ML20210T141

Discusses Recently Reviewed Portions of 970717 Draft Bill Developed by Majority Members of Senate Environment & Public Works Committee for Reauthorization of Comprehensive Environ Response,Compensation & Liability Act of 1980

ML20210T141
Person / Time
Issue date:	09/03/1997
From:	Shirley Ann Jackson, The Chairman NRC COMMISSION (OCM)
To:	Chafee J SENATE, ENVIRONMENT & PUBLIC WORKS
Shared Package
ML20210T147	List: ML20210T141 ML20210T155
References
NUDOCS 9709120288
Download: ML20210T141 (7)

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[aceh i UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20$5H001

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CHAmMAN l

The Honorable John H. Chafee, Chairman Committee on Environment and Public Works United States Senate Washington, D.C. 20510

Dear Mr. Chairman:

The United States Nuclear Regulatory Commission (NRC) has recently reviewed portions of a July 17,1997 draft bill developed by the Majority members of the Senate Environment and Public Works Committee for reauthorization of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). CERCLA reauthorization legislation is of great importance to the Commission because ei its potential applicability to cleanup of residual radioactivity resulting from the presenes at a facility of material that falls under the jurisdiction of the NRC. The draft bill would, for the first time, make statutory specific residual risk standards applicable to cleanup of radioactive material, and it would not provide any role for the NRC with respect to selection or application of such cleanup standards. Since the NRC has the primary expertise in the Govemment with respect to regulation of radioactive material used by commercial facilities, the Commission does not believe the lack of a role for the NRC to be practical or appropriate. We further note that some versions of CERCLA reauthorization legislation would require the Environmental Protection Agency (EPA) to consult with States, Indian Tribes, and local citizens groups. It would seem proper to include among those required to be consulted those Federal agencies that have an interest in the decisions being made.

More specifically, the Commission strongly opposes the bill's application to cleanup of radioactive material based on the following concems:

1. Lack of finality in cleanuo activities. Pursuant to its authority under the Atomic Energy Act of 1954 and the Energy Reorganization Act of 1974, the NRC has issued a final rule that addresses radiological criteria for license termination. (See 62 Fed.

Reg. 39058, July 21,1997) This rule provides a clear and consistent regulatory basis for determining the adequacy of remediation of residual radioactivity resulting from the possession of Atomic Energy Act material. It is, therefore, unnecessary and inappropriate to create an additional statutory standard for application to the cleanup of such material at sites regulated by the NRC or by States that have entered into an agreement with the NRC whereby the NRC has relinquished its authority over radioactive material to the State. Creating an additional cleanup standard may make it extremely difficult for the cleanup of a site containing residual radioactivity to reach finality. As a result, potential cleanup liability of parties who have been associated with an affected site may be viewed as being limitless in duration and amount.

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2. Neoative imoact on NRC's Aargement State oroaram. Section 274 of the Atomic Energy Act provides a program under which an interested State may enter into an agreement with the NRC (thereby becoming an " Agreement State') for the NRC to .

relinquish its authority over radioactive material within the State. NRC retains I continuing responsibility to review the State's reguiatory program to ensure, among other things, that the program is adequate to protect the public health and safety. If an Agreement State's ability to conduct CERCLA cleanups at sites containing radioactive material is made subject to a determination by EPA this has the potential for creating duplicative findings and significant " coordination" problems between NRC and EPA, and could raise questions regarding the continuing viability of the Agreement State program and the authority of the States that have entered into the program.

3. Inappropriate use of MCLs for cleanuo of radionuclides. The bill contemplates the use of Maximum Contaminant Levels (MCLs) established under the Safe Drinking Water Act as standards for cleanup of contaminated ground water. The Commission is opposed to the application of MCLs for cleanup of radionuclides at sites regulated by the NRC or an Agreement State, and considers the use of MCLs in such l circumstances to be inappropriate. MCLs do ret lead to a consistent radiological l

dose. Radiological dose is the appropriate measure for the cleanup of radiologically contaminated areas. The Commission has adopted, by rulemaking, an "all pathways' standard that it considers to be adequately protective of public health and safety and the environment. We would also note that the Senatemassed high level waste legislation, S.104, specifically adopted an all pathways approach without a separate groundwater standard. One way to address this issue in this CERCLA legislation would be to recognize, and give credit and finality to, the NRC's all pathways standard that is now reflected in NRC's new regulations on decontamination and decommissioning.

4. Overly restrictive standards. The draft bill would provide that a remedial action shall"be considered to protect human health if ... the remedial action ... (1) achieves a residual risk from exposure to nonthreshold carcinogenic hazardous substances ...

such that cumulative lifetime additional cancer from exposure to hazardous 4

substances ... from releases at the facility range from 10 to 104 for the affected population". The Commission believes that this criterion is overly restrictive with respect to radioactively contaminated releases, particularly as it is not stated to be in excess of existing background radiation. Thus, the standards for residual risk in the draft bill are unnecessary and inappropriate for application to the cleanup of Atomic Energy Act material at sites regulated by the NRC or Agreement States.

We have enclosed draft legislative language that would resolve issues raised by the bill that are of particular concern to the Commission. We have used the draft bill developed by the Majority members of the Committee to illustrate how the language could appropriately be inserted, but it could be included in any CERCLA reauthorization bill under corisideration.

