective through closure, decommissioning and final stabilization of tailings sites. If implemented, these regulations will impose unnecessary and costly levels of control on e severely depressed uranium industry. Less burdensome and less costly methods of control would provide appropriate, and in many cases greater, protection to the public hnalth and safety and to the environment from any potential hazards associated with uranium milling.

SUMMARY

-^ L NRC WOULD ABDICATE l'IS CONGRESSIONALLY MANDATED LEGAL RESPON- ~ SIBILITIES AND FUNCTIONS IP IT ADOPTS EPA STANDARDS Since its ratification of Reorganization Plan No. 3 of 1970, consistent o Congressional policy has been to limit EPA standard setting authority for NRC licensed facilities to " generally applicable standards," meaning stan-dards that are applicable outside site boundaries and that impose no site specific design, engineering or management requirements. l l m . -m m.

Congress in the Uranium Mill Tailings Radiation Control Act o of 1978 (UMTRCA) adopted the division of jurisdiction between EPA and NRC f established in the 1970 Reorganization Plan with respectto radiological and nonradiological aspects of mill tailings. As recognized by EPA's general counsel, use of the concept of " generally applicable standards" in UMTRCA presumptively indicates that Congress intended the same meaning to apply to this phrase as established in the 1970 Reorganization Plan. All affirmative evidence in the legislative history of UMTRCA confirms that Congress intended to adopt the jurisdictional division of the 1970 Reorganization Plan for Mill Tailings. As recognized in Train v. Colorade Public Interest Research Grouo, 426 U.S.1 (1976) (Train), if Congress had intended to alter the established policy of the Atomic Energy Act (AEA) in UMTRCA, which amends that Act, it would have said so clearly. Indisputaoly, EPA's standards apply within site boundaries, impose design o engineering and management requirements, and effectively preclude site specific requirements by NRC. As such, they are beyond the jurisdiction i of EPA and, consequently, are a " mere nullity" of no legal force or effect. United States v. Larionoff, 431 U.S. 864, 873 n.12 (1977) (Larionoffh NRC's first obligation is to conform its actions to Congressional intent o . in UMTRCA. Therefore, if NRC should adopt EPA's standards it would aodicate its responsibilities and obligations under UMTRCA in violation of its duty to abide by Congressional intent. -

IL BECAUSE RADON EMISSIONS PROM MILL TAILINGS PILES DO NOT POSE A SIGNIFICANT RISK OF HARM TO PUBLIC HEALTH, SAFETY OR THE ENVIRON-MENT, NRC'S REQUIREMENTS SHOULD FOCUS ON STABILIZATION OF TAIL-INGS FOR A REASONABLE PERIOD OF TIME o Because EPA's standards h e outside that agency's jurisdiction, NRC must make and justify, after notice and opportunity for comment, a significant risk finding before adopting any regulatory requirements for mill tailings. IIL NRC MUST ASSURE THAT THE COSTS OF ANY REGULATORY REQUIREMENTS FOR MILL TAILINGS ARE REASONABLY RELATED TO RISKS o NRC has provided no analysis establishing that its proposed mill tailings regulations are reasonably related in terms of costs, risks and benefits. it must do so before finalizing any requirements. Moreover, the public should be given an opportunity to comment on any such analysis before finalization of requirements. l IV. ANY NRC REQUIREMENTS SHOULD PROVIDE FOR DISTINCTIONS BETWEEN EXISTING AND NEW SITES AND SHOULD ALLOW FOR MAXIMUM SITE SPECIF- _ IC FLEXIBILITY o As stated by Congressman Udall during House corsideration of UMTRCA: It is our intention that the Commission and the States, ~ in implementing standards and regulations for mill tailings control, consider possible differences in applicability of such requirements to existing tailing sites relative to new tailing sites. 124 Cong. Rec. H12969 (daily ed., October 14,1978). In support of its comments, AMC is filing its comments on EPA's Active Site Standards, its briefs in litigation challenging EPA's active site standards, and, for the Commission's convenience, a bound volume of documents relevant to the issue of EPA's '

jurisdiction filed with the United States Court of Appeals for the Tenth Circuit.1/ AMC also adopts and incorporates its previously filed comments on NRC's originally proposed requirement and its Generic Environmental Impact Statement.

GENERAL COMMENT

S L BECAUSE EPA'S STANDARDS FOR MILL TAILINGS EXCEED THAT AGENCY'S STATUTORY JURISDICTION AND INTRUDE UPON JURISDICTION RESERVED EXCLUSIVELY TO NRC, THE COMMISSION UNLAWFULLY ABDICATES ITS STATUTORY OBLIGATIONS BY ADOPTING EPA STANDARDS The proposal states that the purpose of this rulemaking is to conform existing NRC requirements for the licensing of uranium mills and uranium mill tailings to " generally applicable requirements" of EPA. 49 Fed. Reg. 46,418 (col. 2).1/ The proposal further asserts that the proposed changes are " essentially nondiscretionary in nature" and are " legally mandated in Section 275b(3) of the Atomic Energy Act, as am ended." 49 Fed. Reg. 46,421 (col. 2). For reasons that follow, NRC is acting under l erroneous assumptions that are inconsistent with applicable law. In essence, EPA's radiological and nonradiological standards - by applying within licensed mill and mill tailings disposal sites and by imposing design, engineering and management requirements - exceed that agency's jurisdiction under AEA,d/ as amended 1/ Throughout its comments to NRC contained herein AMC references legal documents such as AMC and EPA briefs or memoranda and the statements of various individuals such as EPA and NRC officials. These references are public statements which make up part of the cumulative public record which addresses uranium mill tailings issues and should be evaluated as such. 2/ NRC's existing requirements appear at 45 Fed. Reg. 65,521, el sec. (October 3, 1980). EPA's standards appear at 48 Fed. Reg. 45,926 (October 7,1983). 3/ Pub. L. No. 83-701, 68 Stat. 919 (1954). - -

by UMTRCA4/ and intrude on authority reserved by Congress in those acts to NRC's sounc discretion. Accordingl'y, EPA's standards are not " generally applicaole standards" as this concept is used in both AEA and UMTRCA and are, therefore, a " nullity."F As such, EPA standards have. no legal force or effect and NRC is not required by law to conform its requirements to EPA's standards. A. NRC is Not Legally Bound To Conform EPA Mill Tailings Standards To The Extent hat Rey Exceed he Statutory Jurisdiction Of.That Agency Under UMTRCA Administrative agencies are statutory creatures, and they must faithfully adhere to their statutory jurisdiction. Atchison, Tooeka & Santa Fe Railway Co. v. ICC, 607 F.2d 1199,1203 (7th Cir.1979) (Atchison); Summit Nursing Home. Inc. v. United Ststes. 572 F.2d 737, 742 (Ct. Cis.1978); United States Steelworkers of America, AFL-CIO v. NLRB. 390 F.2d 846, 851 (D.C. Cir.), cert. denied. 391 U.S. 904 (1968). "There can be no doubt that the authority of an administrative agency to promulgate regulations is limited by the statute authorizing the regulations." Real v. Simon. 510 F.2d 557, 564 (5th Cir.1975). Moreover, "it is axiomatic that no order or regulation issued by an administrative agency can confer, on it any greater authority than it has under statute." t 4/ Pub. L. No. 95-604, 92 Stat. 3021 (1978). Sj As stated by the Supreme Court in Larionoff: The power of an administrative officer or board to administer a federal statute and to prescribe rules and regulations to that end is... [only] the power to adopt regulations to carry into effect the will of Congress as expressed by the statute. A regulation which does not do this, but ooerates to create a rule out of harmony with the stetute, is a mere nullity. 431 U.S. 864, 873 n.12 (1977), quoting Manhattan General Eouicment Co. v. Commissioner -- of' Internal Service. 279 U.S.129,134 (1936) (emphasts acced). Accord Presovtertan St. Luxe's Mecical Center v. NLRB, 653 F.2d 450, 481 (10th Cir.1981). 5-

Office of Consumers' Counsel v. FERC, 655 F.2d 1132,1148-1149 n.32 (D.C. Cir.1980) (Consumers' Counsel).i/ Agency action taken in excess of its statutory jurisdiction is a " mere nullity" and of "no effect." Larionoff at 364, 873 n.12 (1977); City of Santa Clara. California v. Andrus. 572 F.2d 660, 677 (9th Cir.1978), cert. denied. 439 U.S. 859 (1973) (City of Santa Clara). Furthermore, "(ilt is fundamental that an agency charged with implementation of a statutory framework ordinarily possesses no authority I to deviate from or abdicate its statutory responsibilities." United States v. City of Detroit, 720 F.2d 443, 451 (6th Cir.1983) (City of Detroit) (emphasis added). The position taken by NRC that its actions in this rulemaking are " essentially nondiscretionary" and " legally mandated" is untenable under the well-established, funda-mental principles of statutory construction stated above. NRC is the " lead" agency charged with implementation of UMTRCA.1/ As such, NRC is under a mandatory, nondiscretionary duty to carry out faithfully Congressional intent in that Act. To adhere to this primary and controlling duty to uphold Congressional intent, NRC must necessarily consider EPA's standards in relationship to UMTRCA's requirements before adopting them as a part of its regulations. For this agency to do otherwise would be a violation of its ooligation to implement Congress' intent in UMTRCA and an abdication of its responsibilities under that Act. S_e_e, Atchison, suora, e and City of Detroit, suora. 6f Accord National Association of Resrulated Utility Commission v. FCC, 533 F.2d 601, 617 (D.C. Cir.1976) ("' wide latitude' in the exercise of delegated powers is not, t equivalent of untrammelled freedom to regulate activities over which the statute fails to confer... authority"). S_ee also Ernst & Ernst v. Hochfelder, 425 U.S.185, 213 - t 14 (1976); Dixon v. United States 381 U.S. 68, 74 (1965); Stark v. Wickard, 321 U.S. 288, 309-10 (194'4); Manhattan General Equipment Co. v. Commissioner of Internal Revenue, 297 U.S.129,134 (1936); International Railway Co. v. Davidson, 257 U.S. 506, 514 (1922); Real v. Simon, 510 F.2d 557, 564 (5th Cir.1975). 1/ H.R. Rep. No.1480, Part 1, 95th Cong., 2d Sess.13,15-16 (1978).. -

The mere issuance by EPA of mill tallings standards cannot alter NRC's oblig tions. EPA cannot by regulation confer on itself any greater jurisdic:fon than it has under UMTRCA or alter the ocligation of NRC to adhere to Congressional intent in that act. See Consumers' Counsel, suora. Indeed, to the extent that EPA's standards exceed its statutory jurisdiction. they are a " mere nullity" and of "no effect." Larionoff, suora: ' City of Santa Clara, suora. Under the ordinary dictionary definition, " nullity" means "the fact of being null and void"; "an act having no legal validity." American Heritage Dictionarv of the English Language (1978) at 900. Thus, NRC is under a' duty to conform to EPA standards only to the extent they are within that agency's stat jurisdiction and do not intrude on jurisdiction reserved to NRC. That no court has yet invalidated EPA's star.dards on jurisdictional grounds is not controlling. NRC's first obligation, as with any administrative agency, is to conform to Congressional intent. Under UMTRCA, NRC is not required to conform to gy, EPA standard: Section 84a(2) of AEA, as added by UMTRCA, requires precisely that NRC conform only to " applicable general standards" promulgated by. EPA.8/ Implicitly, this provision grants NRC discretion, in the first instance, to determine if EPA's standards are " generally applicable standards." Furthermore, such discretion is consistent with the right of each administrative agency to determine, in the first instance its jurisdic tion. F.T.C. v. Ernstthal. 607 F.2d 488, 490 (D.C. Cir.1979). ~ ~~ Moreover, NRC's function under Section 84a(2) cannot be as prefunctory as its proposal suggests in view of Congress' further direction that NRC proceed through a separate rulemaking with notice and opportunity for comment. Act of January 4,1983, 8] Nothing in the 1983 amendments to UMTRCA alters this responsibility. On the contrary, Section 18(a)(3) of the amendments states: Section 275(f)] may be construed as affecting the authority"Nothing in this subsection [i.e., Commission under Section 84 to oromuirate regulations to protector resoonsibilitv of the ~ ~ safety and the envtronment." puolic healtn and 2067, 2078 (1982). Act of January 4,1983, Pub. L. No. 97-415, 96 Stat. _

S 18(a)(3), Puo. L. No. 97-415, 96 Stat. 2073. If NRC's function were merely ministerial - as the proposal suggests - such a rulemaking proceeding would serve no useful purpose, and such a useless act cannot reasonaoly be assured to have seen Cong ess' intent. When Congress intends such a ministerial function for one agency in relation to another, it does not require two separate notice and comment rulemakings and it states its intent in no uncertain terms. For example, in the Coal Mine Safety Act of 1969, Congress provided for establishment of any necessary mandatory health standards in ar single rulemaking proceeding in which the Secretary of the Interior was required to propose and finalize such standards as the Secretary of Health, Education and Welfare transmitted to him. Pub. L. 91-173, 83 Stat. 745, 30 U.S.C. S 811 (1982). Finally, to accept the premise that NRC is duty bound under UMTRCA to adopt without question EPA standards would render provisions of UMTRCA totally ineffectual which is an unfavored statutory construction that is to be avoided. M Hurhes Air Corooration v. Public Utilities Commission. 644 F.2d 1334,1338 (9th Cir.1981). If NRC is duty bound to adopt the standards EPA has issued, Section 275(d) (giving NRC implementation and enforcement power), Section 84(a)(3) (giving NRC authority to issue general requirements for potential nonradiological hazards), and Section 84(c) (giving NRC authority to adopt licensee proposed site specific alternatives) are all totally meaningless. In effect, NRC seeks to avoid the jurisdictional issue by reliance on Section 84(c) of UMTRCA, as added by the Act of January 4,1983, Pub. L. No. 97-415, 96 Stat. 2079, which provides that licensees may propose and the Commission may adopt site specific alternatives to specific requirements adopted and enforced by NRC. Based on this provision, NRC states that it can adopt, without EPA concurrence, any site specific alternative that protects public health. EPA, however, asserts in its comments on the proposal that in view of NRC's duty to conform to its standards under Section 84(a)(3) that EPA has a right of concurrence in any such site specific alternative as.

