ML20214N104
| ML20214N104 | |
| Person / Time | |
|---|---|
| Issue date: | 05/31/1985 |
| From: | NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| To: | |
| Shared Package | |
| ML20210Q655 | List: |
| References | |
| FRN-49FR46425, FRN-51FR24697, RULE-PR-40 AB56-1-30, NUDOCS 8609160101 | |
| Download: ML20214N104 (150) | |
Text
{{#Wiki_filter:. URANIUM MILL TAILINGS REGULATIONS: GROUND-WATER PROTECTION AND OTHER ISSUES STAFF ANALYSIS OF PUBLIC COMMEtlTS ON ADVANCE NOTICE OF PROPOSED RULENAKING FOR 10 CFR 40 Division of Waste Management Office of Nuclear Material Safety and Safeguards
.May, 1985 91 101 860904 40 51FR24697 PDR
TABLE OF CONTENTS Page 1.0 Introduction , Purpose and Summa ry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2.0 List of Commenters............................................... 6 3.0 Comments on NRC's Tentative Approach............................. 7 4.0 Comments on Listed Issues....................................... 13
- a. Issue 1.................................................. 13
- b. Issue 2.................................................... 14 3....................................................
- c. Issue d.
e. Issue Issue 4....................................................1719 . 5.................................................. 22
- f. Issue 6....................................................
7...................................................23
- g. Issue 25 i h. Issue 8.................................................... . 27
- 1. Issue 9.................................................... 28 j.
I s s u e 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 5.0 Discussion...................................................... 31
- a. Issues resol ved in the fi rst-step rulemaking. . . . . . . . . . . . . . . . 31
- b. Carryover - from fi rst-step rul emaking. . . . . . . . . . . . . . . . . . . . . . . . 32
- c. Issues in response to ANPRM................................. 33
- d. Issue impact on three al ternatives. . . . . . . . . . . . . . . . . . . . . . . . . . 35.
Appendix A - ANPRM Appendix 8 - Comments r
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3 1.0 INTROCUCTION, PURPOSE, SUMPARY The Nuclear Reculatory Commission (NRC) issued an advance notice of proposed rulemaking (ANPRM) for uranium mill tailings on Monday, November 26, 1984 (49 FR 46425). See Appendix A. The ANPRM was a companion to a proposed rule notice issued the same day (49 FR 46418) stating that NRC is considering further amendments to its uranium mill tailings regulations. The comment I 1 period on the ANPRM originally expired on January 25, 1985 but was extended i until March 1, 1985 (50 FR 2293, January 16,1985). 1 Sixteen commenters responded (see Section 2.0) and copies of the responses are included in Appendix B. Four environmental groups, six industrihl representatives, four states, and two Federal agencies responsed. The future action described in the ANPRM is primarily intended to incorporate ground-water protection provisions and other requirements established by the U.S. Environmental Protection Agency (EPA) for similar hazardous wastes into NRC regulations. The Uranium Mill Tailings Radiation Control Act (UMTRCA)
, requires that NRC establish requirements which are comparable to EPA's requirements for similar materials developed under the Solid Waste Disposal Act, as amenced (SWDA). (See Section 84a(3) of the Atomic Energy Act.) The rulemaking would also incorporate the specific ground-water protection provisions imposed by the EPA standards in 4C CFR 192, Subparts D and E. EPA published these stancards October 7,1983 (40 FR 45926). They are based on
4 EPA's rules for ground-water protection which implement the Resource Conservation and Recovery Act (RCRA) amendments to the SWDA. The purpose of this analysis is to examine the comments only at a level of detail sufficient to provide input on defining the scope of rulemaking that should be undertaken. This analysis is not the only input for this decision but it is a major one. Staff has three alternatives under consideration: (1) fulfill the confomance* mandate by a simple reference to the ground-water standards in 40 CFR 192 similar to current references to 40 CFR 190; (2) fulfill the mandate by inserting the clearly nondiscretionary ground-water provisions imposed by EPA in 40 CFR 192 and referenced standards, or (2) proceed with a comprehensive rulemaking that includes extensive discretionary action by NRC. If the decision is to proceed with a comprehensive rulemaking, the coments will be factored into the development of new and revised rules on a more detailed basis. Coments from the proposed rule actian that suggested specific additional rule changes not related to conforming to the EPA standa rds would also be factored into developmut of further proposed rules. The number and basis for suggested changes is germane to this analysis and are addressed in Section 5.0. The ANPRM described NRC's tentative approach for the ground-water protection additions. Coments generally addressed aspects of this approach. Coments also addressed the Comission Authority and Responsibility statement in the notice.
5 Ten specific issues were listed in the ANPRfi for comment and corranenters addressed eacn of the ten issues. Corrmenters also repeated or referenced issues raised on the proposed rule. l
6 . 2.0 LIST OF COMMENTERS Docket No. Commenter Abbreviation *
- 1. Getty Mining Ccmpany Getty
- 2. Ecology / Alert None
- 3. Sierra Club None
- 4. U.S. Department of the Interior. ~ DOI
- 5. Texas Department of Health TX
- 6. Washington Department of Social and Health WA Services
- 7. Dawn Mining Company Dawn
- 8. Environmental Defense Fund EDF
- 9. Kerr-McGee Corporation, Kerr-McGee Chemical Kerr-McGee Corporation, and Quivira Mining Company
- 10. Environmental Policy Institute EPI
- 11. New Mexico Environmental Improvement Division NM
- 12. Homestake Mining Company HMC
- 13. American Mining Congress AMC
- 14. Colorado Department of Health CO
- 15. U.S. Environmental Protection Agency EPA
- 16. Tennessee Valley Authority TVA Copies of the comments received are reproduced in~ docket number order in Appendix B. The commenters fall into the following categories:
Environmental Industrial Ecology / Alert Getty Sierra Club Dawn EDF Kerr-McGee EPI HMC AMC Total 4 TVA Total 6 State Federal Acencies TX DCI < WA EPA NM C0 Total 2 , Total 4 s I
, _ - m _ _ . --, .
O 9 7 3.0 COMMENTS ON NRC'S TENTATIVE APPROACH Elements of NRC's approach described in the ANPRM were: Consolidate all SWDA related requirements. Organize in terms of design, operations, closure, and post-closure. Eliminate references to EPA standards. Include all 40 CFR provisions already imposed by EPA (40 CFR 264.92-94, 264.100, 264.111, and 264.221). Consider including all of Subpart F (40 CFR 264.90-100). Consider all provisions EPA indicated that NRC should address or consider in the preamble to 40 CFR'192. Eliminate procedural provisions. Some of these points were developed more specifically in the list of specific issues. Comments addressing the general or overall approach are summarized in this section. Comments Getty urged NRC to substantially revise the SWDA requirements to reflect the differences between tailings and hazardous wastes and the geology of tailings sites. (Specific revisions suggested are addressed in Section 4.0.) Dawn reflected similar views and emphasized that tailings more closely respond to mining wastes and that all other parts of the mining industry have been exempted from the hazardous waste rules in 40 CFR Part 264. Dawn urged NRC to develop generic alternative requirements rather than shifting the burden to licensees. According to Dawn, the alternatives should follow the specific-
8 m needs of-the mining industry consistent with 1984 Congressional direction given EPA for writing regulations for mining wastes.
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EDF suggested that NRC develop comprehensive new requirements based on vadose zone (i.e., the unsaturated area between the impoundment and aquifer) monitoring.. EDF expressed the view that the large size of the tailings impoundments dictates monitoring to give earlier warning. EDF'reccemended developingseparateprogramsIorexistingandnewimpoundments. The program for existing sites should include prompt corrective actions and consideration of moving tailings to new lined impoundments if corrective measures fail.
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EDF's recommended approach is to use the SWDA requirements only as a baseline. EDF urged NRC to reiterate that the EPA standards are effective and self
~ implementing and that licensees must comply.
EPI expressed the view that "the ANPRM can only be seen as a means of avoiding timely conformance" and + hat NRC should have issued interim rules to conform. j EPA and the Sierra Club objected to NRC failure to comply within the 6 months mandated by Congress and expressed concern that delay in conforming means delay in implementation and enforcement of the EPA standards. EPI referenced and repeated its view that there are few, if any, SWDA requirements not covered by the EPA standards and that the general mandata for ccmparability is not sufficient grounds to delay cor.formance. EPI suggested that NRC could address implementation needs in a followup rulemaking but shculd conform at once. EPA referenced its comments in response to the proposed rule challenging the legality of delayed conformance and urging prompt action. l l
9 TX and NM concurred in the approach to develop a unified set of regulations that stand alone. NM endorsed organization by design, operaticns, closure, and post-closure. NM repeated concerns about the uncertain regulatory climate produced by the two-step rulemaking process and urged prompt NRC action to complete all rulemaking. Kerr-McGee and AMC repeated and referenced arguments raised on the companion proposed rule that NRC should reject the EPA standards and undertake an independent new rulemaking that balances risks and costs. HMC endorsed AMC's comments. Kerr-McGee stated that issues in the ANPRM " . . . suggest that the NRC fundamentally misconstrues the nature of its obligations in promulgating rules under UMTRCA." Kerr-McGee and AMC view the EPA standards as flawed based on technical grounds and jurisdictional arguments. The technical grounds are based on the volume and toxicity differences between tailings and hazardous wastes. AMC emphasized the jurisdictional points in its comments on the proposed rule that invalidates the EPA standard. Kerr-McGee and AMC argue that Congressional intent was for EPA to develop ground-water protection requirements consistent with EPA rules for similar hazardous materials (i.e., mining and mineral processing waste) not concentrated hazardous chemical waste. AMC asserted that NRC cannot adopt any of EPA's standarcs without independent new detailed supporting analyses that adequately reflect the risks, costs, and depressed state of the industry. Kerr-McGee believes that NRC has the authority and responsibility to develop new rules that reflect the difference between tailings and hazardous waste. AMC restttea similar views. Kerr-McGee cites the authority in the (Pub.L. 97-415) addition to
10 section 84a(1) requiring NRC to "take into account the risk to the public health, safety, and the environment, with due consideration of the economic costs and other such factors as the Commission determines to be appropriate." The new regulations advocated by Kerr-McGee would (1) ' allow ground-water degradation, (2) heavily weigh aquifer use, (3) be objective oriented rather than. prescriptive to provide flexibility, and (4) explicitly differentiate between existing and new sites rather than relying solely on licensee developed alternatives. EPA provided a copy of its recently published " Groundwater Protection Strategy' and suggested that this document be considered in developing additional requirements, particularly on levels of ground-water cleanup. Analysis of Comments Issues that bear on the scope of rulemaking include:
- 1. Industry comments reflected a consistent theme that the ground-water protection requirements referenced by EPA in 40 CFR 192 and its preamble need to be specifically tailored to mill tailings.