The exact placement of the enclosed language would, of cou:se, differ depeno'ng on the format of the bill under consideration. NRC Staff comments addressed to particular language in the Majority draft bill that may create problems of legislative interpretation are also enclosed.

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3 In addition, we believe that it is important to make clear that the exceptions to the notification and liability provisions of CERCLA sections 102 and 107 that apply to Federally pt.7nitted releases of Atomic Energy Act material by a licensee also apply to a release of Atomic Energy Act material after a license has been terminated. Therefore, we have also enclosed legislative language that would amend the definition of ' Federally permitted release" in section 101(10)(K) of CERCLA. Adoption of this language would ensure that releases presenting the same risk receive the same treatment under the notification and licbility requirements of the Act.

We would, of course, be pleased to work with the Environment and Public Works Committee to ref,ne the appropriate placement of the draft legislative language that is enclosed, and to ensure that any necessary conforming changes are made to other provisions of the legislation.

Sincerely,

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Shirley Ann Jackson

Enclosures:

As stated cc: Senator Max Baucus

DRAFT LEGISLATION TO AMEND CERCLA $ 121 Section 121 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. 9621) is further amended by adding the following new paragraph at the end of subsection (a);*

'(4) SOURCE, BYPRODUCT, AND SPECIAL NUCLEAR MATERIAL.-A remedial action for source, byproduct, or special nuclear material (as defined by the Atomic Energy Act of 1954 (42 U.S.C. 9 2011 et seq.)) that falls under the jurisdiction of the Nuclear Regulatory Commission or a State under an Agreement' entered into i

i pursuant to section 274 of the Atomic Energy Act of 1954 shall be considered to be protective of human health and the environment if it complies with the regulations of -

E the Commission or State (whichever is applicable), unless the Chairman of the Nuclear Regulatory Commission or the Govemor of the State advises the President that the Commission or State has determined that application of the requirements of 4

this section would be in the best interest of protecting human health,- safety, and the environment. A remedial action that complies with the regulations of the Commission shall satisfy the requirements for remediation and controi for such material contained in this Act *

• Note that this placement of _the proposed amendment of section 121 is based on the July 1997 version of the draft bill developed by the Majority members of the Senate Environment and Public Works Committee. The exact placement of the amendment in the legislation will R

' depend on the version of the bill under consideration. Conforming changes may also be needed in other provisions of the bill.

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DRAFT LEGISLATION TO AMEND CERCLA 9101(10)(K)

' Section 101(10) of the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. $9601(10)) is amended by inserting the following before the period at I the end of paragraph (K):

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" or any release of such material in accordance with regulations of the Nuclear Regulatory Commission following termination of a license issued by the Nuclear Regulatory Commission pursuant to the Atomic Energy Act of 1954 (42 U.S.C. 6 2011 1

et seq.) or by a State acting under an Agreement entered into pursuant to section 274 of the Atomic Energy Act of 1954."

Note that the section of the bill that contains this amendment should also contain a separate l

provision that provides the following:

"The amendment of section 101(10)(K) contained in this section shall be effective only with respect to licenses terminated on or after the effective date of this Act."

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NRC STAFF COMMENTS ON SENATE SUPERFUND BILL Pace 6. line 15: oaae 7. line 6: Both citations refer to remedial action requirements imposed by State law brought to the attention of the PRESIDENT / ADMINISTRATOR "in a timely manner", but there is no indication of what the quoted phrase means. Without some limitation as to time, there may be no finality in Federal determinations regarding compliance, particularly with respect to requirements of a 1,:w

• promulgated by the State after the date of l 1 enactment of the "Superfund Cleanup Acceleration Act of 1997." I l I L

- Pace 11; lines 6-13: If there is no Federal or State standard for a " specific hazardous substance', there is a reference back to the standard that is determined to be protective of human health and the environment " as stated in subsection (a)(1)(B)', it is not clear whether the term " specific hazardous substance" is used in a generic sense (e.g.,

" radioactive material") or a more particular sense (e.g., thorium).

Paae 15. lines 13-14: The open gap _nere makes it impossible to know what might be encompassed in the term " Federal and State land use designations" (on lines 1 "J,

' Pace 18. lines 14-15: The phrase " suitable for beneficial use" is not given any definition. In

._some parts of the provisions specific to Groundwater, the terminology used is ' beneficial use

. as drinking water" (see page 20, lines 18-19), but other beneficial uses are not identified. Is

. the intent to limit the provisions on Groundwater to drinking water?

2 Paae 25. lines 17 21: The meaning of this clause is unclear. Are two attemative criteria

. intended to be included here: (1) contamination resulting from human activity unrelated to a specific facility or release, or (2) restoration of drinking water quality with respect to the ground water is technically impracticable, or are the two criteria additive?  !

Paos 35. lines 4-9: Why is the risk assessment limited to institutional controls in place at the l

1 time at which the risk assessment is conducted? Is the intent here to force the President / Administrator to ignore institutional controls that are the subject of a firm commitment for implementation after cleanup?

Paae 54. line 21 - Paae 59. line 15: There is no indication of what is the conrequence if -

there is rio express approval or disapproval of the proposed remedial action plan. There is a reference on Page 57, lines 5-6, to a remedial action plan that is " considered to be approved under paragraph (5)", but there is no clear statement in paragraph (5) that under certain conditions the plan would be considered approved,