+ s provided in its standards. This conflict between Sections 84(a)(3) and 84(c) tha seeks to construct may be avoided if NRC would examine the basic requiremen UMTRCA with respect to the jurisdiction of the two agencies. If NRC did so, it would determine that no conflict between the two provisions exists, as NRC need co only to EPA standards that are " applicable general standards," which is to s fully documented below: those that apply outside site boundaries and impose no site specific design, engineering or management requirements. ne conflict between EPA and NRC that now exists is unnecessary.

Indeed, such conflicts were intended to be avoided in UMTRCA. In the floor debate on S a related and substantially similar bill to that ultimately enacted as UMTRCA, Senat Domenici states:

A basic orinciole of the agre; ment is the creation of a unified - regime for mill tailings so that the various distinct materials which make up a single mill tailings pile need not be subject to fr(algmented, duplicative and potentially conflicting regula-tory activities by different government agencies. 124 Cong. Rec. S15323 (daily ed. September 18,1978) (emphasis added). Only a geographic boundary between the jurisdictions of the two agencies, such as the site boundaries, consistent with the pre-existing division stated in AEA achieves this bas l-principle. That tailings piles will exist into the indefinite future does 'not alter the importance of a boundary in the regulatory scheme, Congress was aware of this fac when it expressly required transfer of ownership of disposal sites to the government and NRC licenses for them in perpetuity, which necessarily requires a boundary and restricted area. Section 83 of AEA, as added by UMTRCA, 42 U.S.C. S 2113. In summary, NRC is not obligated to adopt g standard promulgated by EPA, but only " applicable general standards." For the agency to refuse to consider whether EPA standards are such within the meaning of UMTRCA is an abdication of its responsibilities under UMTRCA that disrupts the intended scheme of that act, renders this rulemaking a meaningless exercise, and creates needless conflicts between the i n.,.,,. . -~ - - JL-

provisions of UMTRCA - all in conflict with fundamental principles of administrative law. B. EPA Standards For Mill Tailings Are Not " Generally Applicable Standards" As Congress Intended In UMTRCA Purportedly exercising his authority under Section 275(b) of the Atomic Energy Act, EPA's Administrator signed and released to the public final uranium and thorium processing sites standards on Septemoer 30, 1983, which were thereafter promulgated on October 7,1983,48 Fed. Reg. 45,926, elsec. establishing radiological and nonradiolog-ical standards for uranium and thorium mill tailings.9./ 1. Indisputably, EPA's Standards Apply Within Site Boundaries And Im-pose Design. PMwing. And Management ReLmments EPA's radiological standards require that tallings disposal sites be " deigned" to assure that radon emissions from the surface of tallines oiles will be Ilmited to 20 picocuries per square meter per second (pCi/m /sec) (the " radon emission standard"). 2 48 Fed. Reg. 45,947 (1983) (to be cecified at 40 C.F.R. S 192.32(b)(1)(li)). According to EPA, the primary purpose of its radon emission standard is to require a thick earthen cover, or equivalent, over the tailings pile. 48 Fed. Reg. 45,930-45,931; 45,940. All active tailings piles are within the boundaries of mill sites. EPA also requires cleanup of radium in soil within the licensed mill site area. whenever levels exceed 5 picoeuries per gram (pCi/g) in the first 15 centimeters of soil surface averaged over 100 square meters or 15 pCi/g in any 15 centimeter layer below the surface averaged over the 9] The final standards for uranium mill tailings are identical to those for thorium mill tailings. Se_e 48 Fed. Reg. at 45,947 (1983) (to be codified at 40 C.F.R. 5 192.41). e EPA's final active site standards also require thorium mill tallings to meet the "25 i millirem standard," which is already applicable to uranium mill tailings. Comoare 40 l C.F.R. 5 190.10(a) (1983) with 48 Fed. Reg. at 45.947 (1983) (to be cocitiec at 40 i C.F.R. S 192.41(d)). Therefore, " mill tailings" as used herein refer to both uranium l and thorium tailings. \\ :

4 same area (the " radium in soil standard"). 48 Fed. Reg. 45,947 (1983) (to be codified at 40 C.F.R. 5 192.32(b)(2)). In addition, the controls chosen to implement these standards must be " designed" to be effective for 200-1,000 years (the " longevity standard"). 48 Fed. Reg. 45,947 (1983) (to be codified at 40 C.F.R. S 192.32(b)(1)(i)) (emphasis added). Ostensibly, EPA's groundwater standards are primarily concerned with protection of groundwater from nonradiological constituents.M/ EPA's groundwater standards consist of a " primary standard" and a " secondary standard." In significant part, EPA's groundwater standards are the same standards previously adopted by that agency under the Solid Waste Disposal Act for surface impoundments.l.l../ Indeed, EPA's groundwater standards for mill tailings merely incorporate by reference with minor exception, the detailed SWDA management requirements for surface impoundments.l.2./ EPA's " primary standard" requires installation of a liner beneath all new tailings piles and lateral extensions of existing piles to prevent non-radiological constituents from entering groundwater or the soil under such oiles. 40 C.F.R. 5 192.32(a)(1), incorporating by reference 40 C.F.R. S 264.221 (1983) (with minor amendments); se,e, 48 Fed. Reg. 45,946-45,947. While EPA's " standard" does not specify expressly a synthetic liner, the Preamble to the standards states: "The primary standard, 40 C.F.R. 264.221, can usually be satisfied only be [ sic] using liner materials (such as olastics) that can retain all wastes." 48 Fed. Reg. 45,941 (emphasis added); sje, also EPA, Final M/ EPA concluded that radiological constituents in mill tailings do not pose a significant problem to groundwater. 48 Fec. Reg. at 45,929. Nonetheless, EPA established certain radiological groundwater standards. 48 Fed. Reg. at 45,947. AMC's discussion applies equally to EPA's radiological and nonradiological groundwater standards, although nonradiological constituents are emphasized because this is the primary focus of EPA's groundwater standards. g/ 45 Fed. Reg. 33,066 (May 19,1980). 12/ See AMC Rely Brief in Active Site case. 1

4 Environmental Imoact Statement for Standards for the Centrol of Bvoroduct Materials from I'ranium Ore Processing (40 C.F.R.192). EPA 520/1-83-008 (Septemoer 1933) (FEIS), Vol. II. at A.1-25 (Response to Comment 16). In theory, NRC is authorized to grant exemptions to the liner requirement, but "only if migration of hazardous constitu-ents into the groundwater or surface water would be prevented indefinitelv." 48 Fed. Reg. 45,941; ge also 40 C.F.R. S 192.32(a)(1), incorporating by reference 40 C.F.R.- S 264.221(b)(1983); 48 Fed. Reg. 45,946-45,947 (emphasis added). EPA's ifner ' standard" operates within the boundaries of the mill tailings sites. See FEIS, Vol. II, at A.1-28 (Response to Comment 24). Moreover, the liner requirement and the implicit requirement that it be synthetic are engineering or control technology requirements. EPA's " secondary standard" requires that groundwater at the edge of the tallings pile be protected as if it were a source of drinking water for those constituents covered by EPA's National Interim Primary Drinking Water Regulations. 40 C.F.R. 5192.32(a)(2), incorporating by reference 40 C.F.R. 5 264.92 (1983); 48 Fed. Reg. 45,947 (emphasis i addec)., Numerous other constituents are controlled at the edge of the tailings oile, with a prohibition against any increase in background concentrations. 40 C.F.R. 5192.32(a)(2), incorporating by reference 40 C.F.R. SS 264.93, 264.94 (1983). See 48 Fed. Reg. 45,947 (emphasis added). Under limited conditions and subject to a showing that corrective action is impracticable, EPA authorizes NRC (or Agreement States) to establish on a t site specific basis alternate concentration limits at the edge of the tailings oile so long i 1 as background or drinking water concentrations will be met no further than either (1)- t 500 meters from the edge of the tailings oile or (2) the site boundarv. whichever is closer. 40 C.F.R. 5 192.32(a)(2)(lv), incorporating by reference 40 C.F.R. S 264.95 (1983); 48 Fed. Reg. 45,947 (emphasis added). Alternate concentration limits at the edge of a tailings oile that would allow background or drinking water concentrations to be exceeded beyond (1) 500 meters from the oile or (2) the site boundarv. whichever is closer, may be adopted by NRC (or an Agreement State) only with EPA's concurrence. _ _

l, 48 Fed. Reg. 45,947 (emphasis added). EPA's groundwater standards also require that a detection monitoring program be established at the edge of the oile and specifies a detailed water sampling program for licensees. 40 C.F.R. 5192.32(a)(2)(iii), incorporating by reference 40 C.F.R. 5 2S4.98 (1983); 40 C.F.R. 5 264.98(g)(1), referencing 40 C.F.R. 264.97(a)(1); 48 Fed. Reg. 45,947 (emphasis added).M/ Thus EPA's secondary standard" operates within the boundaries of the mill sites and imposes design, engineering and management requirements. 2. Under UMTRCA EPA Has No Jurisdiction To Issue Standards That Are Effective Within he Boundaries Of Mill Site Locations Or hat Impose Management, Design, Or Enrineering Requirements (a) Use Of Similar Language In UMTRCA To That Used In The 1970 Reorganization Plan Presumptively Indicates hat Con-gress Intended The Same Jurisdiction Limits To Apply In Both Cases Section 275(b)(1) of AEA, as added by UMTRCA, limits EPA's jurisdiction to the promulgation of " standards of general ecolication for the protection of public health, safety, and the environment from radiological and nonradiological hazards associated with" uranium mill tailings. 42 U.S.C. S 2022(b)(1) (emphasis added). Section 275(b) also states that "imolementation and enforcement" of such standards "shall be -the responsibility" of NRC and Agreement States, respectively. 42 U.S.C. S 2022(d) (emphasis added).M/ M/ As the AMC Reply Brief in Active Site case details, EPA in its mill tailings standards adopts by incorporating its SWDA regulatory program numerous " management" requirements for licensees. M/ Further, Section 84 of AEA also states that " management" of mill tailings will be carried out "in such a manner... as the Commission [NRC] deems appropriate to protect the public health and safety" "from radioloetcal and nonradiological hazards - associated with" mill tailings. 42 U.S.C. S 2114(alll) (emphasis added); see also 42 U.S.C. S 2114(a)(3). _________o'

The language of UMTRCA in defining EPA's authority is the same or suostantially similar to language used in Reorganization Plan No. 3 of 1970, which was specifically ratified by Congress. 5 U.S.C. App., p. 1132-1133 (1930), 84 Stat. 20S6 (1970 Reorganiza-tion Plan). Under the 1970 R'eorganization Plan, EPA's jurisdiction was limited to promulgation of " generally applicaole environmental standards," which were defined expressly to: mean limits on radiation exoosures or levels, or concentrations or quantities of radioactive matettals. in the reneral environment outside the boundaries of locations uncer the control of persons cossessing or using radioactive material.

5. U.S.C. App. p. 1133 (1982) (emphasis added).

In his accompanying message, the President emphasized that the Atomic Energy Commission (AEC) was to " retain responsi-i bility for the implementation and enforcement of radiation standards through its licensing authority." & (emphasis added). This division of jurisdiction between EPA and AEC (now NRC) established in the 1970 Reorganization Plan was thereafter affirmed on numerous occasions.l!/ l l 15/ In October,1973, a dispute arose between AEC and EPA concerning division of ) jurisdiction established in the 1970 Reorganization Plan. Comoare Memorandum to the President from Dixy Lee Ray, Chairman, Atomic Energy Commission (Motion for l Summary Disposition), with Memorandum to the President from Russell E. Train, Administrator, Environmental Protection Agency (Motion for Summary Disposition). Thereafter, Roy L. Ash, Director of the Office of Management and Budget, for the President, resolved this jurisdictional dispute. In so doing, Ash stated: EPA has construed too broadly its resconsibilities, as set forth in Reorganization Plan No. 3 of 1970, to set " generally aoolicable environmental standards for the protectron of the general environment from radioactive material." EPA should continue. under its current authority, to have responsibility for setting standards for the total amount of radiation in the reneral environment from all facilities comoined in the uranium fuel cycle, i.e.. an ambient standard which woulc have to reflect AEC's findings as to the practicability of emission controls.