- 2. Both industry and environmental commenters recognize that implementation at existing sites is unique.
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- 3. Regulatory uncertainty, or the appearance of it, is perceived as compromising protection of health, safety, and the environment or at least delaying impurtant decisions.
4 Legal challenges to the validity and merits of the EPA standards stem from strong convictions. Timing and outcome of court action is uncertain.
- 5. The views on the risks represented by tailings are divergent and consensus is unlikely.
- 6. EPA has not issued proposed or final rules for other mining or milling wastes under SWDA. Industry claims the EPA standards are invalid on this basis. (Staffnote: Publication of s0ch standards should certainly be considered in any NRC examination of EPA's regulatory program to identify additional requirements needed to make NRC rules comparable to EPA's for similar hazardous materials.)
- 7. Industry comments challenge the adequacy of the supporting analyses for all provisions of the EPA standards, including ground water.
- 8. States support a unified regulation that stands alone.
- 9. EPA is still developing and publishing policy related to ground-water issues.
12 The Commission Authority and Responsibility statement was included in both the proposed rule notice and the ANPRM. The statement describes the Commission's view of the flexibility hfforded under section 24c of the AEA and NRC authority to independently make site specific decisions without EPA concurrence. Comments i Several commenters referenced proposed rule comments or submitted combined comments and repeated or amplified their views on the statement. - Sierra Club, EPA, WA, Dawn, EDF, and EPI views were addressed in the proposed rule analysis.
! In their ANPRM comments, Kerr-McGee, CO, and TVA supported the Commission's i
view. o Analysis cf Comments l As indicated in the analysis of proposed rule comments, the NRC's Office of { General Counsel (CGC) found no merit in EPA and environmental arguments and reaffirmed the views expressed in the statement. The statement and responses bear on the scope of rulemaking in the following ways: l
- 1. The statement addresses dealing with problems in implementing the EPA standards for several years until the second rulemaking is completed.
This reflected an intent that the rulemaking would generically resolve at least some implementation problems.
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- 2. Some industry commenters objected to the burden on licensees to propose alternatives.
- 3. Affirmation of the statement preserves the flexibility to deal with site specific problems resulting from implementing either NRC's or EPA's rules.
- 4. EPA and environmental groups are uncomfortable with NRC independent action on site specific decisions versus the public process of generic rulemaking.. Followup response by EPA and these groups is uncertain. None was indicated in the comments.
4.0 COMMENTS ON LISTED ISSUES I Public comment was requested on ten specific issues or questions. Commenters were asked to provide the basis in fact for any opinions offered or assertions made.- In the following sections, each issue is repeated and the comments summarized ana analyzed. The collective impact on the scope questions is addressed in Section 5.0. AMC offered to meet with staff to discuss the approach NRC should take but declined to comment on the specific issues.
- a. Issue (1):
Should the SWDA-comparable requirements to be placed in NRC regulations be explicitly restated to precisely duplicate EPA's language, or should substantive requirements be paraphrasea?
- Comments
14 001, NM and TVA suggested paraphrasing to clarify applicability to the tailings situation. TX, WA, and EPI supported paraphrasing. Kerr-McGee responded that NRC should do neither and should start from scratch. - CO urged maximum comparability with the EPA standards on both procedural and substantive aspects. EPA urged restatement except where administratively inappropriate (e.g., use of " Regional Administrator") to assure consistency. Analysis of Coments Issues related to the scope and nature of rulemaking included:
- 1. The majority of commenters favored paraphrasing.
- 2. The need to consider the uniqueness of tailings was identified by other categories of commenters in addition to industry.
- 3. EPA and some states do not favor tailoring to tailings.
- b. Issue (2):
Should all of Subpart F be included? What should not be included? Subpart F - Ground-water Protection of 40 CFR Part 264 as codified January 1, 1983 consisted of the following: 264.90 Applicability. 1
l 15 264.91 Required programs. 264.92 Ground-water protection standard. 264.93 Hazardous constituents. 264.94 Concentration limits. 264.95 Point of compliance. 264.96 Compliance period. 264.97 General ground-water monitoring requirements. 264.98 Detection monitoring program. 264.99 Compliance monitoring program. 264.100 Corrective action program. 264.101 - 264.109 (Reserved) As noted earlier in NRC's tentative approach, NRC is considering 40 CFR 264.92 .94 and .100 already imposed by the EPA standard. Coments Getty offered suggested changes to 40 CFR 264.91 .94 and.98 .100 of Subpart F ano 264.111 that should be made to accomodate the differences between tailings and hazardous waste. Changes included reflecting the comenters views that 40 CFR 192.32(a)(2)(iv) provides a buffer zone of allowable contamination, that monitoring and setting standards for organics is inappropriate, and that corrective action should include credit for engineered fixes. DOI suggested including all substantive parts of Subpart F and noted that if zero discharge is to be allowed, the provisions for alternate concentration limits would have to be eliminated. TX urged including all of Subpart F to provide flexibility to realistically regulate while achieving environmental protection. WA suggested deleting any references to disposal metheds other than impoundments and proceoural aspects. EDF and EPA advocated incorporating all of Subpart F. EPA's basis was to facilitate implementation and meet the
16 ccmparability requirement. EPI respondad that Subpart F need not be duplicated and that NRC shculd incorporate only those parts pertinent to mill tailings. NM suggested paraphrasing all the substantive requirement's in Subpart F. TVA recommendeo that NRC include only the portions applicable when the unioue nature of tailings is considered. Dawn urged that the approach embodied in 264.93 and .94 dealing with findings of no " substantial present or potential hazard to human health or- the environment" be retained. Dawn " vehemently" objected to the definition of point of compliance in 264.95 and urged that the point of compliance be flexible as long as it is within the site boundary. Kerr-McGee stated that only the general subject matter is appropriate and that the substance and
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detail must be changed in its entirety. To 111ustrate, Kerr-McGee outlined the 4 problems with the statistical test in 264.97 that have been identified by EPA itself and industry. Analysis of Comments Points made and the tone of these comments raised the following issues related to scope:
- 1. Whatever text is developed for insertion in NRC regulations needs to make sense in general and make sense for application to tailings.
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- 2. Implementation concerns result in views that more extensive discretionary additions are needed.
- 3. The referenced standards in 40 CFR Part 264 need to be integrated with the standards in 40 CFR 192.
- 4. Flexibility is a paramount concern.
- c. Issue ~(3): '
What should be included in a listing of hazardous constituents for mill tailings to replace the 375-item long list in Appendix VIII to 40 CFR Part 261 referenceo in 40 CFR 264.937 Should constituents not usually present or not present above trace levels be includea? What criteria should be applied to decide what constituents should be included? Comments Most commenters addressing this issue (Getty, 001, TX, WA, Kerr-McGee, NM, CO, and TVA) advocated an abbreviated list that reflects the constituents of concern in tailings. Getty suggested that NRC study each tailings deposit and develop a list by applying the 264.93 standard of no substantial present or potential hazard to human health or the environment. Getty suggested that only constituents potentially present based on ore chemistry and milling process should be included in the standards and ground-water protection programs. Getty ackncwledged that constituents of concern will be site specific. TVA expressed similar views. 00I suggested that a more than trace amount approach be used for nonradiological constituents and that EPA values for radiological constituents be used as accepted maximum. DOI advocated using data and records L
18 on tailings leachdtes and process records. TX also advocated an above trace level approach. WA suggested a simple list for radiological and nonradiological constituents and a '! potential negative impact" criterion. Kerr-McGee suggested that NRC develop a list of constituents relevant to tailings and set concentration limits for each based or health and environmental effects of each, Kerr-McGee referenced and submitted excerpts from a 1983 draft EPA contractor report that lists 41 constituents of concern for tailings. Kerr-McGee also took exception to the molybdenum value in the EPA standard based on health effects data. NM suggested that monitoring of constituents be based on the milling process and State and Federal monitoring requirements and that only trace constituents that pose health risks or synergistic problems should be addressed. NM stated that the license should have to address the risks involved. EPA pointed out the provision in 264.93(b) to exclude constituents but cautioned that a generic waiver "could be a very difficult demonstration." EPA noted "that hazardous constituents are those that have been de'tected [in] groundwater underlying a regulated unit and that are reasonable expected to be in or derived from waste in the unit." Analysis of Comments The following factors related to the scope are reflected in these ccmments:
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- 1. A clear consensus is present that only those constituents of concern in tailings'should be regulated.-
- 2. The constituents of concern will be site specific and based on the specific ores and milling prccess.
- 3. Industry favors generic waivers based on NRC sampling and risk evaluations.
- 4. Trace constituents should generally not be regulated.
- 5. EPA's point that constituents must meet the dual test of being detected and in or from the waste offers offers flexibility in site specific implementation without further rulemaking. The second test can be applied first to take into account the site specific ores, operating history, and leachate data.
- 6. Decisions on health effects from constituents will be controversial because of the state-of-the-art in estimating health effects from nonradiological materials and the paucity of data.
- d. Issue (4):
The NRC must establish SWDA-comparable requirements to the maximum extent practicable. In this context, what is practicable given current practice and the current state of technology? i
20 Getty comment on the liner state-of-the-art and the EPA incorporated standards in 40 CFR 264.221(a) and 264.228. Getty stated that realistically, the weight loading and hydraulic head in a tailings impoundment means that scme seepage is likely over the long term. ~ Getty argueo that such seepage would nut pose a health threat and should be allowed. Getty also pointed out the practical problem with artifically dewaterirg ta'11ings, particularly the slimes, and the cross-purpose posed by the requirement for thick covers which inhibit natural dewatering. Getty suggested that the req'uirements to remove, decantaminate, dewater, or solidify tailings be dropped on practical grounds. DOI stated that it is practicable to establish the hydrogeological characteristics and attenuative properties at the sites and to plan, conduct, and interpret ground-water monitoring. TX stressed the importance of the site and impoundment design and construction, noted the practicability of site characterization and modeling, ano expressed reservations about primary reliance on a synthetic liner. NM expressed similar views. NM also highlighted the protection afforded by ground-water protecticn aspects of 10 CFR 40, Appendix A and that existing sites will pose unique problems. WA listed three areas of questionable practicality: (1) ability to monitor all Appendix VIII constituents, (2) corrective action to restore aquifers, and (3) the detailed information to approve alternate monitoring requirements. Kerr-iicGee also challenged the practicality cf meeting the liner requirement in 264.221(a) based primarily on cost but also on instability over large areas and creation of the " bathtub effect" which requires active maintenance of a
21 leachate collection system. Kerr-McGee urged flexibility and referenced arguments on the impracticality of a nondegradation standard. EP! and EPA commented that all of the EPA SWDA standards are pr&c:icable. EPI
.suggestea that NRC clarify how it will implement the "any future time" provision of 264.221(b). '
Analysis of Comments Issues raised which bear on scope include:
- 1. The EPA primary standard - an impermeable liner - poses practicable
! problems.