Adoption of terminology in Section 275 and Section 34 of AEA, as added by UMTRCA. that is the same as or substantially similar to that used in the 19 0 Reorganization Plan indicates presumptively that Congress intended the same meaning to apply in both cases, unless refuted oy clear evidence of an intent to the contrary.M/ (cont.) Memorandum from Roy L. Ash, Director, Office of Management and Budget, to Administrator Train and Chairman Ray re: responsibility for setting radiation protection standards, dated December 7,1973 (emphasis added). (MOU) between EPA and AEC.This division of jurisdiction was also affirmed in two Memoranda of See 38 Fed. Reg. 24,936 (September 11,1973) and 38 Fed. Reg. 32,965 (November 29,19'U). See also Memorandum from Geraldine M. Rubar, Senior Attorney, GAO-OGC, to Rooert E.L. Allen, Jr., Assistant Director, CEDD, re: EPA Radiation Programs Standards Setting and Monitoring (GAO No. B-166506), dated July 30,1976. In 1975, describing its jurisdiction with respect to NRC licensed facilities - including uranium mills - EPA recognized that its jurisdiction extended only setting "outside the boundaries" standards. In its Final Environmental Impact Statement to for 40 C.F.R.190, EPA states (at page 19): Two points are relevant to EPA's authority to set ~ - ' - environmental radiation standards. First.... the standards can apply only outside the boundaries of facilities oroductne radioactive effluents. The required environmental protection can be provideo within this constraint... Secondiv. EP A can only set standards: the authoritv. to regulate soecific ~ - ~ facilities was not transferred by Reorranization Plan No. 3. ~ Application ano enforcement of these standaros against specific facilities is the responsibility of the NRC. EPA, 40 C.F.R. 190 Environmental Radiation Operations of Activities in the Uranium Fuel Cycle: Protection Recuirements for Normal ~ ~ ~ . EPA 520/4-76-016 (November 1,1976). Final Environmental Statement. ~ 16/ See Erlenbaugh v. United States. 409 U.S. 239, 243-244 (1972); Atlantic Cleaners JDrvers v. United States. 286 U.S. 427, 433 (1932); Hodgson v. Proohet Comoanv, 472 F.2d 196, 204 (10th Cir.1973); United States v. Yeatts 639 F.2d 1186 (5th Cir.), cert. denied. 452 U.S. 964 (1981); Hargrave v. Okt Nurserv. Inc., 646 F.2d 716, 720 (2d Cir. 1980); Samosell v. Straub,194 F.2d 228, 23019th Cir.1951), cert. denied. 343 U.S. 927 (1952). Su also 2A J. Sutherland, Statutory Construction S 51.02 (4th ed.1973). Section 275(b)(1) uses the phrase " standards of general acolication for the protection of the puolic health, safety and the anytronment," wntle the 1970 Reorganization Plan, as ratified by Congress, uses the phrase "such generally acolicable environmental standards for the protection of the general environment." That no 9

Indeed, EPA's General Counsel has acknowledged in a legal opinion that EPA's to promulgate " generally applicable standards" under UMTRCA was "modelled c!cselv on comoartole authority contained in the Atomic Energy Act as transferred to EPA in Reorganization Plan No. 3 of 1970."l~./ For this reason, the general counsel conclude The concept of generally aoolicaole standards in UMTRCA should be understood, therefore, in the lient of the same term as used in that Plan. Under Reorganization Plan No. 3, generally applicaole standards are " limits on radiation exposure or levels, er concentrations or quantities of radioac-tive materials...." Perry Memorandum No.1 at 3 (emphasis added). Although deleted from the quotation of the plan by this legal opinion, the 1970 Reorganization Plan continues "In the gene environment outside the boundaries of locations under the control of persons pos or using radioactive materials." 5 U.S.C. App. p. 1133 (1982) (emphasis added). Accordingly, by using the same term in Sections 275 and 84 of AEA as used in the 1970 Reorganization Plan, Congress (1) limited EPA's jurisdiction to the develop of standards for potential radiological and nonradiological hazards effective outside mill site boundaries, and (2) preserved NRC's regulatory and licensing authority to dev i (cont.) meaningful difference was intended by Congress in these two phrases is indicated by the similar, although not identical, language of Section 275(b)(2) and Section 84(a)(2), which use the phrases "such generally aoolicable standards" and "apolicable general standards," respectively, in oescribmg EPA's autnerity. 17/ Tailings Radiation Control Act," Memorandum of October" Authority to Pr 16, 1981, from Robert M. Perry, General Counsel, to Kathleen M. Bennett, Assistant Administrator for Air, Noise and Radiation at 3 (Perry Memorandum No.1) (emphasis added); see also " Legal Issues in Inactive Mill Tailings Rulemaking," Memorandum of October 16, 1981, from Robert M. Perry, General Counsel, to Kathleen M. Bennett, Assistant Administrator for Air, Noise and Radiation (Perry Memorandum No. 2) at 2.

management, design, engineering and site specific requirements necessary to offsite standards.M/ (b) The Legislative History Of UMTRCA Confirms That Congres Intended To Limit EPA's Jurisdiction Consistent Wit 1970 Reorranization Plan ~ The legislative history of UMTRCA at each critical stage of its deve (namely, (1) as reported by the House Interior Committee, (2) as reported o se Commerce Committee and as initially passed by the House, and (3) as p 4 Senate as a substitute amendment for the House-passed bill and thereaft t g/ This division of jurisdiction between EPA and NRC has been recognized in other environmental statutes. In the Clean Water Act EPA was given express authority to regulate radioact pollutants. 33 U.S.C. 5 1362(6) (1976). of that Act, the Supreme Court held that EPA had no authority to special nuclear, and byproduct material that was subject to NRC jurisdiction. 24 (1976). Indeed, the Court noted that Train at intent to preserve in the Clean Water Act the division of authority set fo i 1970 Reorganization Plan. % n.20. e 42 U.S.C. S 7401, gm (1982).Similarly, the Clean Air Act also authorizes E Report the floor manager for the bill introduced a document clar l is limited to setting "outside-the-fence-line emission st i Report (1977); Statement of Intent; Clartfication of Select Irovisions as appear Senate Committee on Environment and Public Works, 95th Cong.,2d Sess., A L History of the Clean Air Act Amendments of 1977. 320 (Comm. Print 1978) (emphasis ~ added). term disposal of high level, man-made radioactive wastes jurisdiction to outside the boundaries, Pub. U.S.C. 5 10141 (1982). L. No. 97-425, 96 Stat. 2201, 2228, 42 I In short, the division of jurisdiction first stated in the 1970 Reorganization Plan clear showing of intent to do so, which is not the case here. r 23-24 (1976). I I,

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I by the House)19./ supports the conclusion that Congress adopted a division of furisd between NRC and EPA equivalent to that of the 1970 Reorganization Plan for both radiological and nonradiological constituents of mill tailings. (i) The House Interior Committee Bill The intent of the House Interior Committee is unambiguous. EPA's jurisdiction under UMTRCA was to be the same as that under tae 1970 Reorganization Plan with respect to both radiological and nonradiological aspects of tailings. Describing EPA's intended authority, the Report of the Committee on Interior and Insular Affairs states: AUTHORITY OF THE ENVIRONMENTAL PROTECTION AGENCY It is the responsibilltv of the Environmental Production (sic] Agency to estactish generally applicable standards and criterta for the protection of the general environment. considertne radiolarical and nonradiological asoects of taillnes. The EPA standards and criteria should be developed to limit the expo-sure (or ootential exoosure) of the oublic and to orotect the general environment from either radiological or nonradiolort-cal suostances to acceptacle levels through suen means as allowaole concentrations in air or water, quantities of the substances released over a period of time, or by specifying i maximum allowable doses or levels to individuals in the general population. The EPA standards and criteria should not interiect any detailed or site specific recuirements for management. technotorv or enemeertnr methods on licensees or on the Department of Energy. Nor shoulo EPA incorocrate any recuirements for permits or licenses for activities con-cerning urantum mill tailings which would duplicate NRC regulatory authority over the tailings sites. 19/ o7 its consideration in both the House and Senate.UMTRCA, as ultimately enacte For NRC's convenience, AMC is providing a short summary of the course of its consideration and a side-by-side comparison of Sections 84 and 275 of H.R.13650 at the relevant stages of their development, together with related provisions appearing in S. 2584, a Senate bill dealing with the same issues, which passed the Senate on September 18, 1978. SE 124 Cong. Rec. S15310-35 (daily ed. September 18, 1978). in the AMC Reply Brief in Active Site case as Addendum A.The side-by-side comparison appea -.

e e Section 206 recuires the Environmental Protection Agency to set general standarcs and criteria for the protection of the environment outside the boundaries of mill tailings disposal sites. The standarcs anc criteria would be soolicable to both radiological anc nonradiological hazarcs in tne olles. H.R. Rep. No.1480, Part 1, 95th Cong., 2d Sess.,16-1~, 21 (1978) (emphasis added). Describing NRC's authority under UMTRCA, the House Report states: AUTHORITY OF THE NUCLEAR REGULATORY COMMISSION e e e In establishing requirements for promulgating regulations for licensing or for oversight of the Department's (Department of Energy} remedial activities, the Cc,r...nissig must set all standards and requirements relatint to manneement +-- x-ts, specifle technotory, engineerint methods, and procedures to be employed to acnieve desired levels of control for limiting public exposure, and for protecting the general environment. The Commission's standards and recuirements should be of such nature as to specifv, for example, exclusion area restrie-tions on site boundaries. surveillance recuirements, detailed engmeering recuirements. including lining for tailings conds. depth, and tvoes of tallings covers. Doculations limitations. _- or institutional arrangements such as financial suretv reoutre-ments or site security measures. The Commission should issue all necessary permits or licenses for uranium mill tailings sites. The NRC is also responsible for implementing general stan-dards and criteria promulgated by the Administrator of the Environmental Protection Agency. NRC must assure that the technology, engineering methods, operational controls, surveillance requirements and institutional arrangements em- + played at the sites provide the necessary barriers and levels of control to limit public exposure, and protect the environ-i ment from radiological and toxic nonradiological substances associated with uranium mill tailings materials, as specified by the EPA standards and criteria. H.R. Rep. No.1480, Part 1 at 16 (emphasis added).3.0/ 20/ Most recently, a March 23, 1984, letter to Nunzio Palladino, Chairman of NRC, Tiom Congressman Udall. Chairman of the House Committee on Interior and Insular i Affairs and a prime author of UMTRCA, reaffirms the historical division of jurisdiction. . ~. - - - _ _ - _, L

(ii) 'Ihe House Commerce Committee Bill (cont.) between NRC and EPA: e e e Cong essional intent in oroviding for the Environmental Protection Agenev a standards-setting role for uranium mtil tallings assumeo that such role would be defined by interagenev ar eements develooed oursuant to Reorganization Plan No. 3 of 1970. Under those agreements, the EPA standard would certain to contamination or activities outside the boundarv of the regulated facility, and would not include detailed engineering recuirements or site-specific reoutrements. No subsequent interagency agreements have modifiad this definition of the EPA's standard-setting role, and substantial legislative history exists to indicate that Congress has continued to endorse this approach. e e e The Uranium Mill Tailings Control Act and its legislative history clearly and strongly give to the NRC the primary licensing role for tailings sites, and prohibit dual regulation or oermitting bv any additional Federal arenev. i in AMC's litigation challenging its standards, EPA argues (EPA Brief at 39, 40) that differences in the bill (H.R.13358) as originally introduced by Congressman Udall and the bill (H.R.13650) reported by the House Interior Committee indicate an intent to reject the approach of the 1970 Reorganization Plan. Although not simply stated, EPA seems to suggest that H.R.13650, as reported, directed the agency only to prot the environment outside the boundaries of sites, rather than prohibiting it from " a its standards inside site boundaries as it concedes H.R.13358 did. in AMC Reply Brief in Active Site case, Addendum A.The differences in l An examination of the lan of these two bills indicates that EPA notes a distinction without a difference. guage bills speak of EPA's authority in terms of " generally applicable standards" "for the Both protection of the general environment" "outside the boundaries of" mill processing and mill tailings disposal sites, much as provided in the 1970 Reorganization Plan. i the bill as reported is nothing more than a shorthand version of the original Udall billIndee intent was contemplated from the Udall bill.Nothing in the House Interio l As noted above, it speaks of EPA's i authority in terms of the " generally applicable standards" effects on "outside the j boundary." Moreover, the 1970 Reorganization Plan does not state expressly that EPA standards may acolv only outside the boundary. It too speaks only of " protecting the general environment" outside the boundaries. But, as EPA ltself has recognized (n.14, suora 14-15), the intent of the 1970 Reorganization Plan is that EPA standards may I. _ _ _ _ _ _ _ _ _ _ _ _, _ _ _ _ _

Similarly, the intent of the bill reported by the House Interstate and Foreign Commerce Committee was to adopt the jurisdictional division of the 1970 Reorganization Plan with respect to both radiological and nonradiological aspects of mill tailings. The report of the Commerce Committee indicates this intent in quoting from an August 9, 1978, letter from EPA Administrator Costle to Cong essman Dingell as Chairman of the Subcommittee on Energy and Power. The report quotes the Costle letter as follows: We agree that NRC would establish management recuirements for the uranium mill tailines: that suen requirements would be comparaole, to tne maximum extent practicable, to re-quirements applicable to the possession, transfer and disposal of similar hazardous material under the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976; and that in establishing general management requirements, the NRC would obtain the concurrence of EPA. Under both titles (of the bill 1. EPA would retain its generally -~ aoolicaote standards - setting authority under the Atomic Energy Act of 1954. as amended.... The report then states "[tlhe Committee is satisfied with this resolution of a very difficult problem." H.R. Rep. No. 95-1480, Part 2, at 46 (emphasis added).El/ (cont.) an only outside site boundaries. In the AMC litigetion on its standards EPA also argues (EPA Brief at 39-40) that the House Interior Committee Report indicates an intent to " enlarge" its authority by its reference to EPA authority in terms of " quantities of the substances released over a period of time." This phrase, which appears as one in a series without any reference to the inside-versus-outside-the-boundaries question, is not " clear" evidence of Congressional intent to allow EPA to apply its standards inside mill site boundaries. Given the clear use of "outside the boundaries" in describing EPA's authority elsewhere in the House Interior Committee Report, this statement cannot be used to imply EPA authority inside site boundaries as that agency suggests. ~ 21/ The language of H.R.13650, as reported by the House Commerce Committee, speaks in terms of " generally applicable standards" but.does not expressly define the term Nonetheless, as indicated by the report of the Commerce Committee, as quoted above, the affirmatively stated intent was the same as the House Interior Committee Bill: under UMTRCA, EPA " retained" its pre-existing " generally applicable standard setting authority under the Atomic Energy Act" as stated in the 1970 Reorganization -

The committee was fully aware of the implications of this adoption of the concept that EP A " retain" its " generally applicable standard setting authority under the Atomic Energy Act." The concept of " generally applicaole standards" was considered expressly in hearings held before Congressman Dingell's subcommittee in testimony by EPA's own witness, William D. Rowe, then Deputy Assistant Administrator for Radiation Programs, and Joseph M. Hendrie, then Chairman of NRC. Deputy Assistant Administrator Rowe testified: However, anv such legislative crocosal should also orovide for EPA to promulgate general environmental standards for such matertal so that there will be consistency with the present authority of the Atomic Energy Act and Reorganiza-tion Plan No. 3 of 1970 which gives EPA such authority over present licensaole material. Such authority for EPA standard settine and NRC regulatory authority snould extend ooth to the racioactive and nonradio-active asoects of hazardous materials.... Uranium Mill Tailings Control Act of 1978: Hearings on H.R.11698. H.R.12229. H.R. 12938. H.R.12535. H.R.13049. H.R.13382 and H.R.13650 Before the Subcomm on Enerrv and Power of the House Committee on Interstate and Foreign Commerce. 95th Cong., 2d Sess. 366 (August 2,1978) (hereafter the 1978 UMTRCA Hearings) (cmphasis added). Chairman Hendrie testified that the language of H.R.13650 had been drawn largely from the 1970 Reorganization Plan. 1978 UMTRCA Hearings 396. The the committee understood the 1970 Reorganization Plan's division of jurisdic-tion between EPA and NRC and intended to adopt it in UMTRCA is indicated most clearly by the following exchange between House Subcommittee en Energy and Power Counsel F!nnegan and EPA Deputy Assistant Administrator Rowe and NRC Chairman H:ndrie: I i (etnt.) Plan, which the committee understood from the testimony of both EPA and NRC witnesses limited EPA's authority to standards that apply "outside site boundaries." i.

MR. FINNEGAN. ... Is it your intention to set standards for actions beyond the boundaries of the active and inactive mill at the depository sites? MR. ROWE. In general, when we set acolicable environmental standards, they are outside the councartes of tne sites. hhat we are concerned with is Ine exoosure to the general suolic who are outsice the site coundaries. MR. FINNEGAN. In the same provision there are the words " generally applicable standards," which is a term that you use yourself on page 7 of your testimony. What is encom-passed by that? MR.ROWE. General [lvl apolicable standard is defined in the Atomic Energv Act. This is where the language comes from, and it is the section that we use to set the standards outside the boundaries. It covers standards whien can be quantities, concentrations, and it is particularly defined here as concen-trations or c uantities of material into the general environment. That is how it has been defined. e e e MR. FINNEGAN. Mr. Chairman, I wanted to ask you whether you had any comments to make concerning Section 275 language at page 27 of the bill and how EPA would set standards and how they would apply to sites, either active or inactive. MR. HENDRIE. Yes, Mr. Finnegan, I would like to comment. It seems to me the language I now read in H.R.13650 under Section 206 of the bill is an appropriate definition. I believe the language has been drawn largely from the Reorganization Plan of 1970 which assigned to the EPA the authority for radiological health protection in the sense of the establish-ment of ambient standards, generally applicable standards for - t the protection of health and it now comes down to NRC, from AEC to regulate under those general standards and to lay specific requirements for licensing upon the facilities that we license to make sure that each of those facilities then meets the general standards. It seems to me that the language, as laid out here, defines that in a way which is compatible with the Reorganization Plan 3 and that makes clear their (EP A's) authority to estaDlish those generally aopticaole standards and at the same time also maxes clear tnat, as vou come inside the site boundarv and begin to talk about features of the particular facility being licensed, that that becomes then the orecer province of the NRC to deal with specific license provisions,

means. methods, and so on to meet EP A's ambient standards at the site. MR. FINNEGAN. e Is is your desire that the provistons of parageaphs 1 and 2 apply to such standards only outside the boundaries and therefore anything within the sites to meet tnose standards would be done through NRC - through its own rulemaking or licensing process? MR. HENDRIE. That is the way I would both prefer that the arrangement be set up and would feel it would be an important feature in making clear the furisdictions between the two agencies. I think as we come within site boundaries and begin to deal with specific aspects of facilities that you are verv much into the NRC licensing domain and it is desiracle that the interface Detween the agencies be outside that specific licens-ing. MR. FINNEGAN. Mr. Rowe, do you have any comments? MR.ROWE. Yes, I agree with Mr. Hendrie. Our intention is to work outside the site boundary. e e MR. FINNEGAN. ' You are also in agreement that generally paragraphs 1 and 2 should be prefaced by the idea it means outside the boundaries. & at 392-393, 396-397 (emphasis added). I (iii) 'Ihe Senate Bill i Finally, the Senate also understood that the phrase " standards of general applica-tion" as used in H.R.13650 was intended to continue the division of jurisdiction of NRC and EPA consistent with the 1970 Recrganization Plan with respect to both. radiological and nonradiological aspects of tailings. This uncerstanding is first indicated in the Senate Environment and Public Works Committee's markup of S. 2584, a mill..

tailings bill that is similar to the Senate version of H.R.13650, which was ultimately cn:cted into law. During that markup, when questioned on the ' extent of coordination" between EPA and NRC required under the sill, the committee staff indicated that the bill intended to limit EPA's authority over radiological and nonradiciogical constituents of mill tailings to "off site' standards, as presently was the case under AEA. See _ H? rings on Proposed Committee Amendments to the NRC Authorization Bill Before the Senate Committee on Environment and Public Works. 95th Cong., 2d Sess.10-12, 18 (July 27,19"S) (unpublished).SE/ Second, such intent is supported forcefully by the following statement of Senator Domenici, a co-sponsor of S. 2584, during Senate debate prior to the passage of that bill. Senator Domenici stated: Mr. President the present disjointed regulatory structure for mill tailings fails to provide (assurance that tailings will be properly disposed of in the future]. Under present law, the Nuclear Regulatory Commission may exercise regulatory control over mill tailings only while milling operations are being conducted. Although another Federal agency, the Environmental Protection Agency, has some authority over the disoosal of mill tailings, it lacks broad authority over the generation of the tailings... i The amendment would replace this disiointed regulatory struc-ture with a unified and comprehensive regulatory program. Under the amendment, NRC would have continuous !! censing and related regulatory authority over the generation, i 22/ In AMC's litigation challenging its standards, EPA refers to a statement by Senator Tandolph that describes EPA's authority in terms that, according to EPA, include measures that "quite clearly may apply within" mill site boundaries. For the following rcasons, Senator Randolph's statement may not be interpreted to imply that EPA has p -- on-site jurisdiction under UMTRCA. The issue of whether EPA's standards may apply within site boundaries is not addressed by Senator Randolph. Furthermore, the inference i cf on-site jurisdiction EPA attempts to draw conflicts with UMTRCA and its full legislative history. For example, his description of EPA's authority includes many " site specific" management, design and engineering measures that even EPA acknowledges UMTRCA denied it. Moreover, the inference that EPA attempts to draw conflicts with unambiguous statements, made by others during his committee's markup of S. 2584 (a similar bill to that enacted) - where the Senator was present but did not object - that EPA's standards were to be off-site standards similar to EPA's existing authority under tha 1970 Reorganization Plan. A.stC Brief in Active Site case at 19-20. l :

possession and disoosal of mill tailings. A basic principle of the amendment is the creation of a unified regime for mill talhnes so that the various distinct materials which make up 3 a single mill tailings pile need not be subject to fregmented [stel, duplicative and potentially conflicting regulatorv activities by different government agencies. In accordance with tnis principle, NRC would ce given the authority to set detailed requirements for the disposal of mill tailings, inclucing specific management requirements, and to license disposal sites. 124 Cong. Rec. S15323 (daily ed. September 18,1978) (emphasis added). Oniv a clear boundarv between the jurisdiction of the two agencies with resoect to both radiological i and nonradiological ascects such as the site boundarv. achieves this " basic principle." as the present dispute between NRC and EPA on this issue now amoiv proves. Finally, the Senate's intent to divide jurisdiction between EPA and NRC consistent with the 1970 Reorganization Plan with respect to radiological and nonradiological constituents of mill tailings is indicated by August 9,1978, letters from Carlton Stoiber, NRC. Assistant General Counsel to Kevin Cornell, then Majority Staff Member, and James K. Asselstine, then Minority Counsel, Subcommittee on Nuclear Regulations, Sinate Committee on Environment and Public Works. In those letters, Stoiber describes an ag eement netween the EPA Administrator, Douglas M. Costle, and NRC Chairman, Jcseph M. Hendrie, regarding their agencies' r?spective roles under which EPA would "be responsible for establishing generally arolicable standards and criteria for the protection of the general environment, coasidering radiological and non-radiological 4 aspects outside the boundaries of the tailings sites" and NRC would then implement l cnd enforce such standards and criteria (emphasis added).2,,,/ 3 In summary, the legislative history contains nj positive evidence that Congress intended EPA to exercise on-site or management jurisdiction under UMTRCA, contrary 2_3/ Indeed, the Stoiber letters constitute a contemporaneous construction of the Act by an agency that is charged with its implementation that courts have judged to be entitled to great weight in determining Congressional intent. c,