- 2. State confidence in liners is low and siting remains important to States and others.
1
- 3. The referenced ground-water standards, which apply during operations through closure, may need modification to be compatible with the 40 CFR 192 long term post-closure standards.
4 EPA and others believe the standards are practicable but the perception persists that practicable has not been proven, particularly for tailings. 4
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- 5. Appendix A already has a number of ground-water protection provisions.
Conflicts and inconsistencies will be removed by the first step rulemaking. A block insert approach would not integrate existing Appendix A ground-water provisions into the EPA requirements.
- e. Issue (5):
Should NRC retain the basic sequence embodied in Subpart F where licensees who detect ground-water contamination progress through a graduated scale of action, from detection monitoring, through compliance monitoring, and on to corrective action, with significant time delays allowed between steps while plans and programs are being developed, reviewed, and implemented? Would it be advisable, practicable or appropriate to require, for example, that all NRC licensees have approved compliance monitoring programs that are automatically activated and implemented when needed? 001, TX, EDF, NMS, EPA, and TVA recommended that licensees have compliance monitoring programs that are automatically activated and implemented. Ker-McGee disagreed. DOI, EDF,-Kerr-McGee, NM, EPA and TVA suggested that the basic sequence in Subpart F be retained. DOI suggested that time intervals be adjusted to reflect the nature of tailings (e.g., 30 years of post-closure care may not be appropriate for the long-lived constituents). EPI expressed concerns that the sequence will allow too much time to elapse before corrective actions are implemented. EPA noted that the elements in Subpart F can all be included in the license with automatic triggers to avoid delays. EPI expressed concern about the need to accomodate the large size of tailings impouncments in monitoring programs and abuut the lack of baseline data at existing sites. DOI suggested that oevelopment of contingency plans up front would help design for closure and corrective action. WA commented that the
23 basic-sequence should be modified to allow maximum use of existing monitoring programs and reflect that there are "more existing ground water monitoring programs than there are plans for new tailings impoundments." Kerr-McGee urged more flexibility than provided in Subpart F to accommodate site specific circumstances. TVA emphasized that monitoring programs must be based on site specific design and site features. Analysis of Comments Issues relevant to scope of rulemaking raised are:
- 1. The basic sequence in Subpart F is logical and should be retained.
- 2. Implementation needs to reflect the nature of tailings, to accommodate application to existing sites since programs are already in place, and to
- allow site specific flexibility.
- 3. Site specific licensing actions can and should address the full sequence of ground-water protection features. For new sites, the entire sequence should be factored into initial design features and other decisions. For I
existing sites, the license and licensee programs should address the remaining elements of the sequence.
- f. Issue (6):
S i i
24 Should the basic SWDA scheme for the timing and duration of a " compliance" period, a " closure" period, and a " post-closure care" period be maintaineo? What modifications, deletions, adoitions should be made? Getty commented that the post-closure care provisions in 264.117 shculd not be applicable because of the existing provisions for long-term government control of closed facilities. WA recommended continued requirements for post-closure care that minimize reliance on active mainterance. Kerr-McGee outlined modifications needed to reflect the tailings situation. Kerr-McGee noted that (1) the 30-year post-closure care period in SWDA standards conflicts with the UMTRCA provisions for transfer to the government after stabilization, and (2) the SWDA requirement for completing closure in 180 days after operations stop is inconsistent with the need to dewater tailings for 5 to 10 years before final stabilization. NM and TVA supported the basic SWDA scheme. NM expressed the view that sufficient flexibility exists to deal with sit. specific problems. NM particularly supported the post-closure phase to minimize the risk that the government agency providing long-term care would have to rectify problems with st6bilization. EPA commented that 40 CFR 192 already includes two time periods that are different from SWDA rules and that NRC may need to adopt different closure and post-closure periods for tailings. Analysis of Comments Issues impacting scope raised are:
.1
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- 1. The UMTRCA provisions for long-term government control and cwnership of tailings are a significant difference in the management schemes for hazardous wastes and tailings. This difference may not have been fully factored into development of the EPA standards in 40 CFR 192. It must be factored into any NRC rulemaking to be comparable to SWDA rules and into NRC's implementation of the EPA standards.
- 2. Time periods are an area where NRC has flexibility.
- 3. The basic steps or phases in the scheme are logical and suppurted.
- g. Issue (7):
To what extent, how, and under what conditions should leak detection systems under single-liner impoundments be allowed to fulfill the requirements for a detection monitoring prugram that otherwise requires a monitoring well in the uppermost aquifer? DOI commented that leak detection systems should fulfill monitoring requirements only when site features under the impounament would effectively prevent migration to the aquifer. TX questioned the value of a leak detection system in view of the difficulty of repairing leaks under large volumes of tailings. TX also expressed concern about creating migration pathways to the aqui fer. WA recommended that this issue should be a site specific decision within the NRC or State regulatory authority. TVA also recommended site specific decisions.
26 EDF opposed reliance on leak detection systems in place of monitoring for the following reasons: (1) monitoring is needed to assure detection and remedy of grcund-water contamination, (2) leak detection systems are subject to electrical or other failure, and (3) the long-term reliability of the systems has not been proven. EPA expressed similar views. Kerr-McGee responced that such systems are appropriate only between liners. NM opposeo any reliance on single liners and leak detection systems for current practices at conventional mills but conceded that single liners might be appropriate under certain circumstances. C0 noted that a single clay liner with a leak detection system might be an acceptable alternative to a dual liner. Analysis of Coments Issues related to scope of rulemaking needed include:
- 1. The reliability of liners and leak detection systems is still in question.
This field is an emerging technology.
- 2. Site specific considerations are important. The costs and benefits and advantages need to be evaluatea for each situation.
- 3. Comenters only considered conventional size impoundments where large volumes of tailings are slurried. Smaller evaporation ponds associated with other recovery methods such as in situ mining, or other uranium recovery metnads were not considered. (NRC rulemaking or guidance will
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, need to be clear on applicability to nonconventional methods and special i
considerations needed.) i h. Issue (8): How detailed should NRC"s regulations be, and what should and should not be required in areas such as well construction, sampling and sample analysis, i determinations of annual average and seasonal ~ background concentrations. minimum detection levels, statistical treatment of data and determinations of statistically significant differences, recordkeeping and reporting, quality j assurance, etc? DOI recomended specifying details concerning well construction to assure i ic,ng-term reliable sampling. TX, WA, and Kerr-McGee commented that the topics listed are more appropriately addressed in guidance documents. NM suggested that performance standards from Subpart F of 40 CFR 264 should be included in
, regulations but that details shculd be included in guidance documents. TVA suggested addressing these topics in indivioual licensing decisions. C0 recommended including explicit requirements on well location and construction, i sampling, analysis, and reporting but only if case-by-case alternative flexibility is provided. EPA urged that the level of detail be at least equivalent to that of Subpart F but that NRC should maintain flexibility. EPA l acknowledged that implementation of Subpart F involves areas that require i
! further research and development. l Analysis of Comments Issues raised include: 2
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- 1. Implementation details belong in guidance documents.
- 2. Flexibility to consider site specific situations is important.
t : ) i l 3. The balance between performance standards and prescriptive detail is a i centinuing regulatory issue.
- 4. EPA is still on a learning curte in implementing Subpart F.
e
- 1. Issue (9):
To what extent must the NRC provide supporting environmental impact analyses j considering the nature of the reouirements under consideration, some of which have already been imposed by EPA and are effective? If supporting environmental evaluations are needed for SWDA-comparable rule changes except for the requirements already imposed by the EPA, should the NRC continue to jl proceed with only a single rulemaking to establish a complete set of SWDA-comparable requirements?
- 001, Kerr-McGee, and NM reconsnended a single rulemaking. NM reemphasized the ,
i need for prompt NRC action. TX expressed the view that additional analyses would be a wasted effort because certa.in of the EPA requirements are "unsupportable." Kerr-McGee commented that NRC must undertake comprehensive l environmental evaluations of its own. EPI repeated its position that conformance coupled with RCRA comparable action is a minor effort and of such limited scope not to constitute a major Federal action requiring additional l support. l f Analysis of Comments l c l I
- _ , _ _ . _ . . _ . _ _ . _ _ _ _ . - _ _ _ _ _ , . _ . . _ -~
o . 29 Issues related to scope are:
- 1. The preference for minimum regulatory uncertainty is clehr.
- 2. NRC may not be able to independently support SWDA recuirements in a rulemaking.
I
- 3. Nondiscretionary conformance may minimize the need for detailed supporting l
l analysis but industry views preclude a consensus among cormienters on this point. J. Issue (10): Is the flexibility cited in the proposed addition to the Introduction of Appendix A 10 CFR Part 40 sufficient or should the NRC develop and support additional modifications to conform to the physical stability aspects of the EPA standard? Ecology / Alert suggested that " corner-cutting wculd not be prudent." WA ano TVA commented that the flexibility cited should be sufficient. NM urged that the flexibility be used " sparingly." EDF, CO, and EPA opposed any modification of the prescriptive requirements in Appendix A. C0 cited its successful implementation of comparable requirements. EDF emphasized the importance of rock cover to control long-term erosion, the advantages of below grade disposal to control erosion and intrusion, and the advantages of stageo disposal to reduce radon releases.