to established policy in the 1970 Reorganization Plan. As recognized by the Supreme Court in a related context, if Congress had intenced "a significant alteration of the pervasive regulatory scheme emoodied in the AEA"in UMTRCA ene would have expected "a clear indication of legislative intent" of such a change in policy. Train at 23-24 (1976), citing United States v. United Continental Tuna Coro. 425 U.S.- 164,168-169 u976).14./ There is no such " clear indication" in either the language or legislative history of UMTRCA. 1 On the contrary, the language and legislative history of UMTRCA affirmatively supports what is otherwise the natural presumption that flows from Congress' use of I the same terminology in UMTRCA as previously used in the 1970 Reorganization P!an, which it specifically ratified. Congress intended EPA's jurisdiction to promulgate both radiological and nonradiological standards for mill tailings under UMTRCA to extend only to the development of " generally applicable standards." NRC and Agreement States, respectively, were to have exclusive on-site regulatory and licensing furisdiction i to establish necessary management, design and engineering requirements to assure compliance with EPA's generally applicable standards. 3. As EPA Standards Apply Within Site Boundaries And Impose Site ~i-Specifle, Design, Engineering And Management Requirements They Are Not Generally Acolicable Standards" As Intended In UMTRCA -~ l Indisputably, EPA's radon and radium in soil standards operate within mill site boundaries. On its face, EPA's 20 picoeurie radon emission standard applies directly over the surface of tailings elles which are located - without exception - within the M/ In Public Interest, the court held that source, byproduct and special nuclear material were not regulatable by EPA under the Federal Water Pollution Control Act (FWPCA), even thougn the FWPCA defined pollutants subject to regulation under that Act to include " radioactive materials." The court recognized that EP A's regulatory powers over source, byproduct and special nuclear material was limited by the 1970 Reorganization Plan. 426 U.S. at 24, n.20. boundaries of sites licensed by NRC cr Agreement States. 40 C.F.R. 5192.32(b)(1)(fi); 48 Fed. Reg. 45,947. Similarly, EPA's radium in soil standard applies expressly within the " licensed" site. 40 C.F.R. 5 192.32(b)(2); 48 Fed. Reg. 45,947. EPA's 20 picoeurie radon emission standard is also an impermissible design or engineering requirement. Although nominally a numerical limit, this standard is - as EP A ha acknowledgedEl - a " surrogate" to require a thick earthen cover over tailings piles, based on a policy judgment that such a " passive" method - as opposed to " active" or " institutional" methods - is necessary for long-term control. 48 Fed. Reg. 45,930, 43,931, 45,936, 45,940. EPA states: A design limit for (radon] emissions addresses a primary goal of these standards, the placement of a thick, durable earthen cover over tallings, because the (radon 1 limit relates directly to the thickness of the cover....M/ 48 Fed. Reg. 45,940. Thus, EPA seeks to do indirectly what Congress has prohibited it from doing directly. As noted earlier, the House Report in discussing EPA's authority, states that EPA is not to " Interject any detailed or site specific requirements for management technology or engineering methods on licensees" or to " duplicate NRC regulatory authority over tailing sites." H.R. Rep. No.1480, Part 1, 95 th Cong., 2d Sess.16-17 (1978). Decisions on " management concepts." " specific technology" and " engineering methods" - such as the appropriate "deoth and tvoes of tailings covers"; whether controls should be active (i.e., " institutional") or passive (e.g., thick earthen cover), or M/ Washington EPA Active Site Transcript at 84-85. 26/ EPA's intent is confirmed by the agency's final inactive EIS. EPA states that "a radon emission standard implies the need for sufficient earthen cover" and is a " major goal of the disposal standards." In fact, EPA acknowledged a radon emission standard was chosen because of its " direct relation to the cover requirements for tallines." 1 inactive FEIS at 129; 2 Inactive FEIS at D-33 tempnasts added). a comoination of both; and whether buffer, land use or population controls should be permitted - were specifically left by Congress to NRC. 1 at 16 (1973) (emphasis added). Accord 124 Cong. Rec. S15323 (daily ed. September 18, 1973) (Section-by-Section Analysis for Amendment No. 3577 to S. 2584) (emphasis added). Accordingly, EPA's radon standard not only intrudes on NRC's furisdiction inside site boundaries, but also unlawfully attempts to preclude NRC from exercising its statutory role of developing management, design and engineering techniques.E/ EPA's 200 to 1,000 year longevity standard is similarly an engineering or design requirement beyond the scope of its jurisdiction. See 48 Fed. Reg. 45,947 (40 C.F.R. 5 192.32(b)(1)(1)). On its face, EPA's longevity standard is not a limit on exposure or concentrations. Its only purpose, as indicated by the language of this rule, is to allow EPA to control tailings design and engineering requirements, which Congress specifically reserved to NRC. 42 U.S.C. S 2231(x)(2). As such, the appropriate longevity period is within the control of NRC, not EPA. EPA's primary groundwater st:ndard, i.e., its liner requL ement, operates within the boundary of mill sites. Likewise, the designated compliance point for the " secondary standard" is the edge of the tallings elle. a point within the boundaries of mill sites. Moreover, in those cases where the EPA standards permit NRC to establish alternate concentration limit 7. at the edge of the pile, EPA's " secondary standard" operates within the boundaries, because EPA's normally applicable background or drinking water limits may not be exceeded beyond 500 meters from the olle or the site boundarv, whichever is closer. Finally, EPA's requirement that it concur in alternate concentration limits, whenever EPA's normally applicable background or drinking water limits might be exceeded beyond 500 meters from the olle or the site boun6ry, whichever is closer. 27/ That EPA cannot issue " design" standards is recognized by EPA's general counsel. Ferry Memorandum No.1 at 3 (OGC has previously interpreted this language as precluding " work practice or design standards"). _ _ _ _ _ _ _ - _ _ _ _ _ _ _

t not only unlawfully operates within the boundaries of the sites, but also interfects EPA into NRC's (or an Agreement State's) regulatory and !! censing jurisdiction. Additionally, EPA's primary liner requirement is a " detailed encineering" require-ment (which specifically includes " lining for tailings ponds"), the application of which Congress specifically contemplated to be within NRC's sound discretion. H.R. Rep. 1480, 95th Cong., 2d Sess. Part 1 at 16, Part 2 at 46 (1978) (emphasis added). Similarly, EPA's attempt to mandate the use of synthetic liners establishes " specific technology" for the sites. As the House Report indicates, the appropriate technology to be employed is a matter for NRC alone to decide. h!,, Part 1 at 16. Furthermore, EPA's secondary groundwater standards by their incorporation of detailed management requirements are matters left to NRC's primary authority under Section 84(a)(3). In summary, EPA's standards are in violation of its statutory jurisdiction and intrusive upon NRC's jurisdiction. For NRC to conform to them would be a violation of its obligation to uphold Congressional intent and an abdication of its responsibill-ties.E 2_8/ Section 275(b)(2)'s requirement that EPA's nonradiological standards provide 8 " protection" of human health and the environment " consistent" with " applicable" standards issued by it under the Solid Waste Disposal Act (SWDA) cannot be interpreted to give EPA more jurisdiction with respect to nonradiological aspects of mill tailings than radiological aspects. i First, Section 275(b)(1) states without any distinction that EP A "shall... promulgate standards of general aoolication for the crotection of oublic health, safety, and the environment from radioloeteal and nonradiological hazarcs associated" with mill l tailings (emphasis added). Section 275(on2), by stating at the outset "(sluch generally applicable standards promulgated for... nonradiological" hazards, adopts the definition of EPA's authority in Section 275(b)(1) and qualifies the consistency requirement of that subsection. l Second, to interpret Section 275(b)(2)'s " consistency" requirement to grant EPA authority to develop standards that apply within site boundaries or impose management responsibilities cannot ce squared with the overwhelming evidence of Congressional intent. That evidence, as detailed above, affirmatively supports a Congressional intent to preserve the jurisdiction of the agencies first established in the 1970 Reorganization Plan, for both radiological and nonradiological aspects of mill tailings. Moreover, to l 30 I

IL NRC'S REGULATIONS MUST BE BASED ON A FINDING OF SIGNIFICANT RISK i OF HARM TO PUBLIC HEALTH OR THE ENVIRONMENT In Industrial Union Decartment. AFL-CIO v. American Petroleum Institute. 448 U.S. 60" (1980) (Benzene), the Supreme Court invalidated a standard issued by the l l Secretary of Laoce (Secretary) under Section 6(b)(5) of the Occupational Safety and Health Act (OSHA), regulating exposure to benzene, a substance which causes cancer at high exposure levels. Section 6(b)(5) provided 'in promulgating standards dealing i with toxic materials or harmful physical agents" the Secretary "shall set the standard which most adequately assures, to the extent feasible,... that no employee will suffer material impairment of health...." 29 U.S.C. S 655(b)(5) (1982) (emphasis added). After determining a causal connection between benzene and leukemia, the Secretary, l applying his general carcinogen policy, reduced the permissible exposure limit for benzene j to the lowest feasible level, i.e., from 10 to 1 part per million (ppm). The Secretary's rationale for this new standard was ng based on a finding that leukemia had ever been (cont.) interpret the consistency requirement to permit would render Section 84(a)(3), under which NRC may issue " general requirements" for mill tailings sites that conform to i the extent practicable with applicable EPA SWDA requirements meaningless, an unfavored interpretation. I Third, SWDA itself states i Nothing in this (Act] shall be construed to apply to... any-activities on substances which (are] subject to the... Atomic j Energy Act of 1954... except to the extent that such application (or regulation) is not inconsistent with the i requirements of such Act. 42 U.S.C. S 6905 (1982). Under UMTRCA, the definition of byproduct material under AEA was amended to include mill tailings. Accordingly, to the extent that EPA SWDA regulations conflict with Congressional intent in AEA, as amended by UMTRCA, they must sd.ve way. Accordingly, EPA cannot adopt and force NRC to implement SWDA standards that apply within mill site boundaries or that impose site specific, design, engineering or management requirements. 1 e - - - - - ~ - - - ~ ~ - - - - -

Se 1 ATTACHMENT 2

(,:, I /l 6 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT Nos. 83-2226, 83-2227, 83-2277, 83-2504, 84-1349, 84-1352, 84-1482 Al1ERICAN llINING CONGRESS, et al., I Petitioners v. WILLIAll D. RUCKELSHAUS, et al., ',, Respondents On Petition to Review Final Action Of The Administrator Of The Environmental

• Protection Agency '

BRIEF FOR RESPONDENTS F. HENRY HABICHT II Assistent Attorney General Land and Natural Resources Division 11ARGARET N. STRAND BARRY S. NEUMAN, Attorneys. Environmental Defense Section United States Department'o.f Justice Land and Natural Resources Division P.O. Box 23986 Washington, D.C. 20026-3986 0F COUNSEL: (202) 633-2664 A. JAIIES BARNES ~ s General Counsel ' WILLIA!! F. PEDERSEN Associate General Counsel CHARLES S. CARTER Assistant General Counsel 4 Environtaental Protection Agency Washington, D.C. 20460

i r s t . ge "E For the foregoing reasons, EPA has adequately as sessed the risks associated with uranium mill tailings, f* I l and properly concluded that the potential long-term risks f no sufficient to warrant regulation under UMTRCA. See also ! 'EIS A.5-6 (response to comment 7) (J.A. ]. f II. EPA RAS ACTED WITHIN ITS STATUTORY AUTHORITY IN ESTABLISHING STANDARDS OF GENERAL in~. APPLICABILITY THAT APPLY ON-SITE g I j AMC contends that EPA may establish standards that b-I apply only outside the boundaries of mill tailings sites. I { Petitioner contends that this restriction has been violated in three respects : EPA's radon emission limit (or"blux" I* j s:cadard), which regulates the rate of r'adon releases from ?- sill tailings piles; the radium-in-soil cl'eanup standard; i i and the " primary" and " secondary" groundwater standards,.all . ;, i of which operate inside the current boundaries of m'ill tMilings; l g . '[e disposal sites. (AMC Br. at 13-24). 34/ z As we demonstrate below, this challenge lacks ~ ~ cerit. The statute does not prohibit EPA from setting standards r s [ that apply within the boundaries of disposal sites, so long Loc.! as they are generally applicable rather than site-specific. I= td 16/ It should be noted that the radium-in-soil cleanup standard, if achieved, will by definition apply to land that is released for unrestricted use and which therefore will no longer be within the site. 1

-,_ l , A. The AMC's Argument is Belied By The Plain Language of the Act As AMC notes, the starting point for determining the meaning of a statute is "the language of the statute I itself." United States Lines, Inc. v. Baldridae, 677 F.2d 940, 944 (D.C. Cir. 1982). (AMC Br. at 13). It is therefore striking, although understandable, that AMC is unable to point to any language in the statu.te that supports its con-n: struction. The Act simply does not c'5ntain the "off-site" i limitation urged by AMC. To be sure, ch'e Act requires EPA o promulgate " standards of generEr appl.ica[ ion" to protect " t h'e publichealth, safety,andtheenhkronmentfromradiological ~ and non-radiological hazards associated.with" mill tailings. 4 42 U.S.C. S 2022(b)(1). But nothing in this mandate even remotely suggests that such standards may not apply within, the boundaries of cisposal sites. On the contrary,- when. I 1 a this language is read in conjunction with the Act's s' tace-ment of findings and purposes, 35/ the plain meaning is%phet EPA may promulgate regulations that apply within the boundaries of such sites, if the agency determines that they are an ) j --35/ " Congress finds . that every reasonable effort be made to provide for the stabilization, disposal, and ( control in a safe and environmentally sound manner of such i tailings in order to prevent or minimize radon diffusion into i ene environment 42 U.S.C. S 7901(a) (emphasis added); "The purposes of the Act are to provide - (2) a program to regulate mill tailings. . in order to stabilize and control j such tailings Id. S 7901(b). L U .1

l 1 l ! appropriate means to protect public health and the environment. j AMC relies heavily on the requirement that EPA's r.andards must be "of general application." But clearly, is requirement, which prohibits EPA from promulgating .;te-soecific standards, is not the same thing as prohibiting .gulations that apply within the boundaries of disposal ites. Petitioner's. construct, ion of the Act blurs this tear distinction. EPA's regulati'ons are not site-specific, i i .c are generic standards that apply to all disposal sites. I .A therefore has not violated this sta5utory mandate. .S. The Legislative Historv Supports EPA's Construction ( Because the Act's plain meaning provides EPA with l authority to set standards that operate on-site to accomplish j r.he stacad purpose of protecting the,public health and environ l cent, this Court should rej ect AMC's argument out qf hand,' 3 and need not resort to the legislative history. United' St'ates '- l ,.m j

v. Oregon, 366 U.S. 643, 648 (1960); Markham v. Colonia'b";