30 Kerr-McGee repeated and referenced its position that the flexibility for licensees to propose alternatives is only an inadequate beginning and that NRC needs to develop new rules that focus on objectives rather than prescriptive requirements. EPI argued that EPA fully intended that requirements such as those in Appendix A be included in tailings programs in order to assure compliance with its standards. EPI states that the EPA standard " requires control for periods longer than 1000 years" and that institutional controls are only "an essential backup to passive control." EPI therefore concludes that there is no real difference in NRC's and EPA's approach that warrants any additional changes. According to EPI, NRC should include additional prescriptive requirements to reflect information developed since Appendix A was issued in 1980 and the cited flexibility is "the most one should expect." EPA suggested that NRC provide notice and opportunity for comment when the flexibility is to be applied. 1 Analysis of Coments i Issues related to scope include: l
- 1. Comenters other than industry reflect a consensus that the cited flexibility is sufficient.
! 2. Relaxing requirements generically is perceived as a loss of protection. l l
31
- 3. Industry is concerned about the burden on inoividual licensees to propose and defend specific alternatives.
5.0 DISCUSSION
- a. Issues resolved in the first-step rulemaking.
Assuming the Commission approves the first-step rulemaking as recommended by staff, the following issues are resolved: (1) NRC is proceeding with rulemaking and case-by-case implementation and enforcement of the EPA standards on the basis that the EPA standards in 40 CFR 192 are valid and consistent with EPA authority with one exception. i The exception is the requirement for epa concurrence on site specific decisionsin40CFR192.32(a)(2)(iv). l (2) NRC is not required to undertake a completely new independent rulemaking I by the addition of requirements to consider risks and economic costs to section84a(1)oftheAEAorotherprovisionsofUMTRCA. (3) NRC can take the time needed for the second-step rulemaking without compromising protection of the public health and safety and the l environment.
32
! (a) flRC can approve site specific alternatives to flRC and EPA standards proposed by licensees without EPA concurrence. ] (5) Agreement States can adopt more stringent standards than EPA or NRC rules. ; b. Carryover from first-step rulemaking.
i i Issues and recomendations were raised in the first-step coments that were not completely resolved or were acknowledged as beyond the scope of the action. l i Some of the issues were repeated or referenced in this analysis. However, a
! few points should be highlighted:
(1) The major carryover item is the numerous suggestions for additional l changes to Appendix A. Industry reconmended a number of conforming changes related to the radon and longevity aspects of the EPA standard. Pages 19-22 of the staff analysis on the first-step are included at the end of this section. The industry suggested conforming changes are f sumarized and discussed beginning at the bottom of Page 19. Aaditional changes recomended by a variety of connenters are sumarized in l Pages 20-22. The recomendations addressed virtu 411y all aspects of 1 Appendix A. The AMC recomendations were particularly extensive. i
- (2) While the first step resolves issue (4) above from the Comission's i
perspective, it is contrary to EPA's position. EPA is still willing to consider resolution of this issue througn agreement on generic l J i
33 methodologies for implementation in lieu of site specific concurrences. The outcome of these efforts and the related memorandum of understanding is still uncertain. (3) Issue (1) above resolves NRC's course until or unless court action sets aside some or all of EPA's standards. The court cases are being actively pursued.
- c. Issues in response to ANPRM.
Issues were listed in this analysis after each summary of comments. The collective topics raised generally fall into four categories: 1) procedural aspects, 2) technical issues, 3) site and tailings specificity, and
- 4) regulatory approach.
Procedural Aspects: Regulatory uncertainty from prolonged multiple steps. Pending court actions challenging the EPA standards. Need for balancing costs, risks, and benefits.
I\ 3a , j,'.: Adecuacy of EPA supporting analyses on ground water to meet NRC NEPA , requirements. / ! 4 Disagreement on NRC authority to independently make site specific decisions. Technical Issues: y, , ,
"[' i Divergent views and lack of data on risks and health effects.
1 i Absence of EPA SWDA standards for mining or milling wastes in gener61. ' >
/
Lack of confidence in synthetic liner and leak detection technology, ur[ proven i practicality of the EPA standards, and developing EPA ground-water programs.' '
, s ',
Site and Tailings Specificity: ' Unique implementation at existing sites and need for site specific flexibility. Burden of developing site specific alternatives. Need for tailoring requirements for tailings, including modification of referenced 40 CFR Part 264 to reflect collective requirements of 40 CFR 192 and long-term government control.
', 35 Regulation of only those constituents of concern and site specificity of constituents. 4, ,1. ' y 1 Reculatory Approach: Place for implementing details. i Flexibility in the EPA standard without rulemaking. t i Soundness of the basic EPA scheme. a
, Uranium recovery methods other than current conventional mill practices.
Prescriptive versus objective regulations. Degree of 40 CFR 192 fulfillment of the SWDA comparability requirement and the degree of flexibility in comparability. Resistance to generically relaxing any requirement. One set of regulations that stand alone.
- d. Issue impact on three alternatives.
l
o 36 Alternative 1. Fulfill the conformance mandate by a simple reference to the ground-water standards in 40 CFR 192 similar to current references.to 40 CFR 190. Pro:
- 1. Simplest action so it would minimize delay and uncertainty.
i
- 2. Minimizes lost resources should court action invalidate the EPA standard.
- 3. Minimizes the need for supporting analyses and addressing risk end health effects on a generic basis.
- 4. Minimizes use of resources until EPA promulgates standards for other mining and milling waste.
- 5. Avoids dealing generically with developing programs and unproven j technology in rulemaking.
- 6. Relegates all implementation issues to guidance documents and site l specific decisions.
- 7. Eliminates or delays controversy over SWDA ccmparable flexibility in l
l rulemaking forum. 1
37
- 8. No generic requirements would be relaxed.
Con:
- 1. May not eliminate the need for supporting analyses. The EPA support for the ground-water standards is minimal (e.g., no EIS; RIA).
- 2. Maximum site specific' balancing of costs, risks, and benefits.
- 3. Does not eliminate the site specific concurrence provision of 40 CFR 192.32(a)(2)(iv) through rulemaking but this point could be addressed with an "except" clause.
- 4. Provides no rulemaking resolution of site specific or unique tailings considerations or other implementation issues.
- 5. Would still require examination of the SWDA comparability issue.
- 6. Part 40 would not stand alone. 40 CFR provisions as codified January 1, 1983 would be referenced.
Alternative 2: Fulfill the mandate by inserting the clearly nondiscretionary ground-water provisions imposed by EPA in 40 CFR 192-and referenced standards.
38 Pro:
- 1. Modest action that would probably take only a few months longer thar.
Alternative 1.
- 2. Moderate loss of resources should court action invalidate the EPA standard.
1
- 3. Minimal need for supporting analyses since essentially nondiscretionary.
- 4. EPA site specific concurrence provisions in 40 CFR 192 can be eliminated through rulemaking.
- 5. Minimal use of resources until EPA promulgates standards for other mining f
and milling wastes.
- 6. Minimizes dealing generically with a developing and unproven technology.
- 7. Resolves which provisions are actually imposed and which are not through rulemaking to facilitate implementation but relegates other implementation issues to guidance and site specific decisions.
- 8. Incorporates the basic EPA scheme into NRC rules and virtually eliminates or delays controversy over SWDA comparable flexibility in rulemaking forum.
39
- 9. Focuses on the general standards and minimum regulatory requirements and relegates as much prescriptive detail to guidance as legally permitted.
I
- 10. No generic requirements would be relaxed.
- 11. NRC rules woulo stand alone without having to refer to the EPA rules as ccdified January 1, 1983.
Con:
- 1. May not eliminate the need for supporting analyses. The EPA support fur the ground-water standards is minimal (e.g., no EIS; RIA).
- 2. Maximum site specific balancing of costs, risks, and benefits.
l
- 3. Provides virtually no rulemaking resolution of site specific or unique tailings considerations.
- 4. Resolves only one aspect of implementation through rulemaking.
1
- 5. Would still require examination of the SWDA comparability issue.
Alternative 3: Proceed with a comprehensive rulemaking that includes extensive discretionary action by NRC.
40 Pro:
- 1. EPA site specific concurrence provisions in 40 CFR 192 can be eliminated through rulemaking.
- 2. May be able to factor in EPA standards for other mining westes if EPA moves quickly.
- 3. Partial resolution of issues possible in spite of developing programs and unproven technology. Details can be relegated to guidance documents.
- 4. Maximum opportunity to distinguish between existing and new sites _and reflect differences between tailings and hazardcus waste.
i j 5. Preservation of full EPA scheme. I I
- 6. Potential opportunity to consider all uranium recovery activities or at least clarify status.
- 7. Maximum opportunity and flexibility to deal with objective oriented rules.
- 8. NRC rules would stand alone without having to refer to the EPA rules as codified January 1, 1983.
Con:
41
- 1. Longest period of uncertainty and delay.
- 2. Maximum potential for wasted resources, since court action could disrupt midway into effort or invalidate work after completed.
- 3. Requires most effort for environmental impact analyses and controversial balancing of costs, risks and benefits.
- 4. Difficult climate for consensus because of divergent views and lack of data on risks and health effects.
- 5. Uncertain EPA schedules for developing standards for other milling. wastes.
- 6. Limited resolution of issues because of developing programs and unproven technology.
- 7. Maximum controversy over degree of flexibility afforded by the requirement to be SWDA comparable.
- 8. Handicapped by limited practical implementation experience with the flexibility in the EPA standard without rulemaking (e.g., on constituents meeting the test of being likely due to the tailings).
- 9. Maximum controversy over any relaxed requirements or perception-of relaxation.
, , byCerf from c e s /, r.'s oY com m eo {S on proyo.ce) n/4 also suggested c:nsicering adcitional cover s:ecifica:f ons cut cic not icentify any specific topics.
Response
Staff generally agrees that the type of factors that EDF f centifiec are imocrtant to consider in evaluating ex ected cov,er performance. In fact, the staff uses the c:mouter coce for multi-layers referenced by EDF in its calcula-tiens. Hcwever, such factors are very site scecific and represent a level of detail that NRC normally relegates to guidance or procedural documents. It is also difficult to speculate on the numcer and importance of all factors wnich might im act design at a specific site. The design margin recommenced by EDF is essentially aoplied in the staff's use of conservative material parameters ~ in the site specific evaluation of the cesign of soil anc rock covers. EDF also urged that an active monitoring program for tailings cover stabil-ity ce acced to the Ccmmission's rules. The EDF' rec:mmenced Oregram would last for cecades until the cover has demonstrated its stability or remedial action has been taken and the remecial action's ef fectiveness affirmed.