,- c 7 3 llortgage Service Co. Associates, Inc., 605 F.2d 566, '569 m I j (D.C. Cir. 1979). But here, the legislative history shows that Congress deliberately chose not to limit EPA's authority in the manner suggested by AMC. In 1970, President Nixon signed Reorganization Plan No. 3, transferring to EPA some of the functions of the i Atomic Energy Commission, ("AEC") (subsequently reorganized in 1974 as the Nuclear Regulatory Commission ("NRC")). As a .$a \\

y s. o I result, the former standard-setting and licensing functions of the AEC are now allocated between EPA and the NRC. The 1970 plan transferred to EPA the authority to set " generally applicable environmental standards," which was defined to include " limits on radiation exposures or levels, or concen-trations or quantities of radioactive materials, in the general environment outside the boundaries of locations under the control of persons processing or using' radioactive materials." (emphasis added). The b'bder left unaltered the.. ,i AIC's authority with respect to the licensing of commercial i operations. l Petitioner AMC argues thit, in enacting UMIRCA, .f. Congress intended to codify all aspects.of the division of l ? responsibility between EPA and the AEC (now the NRC) set forth in Reorganizatien Plan No,. 3, including the limitation on EPA's authority to set standards that apply onlh '"outside s t the boundaries" of licensed sites. (AMC Br. at 14-15). 36/ ', But this is not what happened. gr s. In the House, several bills worked their way through two different ecmmittees. Congressman Udall introduced H.R. .-/ AMC disingenuously argues that UIERCA as enacted contains 36 language "that is the same as or substantially similar to" { that used in the 1970 Reorganiza. tion Plan. A!!C Br. at 14. The fact is that the Reorganization Plan's reference to "outside the boundaries" is conspicuously absent from UMTRCA. As discussed in the following pages, this was a deliberate i choice on the part of Congress. l -- -

j i t 3 11382, which was referred to his Subcommittee on Energy and F..vironment of the Co=mittee on Interior and Insular Affairs. iection 206 of that subcoccittee's draft, dated July 27, 1978, b ded Section 275 to the Atomic Energy Act. It would have c quired EPA to " promulgate generally applicable standards

the protection of the general environment" from radiological J

1i .n.1 nonradiological hazards of mill tailings. It also ? ~. .:acified that "such standards . impose limits on exposures o levels, or concentrations or quantities of hazardous ?.. ,cterials in the general environment outside the boundaries g.l' processing or disposal sites (see Addendum A to this g a Brief, S 275(a)(2)) (emphasis added) -- the identical language j 1 found in Reorganization Plan No. 3. a tj But, as reported out by the full committee on August ,g 11, 1978, the Udall Bill (now numbered H.R. 13650), no longer J4 contained the underscored language restricting EPA-to "off-g p site" standards. Rather than requiring EPA to promul-gate. d ..~~ j standards that acoly "outside" mill site boundaries, the} I g revised committee draf t would have required EPA's standards 5 to orotect the environment "outside" such sites. 37/

.+

1 That this change in language was deliberate and ? j: substantive is indicated by three factors. First, the I l s A i 37/ As reported, the bill required EPA to " promulgate i generally applicable standards and criteria for protection j 0:.the general environment outside the boundaries" of Processing and disposal sites. H.R. Rep. No. 95-1480, Part ? t, suora, at 10. 4 5s . J

y, ,s . Committee Report accompanying the bill conspiciously omits any reference to a site boundary limitation on EPA's authority. Nor is any such limitation mentioned in the summary of the bill, which merely states EPA's authority to protect the environment outside site boundaries. H.R. Rep. No. 95-1480 Part I,'sunra, at 29. Second, in lieu of a limit on "off-site" standards, the report precluded " site-specifi.c" requiremends for n. " management, technology or engineerin%" -, functions which. would be left to the NRC as the implementing agency. Id. at 17. Third, the House Report Onlarged the types of requirements EPA would be authorized to. establish; most relevant,here, the Report specifically indicated that EPA could regulate radon hazards by limiting the "cuantities of the substances released [by a mill tailings pile] over a. 1 a period of time." Id. at 17. This is, of course,"the radon ,, c... emission (flux) standard approach which EPA has decidedsfo-L employ; by definition it applies within the site boundaries, and the House Report makes clear that EPA was to'have the ~ authority to issue such requirements. 38/ ---38/ AMC erroneously claims that the House Report stated that EPA's standards were to be applicable "outside the boundaries AMC Br. at 17. In ract, the Report states that EPA standards should protect health and the environment outside the boundaries. H.R. Rep. No. 1480, suora, Part I at 16-17, 21, reprinted in 1978 U.S. Code Cong. & Ad. News 7438.

j ij I Concurrently with the proceedings in Congressman I ~ Udall's committee, Congressmen Dingell's Subcommittee on I wergy and Power of the Interstate and Foreign Commerce l

• mmittee was also considering H.R. 13650, where the pertinent l

gislative history was e'ssentially duplicated. The subcom- -tree print dated August 4, 1978, required EPA to set stan-l

rds "of general application"_ that "shall apply outside the undaries See Addendum.B to this BriAf, S 275(a)(5).

wever, this site boundary limitati6n was eliminated from .a full committee draft. In its place, as in the Interio$- i Cc :mittee Report, is simply a statement t' hat " stresses that [ [ the EPA standards are not to be si'te-specific." H.Rv Rep. Nc. 95-1480, supra, Part II at 46. (emphasis added). l h Thus, in both committees, the concept of a geography-based limitation on EPA's standard-setting authority evolved .I into a functional distinction based on EPA's and NRC's respec-eh j lJ tive standard-setting and licensing roles: EPA would' establish A ,4.. 'g standards of general applicability, and NRC would implemeht-l ls l j cnd enforce those standards on a site-specific basis. w { Following the House's passage of H.R.13650, that { bill was put before the Senate, 124 CONG. REC. 36687 (1978), i j Which had already considered its own bill. Senator Garn, i Chairman of the Nuclear Regulatory Subcommittee of the Senate Committee on Energy and Natural Resources, proposed an amend-Cent (S. 2099) in t'he nature of a substitute to the House-passed ~ bill,124 CONG. REC. 36688,. which had been " coordinated in advance" i 1'4u----------------- ------

7-s.. with the House committees,_i_d. 36695. As relevant here, it also made no mention of any site-boundary limitations on EPA's authority. The Senate Environment and Public Works Committee, chaired by Senator Randolph, cosponsored the Garn amendment and endorsed the bill, 124 CONG. REC. 36696 (1978). Senator 'i Randolph stated that the section-by-section analysis of a similar Senate bill, S. 2584, prov;ided the basis' for his understanding and support of H.R. 13h50. l'24' CosG. REC. 36697 (1978). That analysis " attempted to further define" i the relative roles of the NRC add EPA," and stated that "the' [ EPA) is . to prescribe generai standards of performance, not specific management requirements and. not site-specific." Id. Senator Randolph, elaborating on that analysis, stated 1 his understanding that. EPA's regulations could include general l standards for site design and preparation; general. pile i, c. stabilization standards; and limitations on emissions fr.om ,, g.s. mill tailings "in the air or ground or surface waters 1.# J." All of the measures described by Senator Randolph quite. i. Id. clearly may apply within the site boundary. H/ H/ Other portions of the legislatiire history relied on by j AMC do not demonstrate a clear congressional intent to j prohibit EPA from regulating "on-site." For dxample, the j quoted remarks of Senator Domenici (AMC Br. at 20) simply emphasize the need to ensure a coherent, " unified" regulatory } regime and to avoid "potentially conflicting regulatory (Footnote continued on r. ext page) l

... 9 The Garn amendment was adopted and passed by the I E2nate on the same day. 124 CONG. REC. 36699 (1978). The j llowing day, Rep. Dingell put the Senate version of H.R. -'650 before the House, id. 38226 (1978), which approved the ,t 4 ootnote 39 continued from previous page) l .:tivities" by EPA and URC. The Senator made no, mention of a J ..ite boundary" limitation on EPA's authority; on the contrary, r j ]! made clear that a " unified" regulatory scheme would be

hieved if EPA set " generally applicable environmental i

.andards" and NRC set the site-specific, detailed requirements. .4 CONG. REC. 29776-7 (1978). g I AMC also cites a discussion among several Senators q .t:.d committee staff during a Senate Committee markup of S. I a l '284 (AMC Br. at 19-20 and n.32). This collocuy arguably in- .dicates that some Senators may have understood pre-existing i '.iw to limit EPA's authority to off-site standards, but it does } not indicate that those Senators or the Senate as a whole ( I Latended UNIRCA to continue that arrangement. .l i h, AMC relies an letters from NRC staff to Senate, ~ staff (AMC Br. at 20) which supposedly document an'-agreement j.. i.* between EPA and NRC to limit EPA's standards "off-tite."- But that is not what the correspondence says; rather, it states l that EPA would establish generally applicable standarde_to 7 protect the environment, "c nsidering radiological'and' hon- } _ radiological aspects outside the boundaries of tailingsi'l .y Piles."; (empnasis added). In any event, the issue is not [ wnat arrangement EPA and NRC might have worked out before the 3 passage of UdIRCA. The issue is what arrangement UMIRCA itself provides. And as to that issue, the statute's plain language, coupled with the relevant contemporaneous statements ~ of Congress' intent, demonstrate that Congress did not legislate 1 a " site-boundary" limitation on EPA's standard setting-authority. Finally, AMC c'ites a lette'r written by Congressman Udall to the NRC in 1984 (AMC Br. at 21 n. 33.). This letter does not clearly state the propositions urged'by AMC, that EPA's general standards can have no effect within the tailings site boundary. In any event, the letter of one Congressman Written in 1984 provides "a hazardous basis for inferring the int ent" of a prior Congress. United States v. Price, 361 U.S. 304, 313 (1960). I 5 ? k 3' D

>.. i Senate bill (with amendments not relevant here). Id. 38230. l 4 i See also id. 37542, 37545. The final bill was signed into [ law on November 8, 1978. L Thus, the legislative history clearly supports EPA's construction of the Act, if any aids to interpretation are necessary. Both Houses of Congress accepted a final I bill that eliminated the very proscription against "on-site" regulation which AMC claims to find in the law.<40/ Both houses of Congress specifically men #'icn on-site control t ~ measures, including a radon emission (flux) standard, as among the tools at EPA's disposal. As ultimately enacted, the law delineates a sensible division of responsibility between EPA and NRC that is based on their. respective functions (general standard setting vs. site-specific licensing and implementation), while recogniz%ng that EPA's regulations mayapplyon-siteifnecessarytoachie'vetheAct'sgoal[sof 1 a protecting against the potentially serious.and long-term _,' nature of the hazards involved. g," III. THE REGULATIONS DO NOT CONSTITUTE IMPERMISSIBLE MANAGEMENT, DESIGN AND ENGINEERING REQUIREMENTS As discussed in the preceding Section, Congress clearly intended EPA to issue " standards of general application," l 40/ Indeed, as finally enacted, the legislation does not even limit EPA's authority'to protection of the general l environment "outside the boundaries," as the Udall Committee l bill had provided; it broadly directs EPA to protect against the hazards associated with mill tailings. t ~ l 1 i }

a n .e a ' 4 l i l leaving to NRC the task of determining the specific design l 1 y a.d engineering requirements necessary to attain those o standards at each site. A!!C asserts that regulations ll retaining to radon emissions and groundwater protection k j Mstitute impermissible design and engineering requirements. } d is wrong. I l J I The Radon Flux Standard l s l j The regulation requires that tailings piles be j g ? sposed of so as to provide reasonable assurance that the., p (f cserage radon emissions from the, pile will not exceed 20 l1 2 picoeuries per square meter per second ("20 pCi/m s".). As 3 N'.C nust acknowledge, the standard is "a numerical limit" j 'e to determine l (31C Br. at 21), and the NRC is clearly lef t i the spec'ific design and engineering m,easures that will be l; required to achieve this standard at each site. I j MIC therefore attempts to sidestep the language' of 3 Q. the regulation by arguing that it is "a ' surrogate' to,rekuire } =... ~e_ h thick earthen covers over tailings piles. MICf Bf. at v ?e j . 21. According to AliC, the decision to use earthen covers or some other means of control is the type of " engineering" decision that NRC, not EPA, must make; therefore, " EPA' s radon standard was adopted as a ' surrogate' to do indirectly what Congress has prohibited the agency from doing directly." Id. at 22. A!!C's argument rests on a misleading and incomplete i picture of the purpose and effect of the regulation. EPA's o L p1

.... I regulation specifies the standard that a selected method of } ( disposal must achieve; it permits use of any method that 8 will provide reasonable assurance of attaining that standard. D I EPA believes that earthen covers are most likely to be used, ? ,I because they accomplish several goals 41/ of the regulation i simultaneously and comparatively cheaply. See 48 Fed. Reg. j t 45937 (col. 2) [J.A. ]; 1 FEIS 8-17 [J.A. ]; 1 FEIS 10-1 [J.A. ]. Ther.efore, EPA's technical ( s analysis generally characterized hos-cover: technology might be used to attain the standard. But far from precluding other methods, EPA recognized Ehat other methods might well - ~. be used. 42/ AMC is correct that EPA rejected the alternative of establishing an ambient radon concentration standard (i.e., a limit on the amount of rgdon in relation to the.- thesiteboundary)infavorofthb20 volume of air at y t picoeurie radon flux standard. The reasons for this:-desisi'o, n 4 are discussed infra at 55-58, in response to AMC's challe'nge j 41/ Those goals are; (1) to discourage future misuse of tailings; (2) to protect people from radon emissions from tailigs piles; (3) to prevent the surface spread of tailings; and (4) to protect groundwater. 1 FEIS 8-1 [J.A. ]; 48 Fed. Reg. 45930 (col. 2) [J.A. ]. 42/ For example, EPA recognized.that " methods to inhibit ~- the release of radon range from applying a simple barrier (such as an earthen cover) to such ambitious treatments as embedding tailings in cement or processing them to remove radium." 48 Fed. Reg. 45930 [J.A. ]. ?

/ .... cf a the merits of those judgments, and all of the agency's easons properly relate to the goals of the Act. The point flere,however,isthatnoneofthosereasonsconvertsthe 2d, dadon flux standard into something it is not -- a detailed, ssn is.te-specific design or engineering requirement. 43/ The 1 :.:gulation requires reasonable assurance that the standard '5 11 be achieved; how to accomplish that goal will vary from l' - } r;te to site, and will be determined by the NRC/ in accordance e, rich the statutory scheme. 44/ I. ~ it is true that EPA rejected an ambient I in/ For example, radon concentration standard in part because it believed that such a regulatory approach would not adequately-protect in contrast, che public from mill tailings hazards over time;end because it a radon flux standard would better serve that uauld necessitate controlling or reducing the emissions ,. t themselves; it does not simply modify the, behavior of the public by, e.g., restricting access to or use of the immediate area around the piles.. It is absur'd for AliC to suggest Shat [ this basic judgment is reserved to the NRC under che," site ' specific design and engineering" rubric. As a prac.tical q natter, any generic policy choice or level of control promulgat,ed the options available for compliance.. It by EPA may limit is within EPA's authority to determine that a particulaf'. regulatory approach is preferable to some other approacy. c. j because, inter alia, the method of compliance is likely7to j further other legitimate statutory goals; the exact design and engineering aspects of the compliance method (e.g., 3 1 whether to use an earthen cover and, if so, i t.4 thickness, t moisture content and contour) are left to NRC's determination. ii/ Similarly, the requirement of reasonable assurance that the radon' limit be met for 1,000 years (or, in the excep-tional case, for 200 years) is not a site-specific prescription exceeding EPA's authority. To specify for how long protection should be assured is not to dictate the means of achieving longevity of control. It, too, is a generic requirement applicable to all disposal sites and is related to the long-term risks that Congress intended to reduce. The NRC retains full responsibility to determine how uastes must be disposed of, e.g., by burying, covering or treating them, to assure long-tern protection. t .M L_.

\\ ... 0 " i B. The Groundwater Recuirements j i The regulations establish a " primary standard" that [ prohibits migration of contaminants to groundwater beneath all i new tailings piles and lateral extensions of existing piles. 40 C.F.R. S 192.32(a)(1) accomplishes this by incorporating g i by reference, in relevant part, 40 C.F.R. S 264.221,- which are I the regulations EPA has promulgated under Subtitle C of the l t Solid Waste Disposal Act, as amended, 42 U.S.C S.S 6901 et sea. j ("SWDA"). Because this standard caq.usually be achieved only l 5=

• )

~ by installing a liner, 48 Fed. Reg. 45941 (col. 1) [J.A. ], j g the AMC contends that this requirement constitutes an imperm.issible r " detailed engineering requirement _. AMC Br. at 24. But j again, AMC is wrong. t The nonmigration requirement is authorized, if not required, by the statute because UMTRCA directs that standards for uranimum mill tail $1ngs must provide, " protection of hbman health and environment consistent with the standards required c. s t under Subtitle C of [SWDA] 42U.S.C.S2022(,bpg2). j y, See infra at 81. The regulation is not a specific de. sign or i engineering requirement. It specifies the goals that must be j achieved (e.g., the prevention of migration of wastes out of-the impoundment, 40 C.F.R. S 264.221 (a)). Although this goal generally can only be achieved by installation of a liner, any method that achieves the obj ective may be used. See 40 C.F.R. 5 264.221(b); 264.222. AInd even as to liners, the regulation does not specify the type or characteristics of a liner that must be used; it' manifestly leaves to NRC and the 1 fr 6

,.. l 4 eparator of each site the determination of how to design for 1 c:.ase goals in terms of the composition of the liner, its th.ekness and other factors based on the characteristics of JJ ea h site. See also 47 Fed. Reg. 32274, 32517 (July 26, ' 12) (col.1) and 32319 (col.1). I i 3 IV. THE RADON FLUX STANDARD IS REASONABLE ? AND ADEOUATELY EXPLAINED i -{ Industry petitioners argue that the standards are P _,c a product of reasoned decisionna' Ring"; are not supported therecord;arebasedonimpermissibl'epolicyassumption$ b ] p~ } c.-cher than hard evidence; and impose unreasonable costs in ' -:1ation to the benefits of the standards. Environa' ental ~ ..'titioners, on the other hand, contend th'at the standards are not stringent enough, and that UMTRCA requires EPA to e:tablish " state-of-the-art" requirements that eliminate"all risks associated with active mill tailings. Petitioners' conflicting views as to what OMTPyCA '.~,'5 requires points up the fact that it is EPA that ultimately has l 3 -j the responsibility -- and the discretion -- to weigh competing f ? l,7 factors under the statute. The record in this case demonstrates e that the Administrator has exercised that authority in a reasonable manner, and has adequately articulated his rationale. Petitioners' challenges rest, in large measure,, on mischarac-teri:ations of what the Administrator did and the clearly stated reasons for his decisions. bi

A ;- ,~,-

te 4

8 ( 1 E E \\...../ POLICY ISSUE SE'Y-85-212 June 12,1985 C For: The Connission From: William J. Dircks Executive Director for Operations

Subject:

ACTIONS TAKEN AS A RESULT OF THE PROMULGATION OF ENVIRONMENTAL PROTECTION AGENCY STANDARDS FOR URANIUM MILL TAILINGS (40 CFR 192)

Background:

On October 7, 1983, the Environmental Protection Agency (EPA) published generally applicable environmental standards (40 CFR 192 Subparts D and E) for the management.of uranium and thorium byproduct material. These standards were developed by the EPA to satisfy the provisions of Section 275 of the Atomic Energy Act (AEA), as added by Section 206 of the Uranium Mill Tailings Radiation Control Act (UMTRCA), which required EPA to establish standards that provide for the protection of human health and the environment consistent with standards promulgated pursuant to the Solid Waste Disposal Act (SWDA). The EPA standards became effective on December 6, 1983. Under UMTRCA and the NRC authorization act for FY 1982 and 1983, the Comission is required to conform its regulations for uranium mill tailings to the EPA standards. The AEA (984a(3)) also requires NRC to establish general requirements, which are, to the maximum extent practicable, at least comparable to requirements for similar hazardous waste under the SWDA, as amended by the Resource Conservation and Recovery Act of 1976(RCRA). Under the effective EPA standards, ground-water monitoring systems capable of detecting indications of hazardous constituents were to be in place at licensed facilities by October 1, 1984. Contacts: Dennis M. Sollenberger, NMSS 427-4789 George C. Pangburn, RIV/URF0 FTS 776-2805

i Discussion: Several actions have been or are being taken to fulfill the above Commission responsibilities. These actions include: 1. Proposal of a two-step rulemaking to conform NRC regulations to the final EPA standards and establish RCRA-comparable requirements, which the Commission approved on November 2,1984. The proposed rule and ANPRM were published on November 26,1984(Proposed Rule, 49 FR 46418; ANPRM, 49 FR 46425). The deadline for the comment period for the proposed rule was January 10, 1985, but it was extended to February 10, 1985. The deadline for the comment period for the ANPRM was originally January 25, 1985, but it was extended to March 1, 1985. The NRC staff analysis of the comments on the proposed rule has bein completed and a final rule prepared. The recommended final rule for the first step was sent to the Commission in May 1985. The comments on the ANPRM are currently being analyzed and a plan for the preparation of a proposed rule for the second step is being developed. The basic options under consideration for the completion of the second step of the original two-step rulemaking include: A. Fulfill the conformance mandate by a simple reference in Appendix A of 10 CFR Part 40 to the ground-water standards in 40 CFR Part 192. B. Fulfill the conformance mandate by inserting in 10 CFR Part 40 the clearly non-discretionary ground-water provisions of the EPA standard in 40 CFR Part 192 and referenced standards. C. Proceeding with development of a new part as originally planned. This approach would involve the development of supporting environmental impacts analyses and would require several years to complete. l l l i

o 2. Negotiations with EPA on a Memorandum of Understanding (MOU). On January 31, 1985, NRC and EPA staff met to explore those areas where further negotiation on the MOU would be worthwhile given the Comission's position on its authority and responsibility published in the November 26, 1984 rulemaking notices and EPA's comments on the tailings rulemakings. As a result of that meeting and subsequent meetings, EPA and NRC staff have agreed to continue efforts to develop a mutually agreeable generic methodology for evaluating alternate concentration limits (ACL's) before pursuing further development of a comprehensive MOU. By early summer NRC and EPA staff plan to exchange and review the ACL guidance documents each is developing to determine if a cooperative plan for completing a generic methodology for reviewing ACL applications is desirable., 3. Preparation of opinions on the jurisdictional issues raised by the EPA standards. The jurisdictional issues were addressed in the Comission's authority and responsibility statement noted in item 2 and the recent Office of General Counsel paper (SECY-85-125). 4. Preparation of interim guidance on licensing implementation of the EPA standards. Three interim guidance documents prepared by NMSS are discussed as part of the status report in the enclosure. 5. Licensing actions to implement the imposed EPA standards. The enclosure presents a status report on the actions taken to date and planned future actions to implement the imposed EPA standards through licensing actions by the Uranium Recovery Field Office, Region IV at currently licensed uranium mills. Mr. Dale Smith, Director of the Uranium Recovery Field Office, has prepared a slide presentation on implementation of EPA ground-water protection requirements at uranium i recovery facilities. This presentation is a complement to i l

. the enclosed status report and may be of interest to Comission staff or individual Comissioners. SECY is currently arranging a schedule for this presentation for June 17, 1985. S u\\ William J. Dircks Executive Director for Operations

Enclosure:

Status Report on Implementation of 40 CFR 192. e

ENCLOSURE STATUS REPORT ON IMPLEMENTATION OF 40 CFR 192 INTRODUCTION The purpose of this paper is to provide the Commission with a progress report on implementation of 40 CFR 192 as it applies to NRC-licensed and Agreement State-licensed uranium mills. To achieve this purpose, the paper: o Reviews actions to date by NRC on implementation; o Provides a summary review of the status of NRC-licensed and Agreement State-licensed facilities with emphasis on their status with respect to the ground-water protection provisions; o Summarizes near-term (CY 85) activities planned for the Uranium Recovery Field Office, Region IV (URF0). NRC ACTIONS TO DATE For several years prior to promulgation of the EPA standard, NRC has been implementing programs to protect ground-water quality at NRC-licensed facilities. All new impoundments licensed by NRC since 1977 have been lined, either with synthetic or natural materials. All NRC facilities have in place ground-water monitoring systems designed to locate and quantify seepage from the 1:p:und::nts. Approximately three-fourths of these facilities have remedial or mitigative action programs in place to intercept and return contaminated ground water to the impoundment. In addition, NRC, through the Uranium Recovery Field Office, has been emphasizing the importance of implementing systems to evaporate impoundment water and thereby reduce the driving force behind seepage. Along this line, four NRC-licensed facilities have in place some form of enhanced water evaporation system. All of the above actions have been taken under the authority of 10 CFR 40. Subsequent to the effective date of 40 CFR 192 (December 6,1983), NMSS issued guidance on implementation of the EPA standards to the Region IV Administrator by memorandum dated January 9, 1984. URF0 issued a letter to all NRC licensed uranium milling operations on February 2,1984. This letter provided guidance to the licensees on how the standard would be implemented. The letter also served as a formal reminder that the standard was in effect and that licensees should review their operations and propose to NRC any modifications necessary to assure compliance. Finally, the letter stated that detection monitoring programs as defined in 40 CFR 264.98 were required to be established by September 30, 1984, and that further guidance on these programs would be forthcoming.