- lescense:
Criterien 12 cf the C mmission's rules has a minimum recuirement for annual ins:ec:fons by the custocial governmen: agency :: confin the integrity of 5 acili:ation and the need for any maintenance. Criterion 12 also nas an
- tion for more frecuent ins ections. Any monit: ring neecec prior to transfer to tne government agency can ce incluced on a site s::ecific basis in :ne reclamation plans.
Incustry c:mments (WI, AMC, CMC) nat reliance on active maintenance snculc :e alicwec are accressac uncer Mccification 2(a) cnanges to Criterien 1. Ge3ln :;> wI anc AMC rec:m=encec a nu=er of cnanges casec :n :ne C:= mission's earlier sus ension action anc changes originally :re csec Oy staff in SECY-33-523. The rec:=menced cnanges anc rationale for acti:n .ere essentially
- ne same as :resentec in :ne sus:ensien actices anc SECY-53-523. Little Or Ca/'.S/E5 '9
- 3 "F:l 10 !?ANGE5
no new information was provided. Examples include deletion of belcw grade or ecuivalent as the prime cotton in Criterien 3, celetion of prescri ive recuire-
~
ments in Criterion 4, anc daie:1cn of racium c:ntent restric:fons en c:ver materials in Criterion 6. Xerr-McGee also rec:mmenced dele:icn of the racium content recuirement. Res:cnse: Since one adcitional conforming changes suggested by WNI, AMC,-and Kerr-McGee suggested offerec no new cases not already considered and rejected and no sucstantive succor:ing information on why they are needed on a generic basis versus site specific treatment, they are rejected for the first step rulemaking. A wider scoce of changes was consicered by the Ccmmission and rejectec before . publication of the precosec rule, en the ground that, recuirements estaclisned through extensive ruiemaking cannot ce set asice merely because they may not be required. The intent of :nis action is ncnciscretionary conforming changes to eliminate conflicts and inconsistencies, acd imposed standarcs cr Congressienal
~
direction, or make minor editorial or clarifying changes. Incustry comments were mainly statements or claims based en "may not be required" ~and would recuire extensive new rulemaking anc are nus consicered cu side :he scope of tne present action. A numcer of c:mments proposed sceci fic or general cnanges that are not cicectly relatec to ::nforming to the E?A stancard but would make Apcencix A . more explicit or pre:ective. The following ciscussion summari:es these c mments. Ecology / Alert suggestec using 5 :on rock slacs as cover material. EDF urged the Commission to acent scecific recuirements en r.en final s:acili:a-tion must take : Tace, en interim stabili:2:icn for cicsec mills, on accition of fluids curing closure, en use of cus: su cressants curing closure, and on
- nasec cl0}ure curir.g 0:erations. ECF also acvocatec manca:Ory state-of-ine-ar; waste treatment anc ::erations as reflectec in ::nce::ual recosals precarec for =ctential ceveic ment of mining anc milling in Virginia. Lewis stated that numerical criteria in Ord:erien 5 ocuic maxe :ne stronger grounc-
.ater :retection recui ement more enf rcea ie. 20 suggestec amclifi:1:icn of 04/19/S5 20 '.0 CFR 10 CHANGES
tne requir:ments in Criterien 12 for the cus:ccial government agency's moni Or-ing programs. COI suggested accing previsions en maintaining ground water sampling wells and on how long inscection anc meni:Oring would c:ntinue. WY suggestec tnat cleanuo stancards for adjacent lands :e develocec to define wnen they can be released for unrestricted use. WY cuestioned wnether the one year. baseline in Criterion 7 is adequate, sugcestec' clarifying
" unrestricted areas" in Criterion SA, questioned the compatibility of Crite-rien 9 with self bonding in Wyoming, and excressed misgivings on the Criterion 11C provision en not aquiring all subsurface rignts.
Industry c =menters viewed tne proposed conforming rulemaking as an c:portunity to reiterate objections to any or all carts of Ac:endix A and advocate less restrictive provisions. Many issues icentified in lawsuits " and petitions for rulemaking were repeated. WNI anc AMC procesed changes to Criterien 8 on checking =arameters to control yellowcake emission to allow reliance en alarms. WNI and AMC cojected to :ne Criterion SA 10-day reporting requirement. and "cualified engineer or scientist" .inscec:Or requirement. AMC acvecatec checks only when tailings are being acded. Changes to Criterien 9 to reduce the licensee's liacility and amount of financial assurances were also crocosed oy WNI. Self-insurance was advocatec for Criterion 9 by AMC anc WNI. WNI urgec flexibility in the minimum long term care cnarge, no inflation acjustments, anc reliance On state funds for ccm:aracle ;ur:cses in Crite-rien 10. AMC excressec similar views on relying an state funcs. Kerr-McGee , c=mments reflected a similar position en Criteria 3, 9, anc 10. AMC argued against the 1% real interest rate in Criterion 10. AMC sue: criers (HMC, UMC, anc Rio Algem) by reference su:; ort AMC's :osition in all res:ects.
< err-McGee anc AMC =r::osec s:ecific accisional :nanges not reia:ec :o c:nforming Out mandated in :neir view by legisla:icn inacted anc :ner events su=secuent to promulgation of A:;endix A. The basis is essentially the same as notec above in :ne discussion uncer Sc::e Of Rulemaking on :neir generic rec:mmencation to ancerta(e an ince=encent new rulemaking. < err McGee argued
- na: Criterien 3 sncule :e mccifiec or deletec s :na: existing sites ce not nave :: c:nsicer :elow grace cis:csal. Kerr-McGee arguec :na: rock c:vering to mee: :ne s:ecifications in Criterion 4 is imerac:1 cal in : arts of :ne 04/;3/55 21 ;C C.:R 20 CHANGES
t Scutnwest because ne rock would have to be imcorted and the alternative vegetative cover is also imoractical. Similarly ne gentle sloce recuirements in Criterien 4 are not practicable at all existing sites cecause of soil succly and land ownership and should be deleted in Kerr-McGee's view. Acclica:icn of the siting criteria :: existing sites must involve both short and long-term risk and cost balancing and Acpendix A does not make this acclication clear, in fac: Criterion 1 contracicts it, accorcing to.Xerr-McGee. In effect, Xerr-McGee adyccates cavelocing separate rules for mills where ocerations have ceased and no plans to restart are involved. These secarate rules would address all aspects of Appendix A including siting. Kerr-McGee also suggested eliminating the first listed item in Criterien 5 cealing with liners since it might be read to require liners at existing sites. Kerr-McGee and AMC urged deleting the restriction en credit for thin synthetic layers to reduce racon emissions in -- Criterien 6. AMC providec extensive additional suggested revisions to Accendix A. The suggested changes would revise Acpencix A to folicw the accccacn cutlined for NRC to take in a new independent rulemaking as discussed abcve. Suggested cnanges included acding site specific optimi:ation for staof11:atten in the Introduction, distinc fon between existing anc new sites in Criterion 1, provision for c:s:/ benefit jucgments in Criterien 1 and plannec reliance on maintenance in Criteria 1 and 12. AMC provicec rewrites of Criterien 3 to reflect 200 year stacilization and Criterion 5 to reflect its views on risk, costs, ' site scecificity, and existing vs new site distinctions. AMC suggested enanges to Criterien 8 to include reliance en institutional con:rois anc cele:icn of references to controlling racen curing c=erations witncu: regarc to risk. Cawn procosec cnanges to Criterion a cealing witn :ne slece of emeankments and covers. Cawn suggestec more flexibility, a 5h:1V insteac of 10h:1V cesign basis, anc more site s:ecific flexibility. 04/13/55 22 10 CFR 40 CHANGES
4 6 4 e APPENDIX A - ANPRM
Feder:1 Register / Vol. 49. No. 228 / Monday. Novemb1r 28.1984 / Propos;d Ruhs 46125 acquirement still exists and the licensee for 'he disposal of any such byproduct would be required to subrmt an acceptable retammg ultimate custody of the site where matenal. or is essential to ensure the long taihngs. or wastes are stored to confirm the replacemeni surety withm a bnef penod of term stabihty of sucts disposal site. shall be time to allow at least 60 days for the mtegnty of the staoihzed taihngs or weste
, regulatory agency to collect. transferred to the Umted States or the State m wnich suca land to located. at the option of systems and to determme lhe need. if any. for Proof of forfeiture must not be necessary to maintenance and/or momtonng Results of suca Siate in view of the fact that physical the mspection snail be reportea to Ine collect the surety so tnat in the event that the heensee couid not ; roude an acceptable isolation must ce the pnmary means oflong-Commission within ti0 days followmg each term control. and Cosernment land replacement surety within the required time, mspection The Commission may require the surety snall be automatically collected ownersnip is a destrable supplementary more frecuent site inspections if. on the basis pnnr to its esoiration The conditions measure ownersmo of certain severaole of a site-specific esaluation. such a need subsurface interests ifor example. mineral desenbed adobe would habe to be clearly appears necessary due to the features of a statea on any surety instrument which is not ngntsl may be determined to be unnecessary to protect the pubhc health and safety and particular taihngs or weste disposal system.
open. ended. and must be attreed to by all the environment. In any case. however. the parties. Fmancial surers arrarigements acoiscaneloperator must demonstrate a g.Dated at Washirigton. DC. this 20th day of generally acceptable to'the Commission are: la6 Surety bonos: senous effort to obtain such subsurface For the Nuclear Regulatory Commission. (bl Cash deposits. r+ ants. and must,in the event that certain Samuel l. Chilk. Icl Certificates of deposit. ngnts cannot be obtamed. provide g,cretary of tbe Commission. Id) Deposits of aosernment secunties: notification,m local puohe land records of the p 3 % fact that the land is bemg used for the (elirrevocable letters or hnes of credit: .nd disposal of radioactive matenal and is """CO*'*' tf) Comemations of the above or such other suotect to either an NRC general or specific types of arrangements as may be deproved hcense pronibitmg the disruption and by the Commission Howeser. seifinsurance. disturoance of the taihngs. In some rare or any arrangement whicn essentialls 10 CFR Part 40
~
consiitutes scifinsurance le g a contract cases. such as may occur witn deep bunal wnere no onsomg site surveillance will be Uranium Mill Tailings Regulations; with a stare or Feoeral agencyl. will not required. surface land ownersnio transfer satisfy the suretv requirement smce this Ground Water Protection arid Ottier requirements may be waived. For licenses issues provides no additional assurance other than that wnich already esists through hcense issued before November 8.1961. the recuirements. Commission may take into account the status AGE 8eCv: Nuclear Regulatory of the ownership of such land. and interests Commission. Cntenon it)-A mmimum charee of therein. and ine abihty of a licensee to
$250.00o 11978 dollars) to cover tne costs of AcDow: Advanced notice of proposed long-term surveillance shall be paid by each transfer title and custoo) thereof to the Umted States or a State. nJiemaking.