~ i 4 . By memorandum dated June 7, 1984, NMSS issued additional guidance on acceptance criteria for detection monitoring programs required by 40 CFR 192.32(a)(2). URF0 sent a subsequent letter to licensees on July 10, 1984 which addressed detection monitoring programs. In this letter URF0 set forth the criteria for an acceptable detection monitoring program and provided.to each licensee the results of a preliminary review of its existing ground-water monitoring program relative to these criteria. The licensees were advised to respond to the criteria with a formal submittal outlining their proposed detection monitoring system by September 30, 1984. All licensees have transmitted responses to the URF0 letter. In addition 'to these formal letters, URF0 held conferences in Denver with most licensees to provide prelicensing guidance on the detection monitoring . requirements as well as other portions of the standard. URF0 also prepared a preliminary report reviewing the status of each licensed mill relative to the detection monitoring program requirements of 40 CFR 192. At the present time, most licensees are conducting detection monitoring programs and URF0 has completed its review of the detection monitoring program submittals from the licensees. This was a precursor to issuing a license amendment to each facility specifying the precise detection monitoring requirements which are binding for each site. Based upon its review of licensee submittals, URF0 has developed a staff technical position on generic detection monitoring program aspects. In meetings on April 10 and 11, 1985, URF0 presented this technical position to industry and state representatives along with preliminary 4 site-specific conditions to be added to each license. Meetings with individual mill licensees were held by appointment following discussion of the generic position paper. In some cases, there were no further questions and no meeting - was requested. URF0 has issued site-specific license amendments for detection monitoring pions for all affected mills. Subsequent to the issuance of the site-specific license amendments, a number of licensees (8 as of May 15) requested a hearing on their amendments. The two l reasons cited in all requests were that (1) the amendment is inconsistent with the Commission's regulations in 10 CFR Part 40, Appendix A, since NRC has not amended its regulations, and (2) the EPA standards are null and void because they are beyond the jurisdiction of EPA. The uranium mining industry has filed a lawsuit to have the EPA standards declared null and void. The hearing requests are viewed as an adjunct to these legal proceedings. They have been referred to appropriate staff within the Commission. Beyond URF0's activities in non-Agreement States, considerable work has been going on in those Agreement States which have licensed uranium mills. The Office of State Programs has provided to the affected Agreement States copies i of the NMSS and URF0 correspondence referenced above to serve as guidance for the Agreement States in regulating the mills in these states. Staff and management from URF0 have met with regulatory authorities in all Agreement States with uranium mills to share with them NRC experiences in evaluation of detection monitoring systems and to discuss with them the guidance for implementation. In addition, URF0 has provided technical assistance to several Agreement States in licensing actions using relevant portions of 40 CFR 192 as i 1 4 .,,..----_,,__-.--._.-m._ ..,,--.,---y ,,--.,.-.-.m_-,, -r, --y--_,.,

3-guidance. Examples include: (1) License termination of several small orocessing sites in New Mexico and Texas; and (2) Review of preliminary reclamation plans for several mills in Colorado, New Mexico, and Texas. On April 1,1985, NMSS provided to URF0 additional clarification regarding the applicability of the EPA standards. URF0 has indicated that sufficient guidance exists to implement the EPA standards while NRC progresses with its rulemaking. In addition, NRC staff have met with EPA technical staff on several occasions to discuss EPA's methodology for review of alternate concentration limits (ACL) as provided for in the RCRA regulations which may be used for review of ACLs as providedforin40CFR192.32(a)(2). The staffs have exchanged information and discussed general approaches to ACL determinations. 2 STATUS OF LICENSED FACILITIES I The new standard applies to both NRC-licensed and Agreement State-licensed uranium mills. The staff has examined the status of both categories of mills relative to compliance with major provisions of the standard and has prepared the tables on the following pages. Table 1 gives a breakdown by state of the operational status of all licensed uranium mills. Of interest in this table is the fact that out of the 27 mills that have operated and generated mill tailings, only five are currently i operating and three of those are planning to cease operating in the near i future. Table 2 depicts the breakdown of mills relative to the liner requirement, or primary standard, of 40 CFR 264.221(a). Six mills were excluded from this table either because they are planning or conducting decommissioning and because, in one case, the operational mode does not employ an impoundment of any kind. Of the remaining 21 mills, 11 meet the primary standard as they are currently licensed. Five others have licensed tailings disposal capacity that would be subject to the liner requirement, and another five mills need additional capacity to operate and this additional capacity would also be subject to the liner requirement. Table 3 presents the results of a preliminary review of licensed mills relative to the major components of a qualified detection monitoring program. The i Edgemont mill is being handled as a special case since the dry tailings are being moved and therefore it is not included in the results of Tables 3 and 4. It is significant to note that 13 NRC-licensed and 13 Agreement State mills appear to be'in compliance with the criteria for monitoring indicator i parameters. With respect to monitoring from a well at an acceptable point of compliance, 13 NRC-licensed mills and nine Agreement State mills meet the criterion. With respect to having a well properly located to monitor background conditions, 13 NRC-licensed mills and six Agreement State mills met - - - - - -, ~

this criterion with their existing ground-water monitoring programs. Finally, 13 NRC-licensed and 13 Agreement State mills met the criterion for semi-annual monitoring frequency. Table 4 summarizes ground-water conditions at existing mills based on the results of monitoring programs that are in place and operating.. Five mills have no indications of ground-water contamination, while 21 do have such indications. Of these 21, 14 have identified one or more hazardous constituents in sampling and 16 nave mitigative action programs in place. The data presented in the tables refer to the operational portions of the EPA standard. The EPA standard also contains requirements for the post-closure period. 2With respect to the long-tern stability and radon emanation limit of 20 pCi/m /sec, all but six mills have preliminary reclamation plans which would meet this standard. Five of these six mills are located in New Mexico which adopted less stringent standards than those promulgated by NRC in 1980. The other mill is located in Colorado. Finally, according to the EPA standard, the longevity requirements do not apply to any portion of a site which contains radium-226 concentrations, averaged over 100 square meters, less than (1) 5 picocuries per gram over the first 15 centimeters of depth and (2) 15 picocuries per gram over succeeding 15 centimeter layers. All mills but six have preliminary reclamation plans that meet the requirement. All uranium mills are required by the EPA standard to conform to the earlier 40 CFR 190. " Environmental Radiation Protection Standards for Nuclear Power Operations," which limits the off-site dose to any individual to 25 mrem per year from all sources of radiation, other than radon, that result from plant operations. At present, all but two Agreement State-licensed mills meet this standard.. These licensees have developed plans to bring their facilities into compliance with the 40 CFR 190 standard. The standard also requires that mills discharging to surface waters must meet the requirements of 40 CFR 440. There are only two Agreement State-licensed mills that discharge wastes to surface waters, and they both meet these requirements. i l l l t _ - ~ _. _. _ _. _ _ - - _ _

5 TABLE 1 CURRENT STATUS OF LICENSED URANIUM MILLS C0 NM SD TX UT WA WY TOTAL OPERATING MILLS, N0 SHUTDOWN PLANS 2 2 OPERATING MILLS, SHUTDOWN PLANNED 1 1 2 4 MILLS SHUTDOWN, DEFINITE RESTART PLANS 1 1 2 MILLS SHUTDOWN, RESTART UNCERTAIN 1 5 3 2 4 15 MILLS SHUTDOWN, DECOMMISSIONING PLANNED OR UNDERWAY 1 2 1 4 TOTAL 2 5 1 3 4 3 9 27 l j

• Agreement States l

t v-

r

• TABLE 2 STATUS OF LICENSED URANIUM MILLS EPA REQUIREMENT: SURFACE IMPOUNDMENT (EXCEPT FOR EXISTING PORTION) MUST HAVE A LINER THAT IS DESIGNED, CONSTRUCTED, AND INSTALLED TO PREVENT ANY MIGRATION OF WASTES OUT OF THE IMP 0UNDMENT TO THE ADJACENT SUBSURFACE S0IL OR GROUND WATER OR SURFACE WATER AT ANY TIME DURING THE ACTIVE LIFE (INCLUDING THE CLOSURE PERIOD) 0F THE IMPOUNDMENT. [40CFR192.32(a),40CFR264.221(a)]

OPERATING SHUT DOWN NRC AS NRC AS NUMBER OF MILLS WHOSE PRESENTLY LICENSED CAPACITY COMPLIES WITH REQUIREMENT 2 1 3 5 NUMBER OF MILLS THAT HAVE LICENSED CAPACITY SUBJECT TO REQUIREMENT 2 2 1 NUMBER OF MILLS THAT NEED ADDITIONAL CAPACITY TO OPERATE AND WOULD BE 1 2 2 SUBJECT TO REQUIREMENT m

r TABLE 3 STATUS OF LICENSED URANIUM MILLS EPA REQUIREMENT: DETECTION MONITORING PROGRAMS TO ESTABLISH THE STANDARDS REQUIRED UNDER SECTION 264.92 SHALL BE COMPLETED WITHIN ONE (1) YEAR OF PROMULGATION. [40 CFR 192.32(a)(2)(iii)]. OF 27 LICENSED MILLS THAT HAVE OPERATED, THE NUMBER THAT HAVE A MONITORING PROGRAM THAT APPEARS TO COMPLY WITH THE FOLLOWING CRITERIA ARE: OPERATING SHUT DOWN NRC AS NRC AS TOTAL MONITORING FOR INDICATOR PARAMETERS 4 1 9 12 26 HoniT0kliiG AT " COMPLIANCE POINT" 4 9 9 22 ESTABLISHING BACKGROUND LEVELS 4 9 6 19 SEMI-ANNUAL MONITORING FREQUENCY 4 1 9 12 26 (OTHER CRITERIA NOT EVALUATED)

• The tailings at the Edgemont mill are being moved; therefore, this site was excluded from the table.

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7 TABLE 4 STATUS OF LICENSED URANIUM MILLS BASED ON CURRENT MONITORING PROGRAMS, THE NUMBER OF MILLS WHERE: OPERATING SHUT DOWN NRC AS NRC AS TOTAL NO INDICATION OF GROUND-WATER CONTAMINATION EXISTS 1 2 2 5 INDICATION OF GROUND-WATER CONTAMINATION EXISTS 4 7 10 21 ONE OR MORE HAZARD 0US CONSTITUENTS HA'!E BEEN INDENTIFIED IN 4 7 3 14 GROUND WATER MITIGATIVE ACTION PROGRAMS ARE IN PLACE 4 6 6 16

• The tailings at the Edgemont mill are being moved; therefore, this site was excluded from the table,

l ' PROJECTED 1985 ACTIVITIES Detection Monitoring Programs For all but one mill, the determination of background levels and indicator parameter levels will not be completed until one year of data has been collected from approved wells. Because the need for compliance monitoring does not arise until indications of the presence of hazardous constituents are found under the detection monitoring program, it is possible that no more than one compliance monitoring program will be initiated in 1985. Mitigative Actions URF0 will continue its activities under 10 CFR 40 to control and/or restore ground-water quality at licensed facilities. These activities include routine review of monitoring data as well as implementation and performance assessment of mitigative action progre.ms. With respect to the latter item, URF0 will reciuire new or improved pumpback systems where appropriate to control seepage, and will also examine most facilities with respect to eliminating excess impoundment water by enhar.ced evaporation systems. It may take some time to develop and implement needed corrective action programs as defined in the standard. However, continuation and expansion of NRC's actions in ground-water quality mitigation and control will assure adequate protection of public health, safety, and the environment in the interim. Deletion of Hazardous Constituents The 375 item list of hazardous constituents referenced in 40 CFR 192 is contained in Appendix VIII to 40 CFR 261. Provisions for excluding a hazardous constituent from consideration are contained in 40 CFR 264.93(b). The staff considers that the great majority of the substances on this list are unlikely to be found at licensed uranium processing sites. To obtain broad, generic confirmation of this belief, staff are conducting, with analytical assistance l from Oak Ridge National Laboratory, sampling and analysis of impoundment water i at several mills. This sampling program and analysis are expected to be completed in 1985 and should provide a reasonable basis for identifying those Appendix VIII hazardous constituents likely to be found in mill tailings waste.

SUMMARY

NMSS and the Uranium Recovery Field Office are proceeding with implementation l of the provisions of 40 CFR 192. The requirements of the standard, both operational and post-closure, are being considered in the development and execution of licensing activities. Imple,wntation of all parts of the standard is expected to take some time, however, primarily because of the need for establishment of an adequate monitoring data base, i In the interim, the staff will continue to utilize the authority provided by 1 10 CFR 40 to control and mitigate adverse effects on ground-water quality at l

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• licensed uranium processing sites. The following sumary table depicts the major steps in implementation of the standard as they would affect a facility having no program previously in place. The actions taken in this regard will continue to assure protection of the environment and public health and safety.

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l - II - TABLE 5 IMPLEMENTATION STATUS OF MAJOR PROVISIONS OF 40 CFR 192 Significant Implementation Time for a Current Status Implementation New Facility or in the of NRC-Licensed Steps Required Absence of Existing Program Mills 1. Detection Monitoring 1.5 - 2.0 years Detection monitoring is in effect at all NRC-licensed sites. 2. Compliance Monitoring 0.75 - 1.0 years Earliest imple-Program mentation date; mid-1986. Monitor-ing of at least two hazardous con-stituents ongoing at all sites. 3. Corrective Action 0.75 - 1.0 years Earliest imple-mentation date; mid-1987. Mitigative action programs continuing or expanded in the interim. 3.0 - 4.0 years l l l i ,-.}}