mill operator to the general treasury of tne Uniteo States or to an apprognate State D. lf the Commission subsecuent to title agency pnor to the termmation of a uramum transfer determmes that use of the surface or SUssasAny:The Nuclear Regulatory or tnonum milllicense. suosurface estates. or both. of the land Commission (NRC)is considenng if site surveislance or contrni require nents transferred to ine United States or to a State further amendments to its uranium mill at a particular site are determined. on tne will not endanger the pubhc health. safety. tallings regulations. The future basis of a site-specific evaluation. to be welfare. or environment the Commission rulemaking proceeding for which this may permit the use of the surface or sigmficantly greater than those specthed n notice is issued is pnmanly intended to Cntenon 12 ie a.. if fencing is determined to subsurface estates. or both. of such land m
- manner consistent with the provisions incorporate ground water protection be necessars t. sanance m funoing provided n these entena. If the Commission provisions and other requirements requirements may be specified by the established by the Environmental permits such use of such land. it will provide Commission. In any case. the total charge to the person who transferred suca land with Protection A8encY for similar hazardous cover the costs oflong-term survetilance shall the ngat of first refusai with respect to such wastes into NRC regulations. This be sucn that. with an assumed 1 percent use of such land.
annu 3 real mterest rate, the collected funda action is necessary to make NRC wiil y ad mterest m an amount sufficient to L Matenal and land transferred to the requirements similar to EPA standards cover tne annual costs of site surseillance, Umfed States or a State m accordance with as required by provisions of the The total cnarse will be adiusted annu.lly this Cntenon shall be transfer ed without cost to the Umted States or a State other than Uranium hiill Tailings Radiation Control pnar to actua6 payment to recognize inflation. sommistratne and legal costs mcurred in Act. The mtlation rate to be used is that indicated carrymg out sucn transfer. DATE:The comment period expires by the change m the Consumer Price Index puchsned by the U S. Department on Lbor. F.The provisions of this Part respactmg January 25.1985. Comments received transfer of utte and custoay to land and Bureau of Labor Statistics.
. tailings and wastes snail not appiy in the after this date will be considered ifit is cas* flands he d in trust by tne Umted practical to do so but assurance of
/// Sae ona Byproduct.Storeno/ Omnersmp Cntenon 11- States for .my Indian trice or lands owned by consideration may not be given except sucn incian tnbe suniect to a restnction as to comments received on or before A. These entena relating to ownership of this date*
taihngs and Ineir disposal sites oecome against abertation imposed by the United effective on November 8.1961. and appiy to States. la the case of such larids which are AOCRESSES: Afail comments to used for the disposal of byproouct matenal. ail hcenses re mmated. issued. or renewad as defined .n tms Part, the bcensee snall Secretary. U.S. Nuclear Regulatory after mat date. Commission. Washmgton. DC 20555. enter m'a arrangements with the Commission B. Any uramum or thonum milling hcense Attention: Docketing and Service or tashngs hcense snail contain suca terms as may be appropnate to assure the iong-term surveillarice of such lanos by the Umted Branch, or deliver comments to Room and conditions as the Commission States. 1121. IN H Street NW Washmgton. determines necessary to assure that pnor to DC between S:15 a.m. and 5:00 p.m. termmation of the hcense. the hcensee will IV Lore .7tm Sae s.urvedlam.e weexdays. comply with owneesnio requirements of this Cnterna 12-The final disposttson of entenon for sites used for fashngs ossoonal. taihngs or wastes at miihng sites should be FOR PunmEn poposteaADOes CO8rTACt C. Title to the by proouct maienst hcensed suca that ongome active mamtenance is not Robert Fonner. Office of Executtve Legal unoer this Part and land. meluomt any necessary to preserve isolation. As a Director, telephone (301) 492-6602. or mterests therein tother than land owned by mimmum annual site mspections snail be Kitty S. Dragonette. Division of Waste the Umted States or by a Statei wmcn is used conducted by the govemment agency Management. U.S. Nuclear Regulatory i 3 2 e
# 42s Federal Register / Vol. 49. No. 2:8 / Monday. NovembIr OS.1984 / Propos1d Rules Commissron. Washington. DC :0535. would then incorporate withm NRC telephone (301) 427-4300. attemative proposals as routme regulations elements of EPA's SWDA licensmg acuans.
supet.ansawTAJtv verons4AT10sc The requirements already imposed by EPA. Nuclear Regulatory Commission has and establish any further requirements I. Background on the Ground Water today proposed modifications to its necessary for the NRC to have SWDA. I'8"' existmg mill tailmes renulanons m comparabie standarcs as called for by The SWDA requiremer.ts imoosed by Appenoix A to 10 CR Part 40 for the Section 84 of the Atomic Energy Act of the EPA in its rule pubbshed Octooer i ( purpose of conformmg them to generally 1954. as amended. 1963 I48 R 459251 were desenbed by i apphcable standards promuigated by The Commission considered further the Erivironmental Protection Agency the EPA in that Not:ce as follows: revisions to Appendix A to conform tt to " Consistent with the standards EPA (EPA) on September 30.1983 Isee 48 G i the physical staothty aspects of the EPA issued under the SWDA for hazardous 45920. October 7.1983). Dis advance standard, but did not propose them. The wastes (47 FR 3:274-32388. July 26,1982) nonce of proposed rulemaking (ANFRM) EPA standard requires that the final the standard for tadmss piles has two announces that the Commission is cover design provide reasonable parts:(1) A ' primary' standard tnat considenng proposmg further assurance of effective cortml"for one requires use of a Imer designed to modificanons to its regulations m 10 thousand years. to the extent reasonably prevent migration of hazarcous CFR Part 40, to satisfy certam provisions achievable, and in any case. for at least substances out of the impoundment, and of the Uranium Mill Trathngs Radiauon 200 years." The EPA's numencal (2) a 'seccadary' ground water Contrcl Act of 1978 (UMTRCA), and longevity standard takes a different protecuan standard requirmg. in effect, requests public comments on pertment approach to stability than do the NRC that any hazardous constituents that issues and questions- requirements. In Appendix A. the NRC leak from the waste not be allowed to On October 7.1983 the EPA pubbshed estabhshed numerous presenpuve degrade ground water. The pnmary generally applicable standards for the requirements for specific design features standard applies to new portions of new management of uranium and thonum in order to assure stabihty without or exisung waste depositones. The byproduct matenal. The standards were active maintenance for an indefimte secondary standard applies to new and developed by the EPA in a manner to penod of ttme following closure.The existmg pornons. the pomt of satisfy the pmytsions of section :75 of EPA rule sets a performance standard compliance bemg at the edge cf the the Atomic Energy Act. as amended, for a limited ume penod. In addition. the waste impoundment. The specific that for nonradiological hazards, the preamole to tbo EPA standard and the hazardous substances and standards * * *
- snall provide for the supportmg environmental evaluation concentranons (i.e baciground levels) protecuan of human health and the mdicate that the EPA consciously that define noncompliance with the environment consistent with the considered the acceptabihry of relying secondary standard at each site will be standards required under Subtitle C of on active mamtenance to provide estabbshed for uramum mill tailings by the Solid Waste Disposal Act. as stability following efosure. and did not NRC and Agreement States.The SWDA '
amended. which are applicable to such crohibit it. Rather the EPA standard rules. however, permit alternate hazards." To achieve this goal the EPA . requires that. for nonradiological concentranen hmits to be established included within its requirements hazards the need for acave mamtenance when they will not pose "* * *a published October 7.1983. selected only be mmimaed. NRC's Appendix A substantial present or potential hazard provisions from its regulations issued flatly pronibits any planneo rebance on to human hesitn or tne environment" as under the Solid Waste Disposal Act acuve mamtenance. long as the alternate concentration limit (SWDA) by cross referencma the SWDA Ilie Commission recuests ccmments is not exceeded. The rule also allow provisions.These specific provtsions are on whether it should delete or modify (sic)' hazardous constituents
- to be now tn effect and the NRC is addiuonal provisions of Appendix A exempted from coverage by toe permit considenng undertaking a rulemakmg including prescnptive requirements for based on the same entenen. EPA which would clanfy its regtdations by specific destan features wruca may not deter =mes the alternate concentration including within them those SWDA be necessary to meet tne EPA standard, standard or exemption under the requirements selected by the EPA for The presenpave requirements ut SWDA. EPA's concurrence would be apabcanon to uramum and thonum mill question melude those for minimizmg required under the proposed standards taihngs. upstream drainage area. sitmg where for tanimgs."
The rulemaking under considerstion there is good wmd protection. relatively The EPA went on to further desenbe would also be intended to satisfy a flat slopes. mandatory vegetative or the pnmary standard. pnmanly requirement placed upon the NRC under rock cover, cobble size rock. high quality consisttng of the boer design section 84 of the Atomic Energy Act of rock cover, and rock armormg. The requirements. and clanfy the secondary 1954. as amenced. to ' *
- msure that Cornmission also considered deietmg stancard, by saymg-the management of any byproduct the prohibition on renance on active "
"The prunary standard. 40 CFR matenal * *
- is carned out in such mamtenance modifvmg Catenon 3 0642.21. can usually be satisfied only by manner as conforms to general mandatmg below grade disposal as the usmg liner matenals (such as plastics) requirements estabiished by the pnme option. and de!ermg the tnat can retam all wastes. Exempt: ens Commission. with the concurrence of the requirement for background radium per .itt.ng use of other liner matenals (EPA) Admmistratcr. wmch are. to the concentrations m cover matenals. Relief (such as c:ay) that may release water or maximum extent practicable, at least from these retamed provisions is smau quanett:es of other sucstances or, cornparable to requirements appbcable available throuen case-by. case m some cases. permittmg no bner may to the possession. transfer. and di.sposal proposals by bcensees as noted m be granted only d nuarauon of of similar hazardous matenaf regulated proposed acdmons to tne introducuan hazarocus consutue.nts mio the ground by the Admmistrator under the Solid of Appendix A of 10 CFR 40. The weter or surface water would be Waste Disposal Act. as amended." The Commission sens ecmment on whether presentea mdefimtely * * * " -
ruiemsking uncer consideranon. which this is suff.ctent f'exibility m view of the "Under these stancards, a!! new is the pnmary subiect of this ANPRM. Commission s intent to consider wasie storage areas (wnether new 9 9
Federal Reglater / Vcl. 49. No. 28 / M:ndry. Novemb:r 26, 1984 / Proprsid Rules 46427 wasta facihties or expansions of existing and the followmg sections of the SWDA piles) are subject to the pnmary regulations: 1954. as amended. Consistent with that standard-the liner requirement. If new i. Subpart F: authonty and m accordance with wastes are added to an existmq pile. 40 CFR 64.91 Required programs section 54c. of that Act. the Commission however. the pile must comply with the 40 CFR 064.95 Pomt of compitance has de discreuen to review and secondary standard-the hazardous approve site specific altematives to 40 CFR 64.96 Compliance penud consutuent concentranon standards for 40 CFR OM.97 General ground water standards promalgated by the health and environmental protecuon. momtonng requ:rements Commission and by the Admmistrator of Whether for a new or existmg pile, if the 40 CFR :64.98 Detecuan monitoring the Environmental Protection Agency. In secondary standards are found not to be program the exercise of this authonty. section satisfied and subsequent correct.ve 40 CFR 64.99 Compliance momtonng 84c. does not require the Commission to scuons fail to achieve compliance in a program obtam the concurrence of the reasonable time, the operator must ii. Subpart C; Admimstrator in iny site specific cease depositing waste on that pile., attemauve which atisfies Commission 40 CFR 264.117 Post. closure care and Also m its October 7.1983 Notice. the use of property requirements for the level of protection EPA stated that " EPA s responsibilities for public health, sat ty. and the tii. Subpart K: to establish standards under section a environment from rat Qcal and 40 CFR :64.2:8 Monitonng and do aflor part of t e fo o ng inspecuan (of impoundment liners), as nonradiological hazards at uramum mill se applicable tailings sites. As an example, the ns of the SWDA ngu1aum,. bp p, 40 CFR 264.228 Closure and postclosure Commission need not seek concurrence of the Admimstrator m case-by. case 40 CR 264.92 Ground water protection standard e above qu a i ns from the EPA's co c ation imi s a d el sting of 40 CFR 264.93 Hazardous constituents October 7.1983 Notice serve to clanfy the substance of EPA's standards, the hazardous constituents for specific sites. (Th E It should be understood that the three se nons te oi d and [e LN[a7d t e na r n ope Fps cn g ngulau m & al adopted as i 192.32(al(2l) 40 CFR :64.100 Corrective action of the rulemaking the NRCis herein with the exercise of the Commission's program considenng undertaking. The NRC has responsibility and authonty under the (This secuan is modified and adopted as reviewed the language quoted and, with At mic Energy Act of 19M. soMy as i 192.33) the exception of the runsdictional resards uramum mill tailings sites and ii. Subpart C; concems discussed m the following have no broader connotation. section believes it te be factually The Commission believes that 40 CR 264.111 Closure performance correct and a fair representation of the standard - licensee proposals for altematives can issues addressed, (This secuon is adopted as part of be an important and effective way to II. Commission Authority and p ea w t. p@ms anocad i 192.32(bl(11)
*"SubP "" K:
ResPWIbility with implementing the new EPA standards. The Commission expects that 40 CFR 264.221 Design and operstmg Section 84c.of the Atomic Enersy Act states that: A Licensee may propose it may require several years to have its requirements for surface impoundments alternatives to specific requirements conformmg regulations fully in place. It adopted and enforced by the expects to use the flexibility provided is e non 1(is niodified and adopted as Commission under this act. Such by section 84-in the intenm to consider ll, and approve altemative proposals from
,,NRC's responsibilities under alternative proposals may take into account local or regional conditions. 1 censees. Secuan 84c. provides NRC UMTRCA are to implement EPA s meluding geology, topography. sufficient authonty to mdependently .
standard and to " *
- insure that the hydrology and meteoroiogy. The apprm anemaum so long as the management of any byproduct Commission may treat such alternatives Commission can make the requtred matenal * *
- a carnmi out in sus h a as sausfymg Commission requ:rements determmation.
manner as * *
- conforms to general requirements established by the if the Commission determmes that such alternatives will achieve a level of III. !ssues for Public Commenta Commission, with the concurrence of the~ stabilizauon and contamment of the The NRC requests public comment on Admmistrator, which are. to the maximum extent practicable, at least sites concerned. and a level of the general question of how best to protection for public health, safety. and proceed to fulfillits responsibilities comparable to requirements apphcable the environment from radiological and to the possession, transfer. and disposa! under the Atomic Energy Act. with of similar hazardous matenal regulated nonradiological hazards associated with resoect to establishmg SWDA.
such sites. which is equivalent to. to the comparable requirements for the by the Admimstrator under the SWDA. as amended.' EPA will insure that NRC's extent pracucable, or more stnngent management of mill tailings. to the regulanons satisfy these admomtions than the level which would be achieved maximum extent practicable. In this through its concurrence role. Relevant by standards and requirements adopted and enforced by the Commission for the context. comments are requested on SWDA regulations are those embedded same purpose and any final standards choices and decisions the NRC must in Suboarts A (except Sect on M.31. B. promulgated by the Admtmstrator of the make concernmg issues and acuons that C. D. E. F. C. H. and K. Examples of Environmental Protection Agency in are withm its discretion. Comments on areas which NRC must address m accordance with secuen 275. the basic value, validity. lawfulness or discharemg these responsibilities appropnateness of the EPA's SWDA The Commission histonca!!y has had mvolve functions under the six secuans the authonty and responsibility to regulations. the SWDA. or the UMTRCA listed immediately above which are regulate the activities of persons are not requested. incorporated mto these EPA standards, hcensed under the Atomic Energy Act of Jt t _ _ _ . . _ _ . _ _ . _ _ _ . _ . . _ . _ ______..__._d
eggs
. Fodseal Restistae / Wol 49. No. ?.28 / M:nd:y. November 28. 1964 / Proposed Rules A. Tentouve NRCApproochfor Ground & Issues and Questions Weter Prosecuon (8) How detailed should NRC's The NRC seeks public input with regulations be, and what should and The NRC has developed a tentative respect to all aspects of the question of should net be required in areas such as approach to place SWDA comparable how best to fulfill its responsibi!2nes well construction. sampling end sample requirements in its regulations. based on under secnon 2*3 and 84 of the Atonuc analysis, determmacons of annual plannmg and development efforts Energy Act of 1954. as amended. for average and seasonal background cenductec to date. This approach is protecnon of ground water. The NRC concentranons. minimum detecnon tentanve. and is made a part of this also seeks public comment with respect evels. statistical treatment of data and public armouncement so efforts spent in to the followmg issues and questions (In etermmanons of statisucally providing public cornment might be providmg public comment. commenters significant differences, recorckeeping better ided" It in I th are requested to provide the basis in and repornng, quality assurance. etc.?
develo ment of add nons to NRC fact for any opimons offered or (9) To what extent must the NRC regulations feither a block insert at the assernons made): provtda supporting environmental end of 10 CFR Part 40 or perhaps by (1) Should the SWDA-comparable impact analyses considenng the nature creation of a new part 41) which would requirements to be placed in NRC of the requirements tmder censideration. contain the ennte set of SWDA- regulations be explicitly restated to some of which have already been comparable requirements. precisely dupbcate EPA's language. or imposed by EPA and are effect:ye?!f The additions would be organized in should substanuve requirements be supporting enviromental evaluations are paraphrased? needed for SWDA-comparable rule terms of design. operanng, closure. and post closure requirements. and wo (2) Should all of Subpart F be changes except for the requirements the fullest extent feasible. be aplete com,uld to included? What should not be meluded? already imposed by the EPA. should the i statement of the requirements without (3) What should be included in a NRC continue to proceed with only a ' listmg of hazardous consutuents for mill smale rulemakina to establish a complete reference to EPA requirements in Title tailings to replace the 375-item long list set of SWDA. comparable requirements? 40 of the Code of Federal Regulations. !n m Appendix Vill to 40 CFR Part :81 (10)la the flexibility cited in the this way, the requirements could be stated in a self-contamed, unified referenced in 40 CFR 264.93? Should proposed addition to the Introduction of constituents not usually present or not Appendix A 10 CFR Part 40 suff!cient or marmer in one place. Coverage would present above trace levels be mcluded? should the NRC develop and support include at lessa the SWDA requirements What entena should be applied to additional modifications to conform to already imposed by EPA (40 CFR decide what constituents saould be the physical stability sepects of the EPA 264.92-94. 264.100. 264.111. and 264.221). mcluded? standard? and appropnate portions of the SWDA (4) The NRC must establish SWDA-requirements mennoned by the EPA comparable requirements to the Ilst of Subjects in le CFR Part 40 exphcitly as " examples of areas which maximum extent practicable. In this Gover:: ment contracts. Hazardous NRC must address"(these mclude 40 context. what is practicable given matenal-transportation. Nuclear CFR 264.95-99. 264.117. 264.228. and current practice and the current state of matenals. Penalty. Reporting and 264.2:8). technology? recordkeepmg requirements. Source The rulemaimg being constdered for (5) Should NRC retain the basic matenal and Uramum. proposal by the NRC may mc!ude most sequence embodied m Subpart F where Dared at Washmston. DC. this 1ath day of of Subpart F (40 CFR 264.90.-100). due to licensees who detect ground water Novemoer 1984. the close reianonship and contammation progress through a For the Nuclear Regulatory Commasenon. mtatoependency of the separate graduated scale of action. from Samuel I. Chilk. provtstons. and because all but 40 CFR detection monitoring, through 5,ce, tory ,f:3, comaumon. mgg Applicabdity."is eitherimposed compliance momtonng. and on to % _., %, or mentioned as an example by the EPA. correchve action. wuh sigmScant Mme - coes nee.o.m The remamder of the EPA's SWDA delays allowed between steps while J. . . a d K wo d deve oped. reviewed. and i piemented? Would it be advisable. practicable or 10 CFR Pstts 50 and 55 be reviewed in developing a proposal to determme wiuca of those requirements appropnate to require, for example. that Operator's Licenses and Conforming would need to be incorporated m NRC all NRC licensees have approved Amendment regulations to establish NRC compliance monitonng programs that requirements wnich are to the maximum are automancally scuvated and Acancy: Nuclear Regulatory irnplemented when needed? Commission. extent practicable. at least comparable to the EPA s SWDA requtrements for (6) Should the basic SWDA scheme acview: Proposed rule. for the timmg and duranon of a similar hazardous matenal. In developmg this proposal the NRC .* compliance" penod. a " closure" penod. suasasany: The Nuclear Regulatory and a " post closure care" pened be Commission is proposmg to amend its would distmguisa between substantive maintamed? What modifications, requirements and EPA's procedural regulations to (1) clanfy the regulations deletions. additions should be made? for the issuance of licenses to operators pernuttmg requirements because it does (7) To what extent. how. and under and semor operators:(:) revise the not bebeve the UMTRCA mandate what conditions should leak detection requirements and scope of wntten requires the NRC to adopt an1 portion of systems under single-liner examinanons and operating tests for the procecural permittmg aspects of impoundments be allowed to fulfill the EPA's regulations. The NRC's operators and semor operators. regmrements for a detection maturonng includmg a requirement for a simulation estabhshed procedures for licensmq. program that otherwise requires a inspecnon. and enforcement would be fac:lity: (3) codify procedures for the monitonng wellin the uppermost admmistranon of recualificauon used with respect to implementauon. aquifer? exammanons: and (4) descnbe the form l r
1 APPENDIX B - Comments Docket No. Commenter
- 1. Getty Mining Company
- 2. Ecology / Alert
- 3. Sierra Club
- 4. U.S. Department of the Interior
- 5. Texas Department of Health
- 6. Washington Cepartment of Social and Health Services
- 7. Dawn Mining Ccmpany
- 8. Environmental Defense Fund
- 9. Kerr-McGee Corporation, Xerr-McGee Chemical Corporation, and Quivira Mining Company
- 10. Environmental Policy Institute
- 11. New Mexico Environmental Improvement Division
- 12. Homestake Mining Company
- 13. American Mining Congress t
- 14. Colorado Department of Health
- 15. U.S. Environmental Protection Agency
- 16. Tennessee Valley Authority l
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Q ss eme ke) 0IC.VT.*.i3 ,. Get:y %ning Cc.' cany l C. Scx '900. Saa we OW. '.;;an 54:c7. Te!eccene (30*) 253 3350 L --- -
~
n=nm O. Wicxa. Mancger, Coerenens .nc ingrneenng, Ocmasne .wner=:s
.d .
e : .. Sectamaer 20, 1984 . r. . Sec stary O. S. Nuclear Regulatory C mission Wasningt:n, D.C. 20555 Attantion: Docketing and Servica Branch
Dear Sir:
Getty Mining Ccmoany hereby sucmits its c::nnents in rescanse to the Nuclear Regulatory Ccmission's announced plans w ine:recrata in its regulations, portions of the EPA 40 CFR, Part 254, Succarts F and X rules. Getty Mining Company, througn its sussidiary, the Perrot mics Ccmoany, is a uranium producar anc will be affec.ad by these NRC actions. In general, we believe that the NRC should make revisiens as " i necassary to de E?A Solid Wasta 01ssosal Act regulations in arter to
- mpte tner w ..' Lily amrltemple ::2 ur2ntimr W1 tailings. Tners are-encugn significant dif"erencas between mill tailings and ha:arcous was a to justify major revisions of the acclicsole SWDA recuirements. The larce volume and relatively low t xicity of, uranium mill tailings are not reflected in :ne cur ent SWDA regulations. The nature of 2e licuid
. fraction of uranium mill tailings and the geology of most of the tailings y sitas is suca that the contaminants are ranidly attenuated in the subsur'aca, thus minimi::ing me cancarn for significant degracation of ; ground water. In addition, the volume ano pnysical caaractaristics of ce tailings precluce the possibility of effectively =molying with the SWCA recuirements of removing, dec:ntaminating er dewataring me wastas curing the closure period.
We are precosing that the NRC c::nsicer the f'oilcwing changes to the SWDA regulaticns befort incar; crating them within the bocy of the NRC
= regulations:
e , , .
=.
I c1 3
; 2-C 254.91 Recuir-d Paecrims -
s 8 f E The wording of 254.91(3-) should be changed to reflect the
. o r provision of 40 CFR 192.32 (a)(2)(iv) allcwing a 500 meter buffer =ne
$$ ar und a tailings facility in whien c:ntaminant c:ncantrations may.excaec' I t
hi C3 > the concantration limitations. 5= hl
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254.92 Greund Water e-e:actien standare This standard should also be revised to reflect the provision of l CFR 192.32 facility. (a)(2)(iv) allowing a 500 :netar buffer ::ne around a tailings l , 254.93 Ha:ardous Constituents i The full list of 375 hazardous c:nstituents found in Aapendix ' II of Part 251 should be cropped. It contains hundreds of c:nstituents totally foreign to urani'un mill tailings. It snould be replacad by a new k list specifically anolicable to uranium mill tailings. This new list l should be compiled following an NRC s udy of the chemistry of each active tailings deposit including.the relative toxicity of the c:ntaminants and relative environmental risk posed by taese c:ntaminants. The list snould then include only those constituents escable of posing a suostantial present or potential hazard to human health or ne environment. 254.94 Concent stion Limits
~
Taoie 1 snould be revised to eliminata the organic c:mmounds c::rnntly listed. .. 254.98 Detec-ion %nitorine The indicator parameters now listad in 254.98(a) include total organic caroon and total organic halogen wnica are not significant - c:ntaminants derived from uranium aill tailings. They snould, :nerefore,
; . be droppen.
The current recuirement of 254.98(h)(2) and (3) to sample for all Accendix VIII constituents is unouly burdensome and should be creepen. Eacn tailings cecesit is unioue anc predic.anie in its potential contaminants wnica are controlled by the ors chemistry and milling precass. Thus each owner or operat:r should only be recuired to sammie i and analy:e for those c:ntaminants wnica are potentially present based upon are chemistry and the milling precess applicable to taat coeration. w 254.99 C mo11ance Nnitorine 7 Referenca to the current Accendix VIII list shoukd be droceed frca 254.9g(f) and replaced with woruing reflecting our c:enent for 254.98 above. S O e . 9 Y
~ _ - . , __ _ _ _ _ _ _ _ - _ _ _ . _ _ _ _ _ _ _ _ _ _ . -_ _. _ _ ______ _ ______ -. _
. 3 254.100 Car tetive actien 2-ecrim The requirement of 254.100(e) that hazardous c:nstituents founo outside of the comolianca point snould be removed or treated in placa snould be drooned. New wording snould reflect the 500 meter buffer :ene c:ncaat of 40 CFR 192.22(a)(2)(iv). New wording snould also allow for the natural attanuation of contaminants in the subsur'aca. Corrective action should also allow the construction of man-made flow or chemical reaction barriers wnich would c:ntain the contaminants to a limitad area.
254.111 Closed Perdermance Criteria The wording of 254.111(b) should be changed to reflect the EPA
- standards allowing limited release of contaminants from uranium mill tailings to the ground water within a 500 matar buffer :ene and to the at:nosanere througn a properly cesigned and constructad earth cover.
254.117 Post Closure Care
- This entire rule snould not acoly due to cur ent NRC rules wnica estaclisn feoeral government c:ntrol over.closec uranium mill tailings factTitTes.
254.221 Desien and coeratine Recui nments The requirement of 254.221(a) that liners must prevent seenage to unoerlying soil is unreasonaale and snould be deleted. The relatively non-toxic cnaractaristics of uranium sill tailings cosmined with the typical deposit's large volume anc thiczness maxe such a standard unwar-rantec ana unacnievable. The standard should reflect a goal of preventing pollution of ground water and surdacs water and rec:gni:e that the at.anuative properties of a thick vadose :ene uncerlying a tailings facility incer-porating seenage limiting liners c:uld protect ground water cuality. Realistically, a typical tailings facility placas susn extremes of weignt loading ana hycraulic head on a liner for long time perioos
- ! that some seenage througn a liner is likely s oc
- ur. This occur enca will, in most cases, not lead to a significant thnat to human health due to the reratively low toxicity of the seenage c:nmined with the usual remota location of uranium zilling operations.
I l e q y< e e = o. e 1
254.223 Cicsure and Dest-Clesur. Car. The recuirement of 254.22S(a)(1) :nat the regulated wastas be removed facility andor snould decontaminatac cannot acoly to any uranium mill tailings be orooped.- The requirement of 254.223(a)(2) that the regulated wastas be de-watared or solidified cannot reasonably be achieved with uranium mill tailings and should be dropped. Tailings are heterogeneous decosits of sand and slime (clay) ( wnich dewater very slowly by seepage to the underlying soils and evaco-transpiration to the atmosonere. Other than decanting all surface water frem the tailings, little can be done to accalerate the dewataring process. If the tailings contain significant quantities of slime, their c:nsolidated permeaaility will be so low as to preclude artificial crainage by underlying drains or by wells. The requirements imosed by the EPA and MRC u limit saecage with liners and limit racen emissions with a thick earth cover further reouca the sain natural dewatering processes for tailings. If the regulatory priority of these agsncies is
' to encaosulata the tailings, then the recuirement for dewataring the ~
tailings is a cross-purposa and snould be droopec. In summary, if the NRC has concluded that it :nust establish SWOA-c:scarable requirements to the maximum extant possible, then we believe tnat the basic regulatory program esmodied in Subpart F can be utilized. However, significant enanges in these SWDA rules must be made by the NRC ( to make them soecifically ang11 cable a uranium mill tailings. As our foregoing comments indicata, we think that there is acequata justification for sucn a revision precass. Thank you for your emnsideration of these c:enents. Sinc =-ely, b _ cg i 12Mk p _D. WICXS Manager of Coerations and Engineering, Comestic Minerals FUW/BWB:Im1 e 9 e
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46 418DMCI 7 ti. gn;,, . GMMEffMG & SEavict 3.uNcH Gentlemen = 3efore ccccenting on the proposed regulations, a few emerks on the devious, carocue language used in the NHC's notices. (The Iclicy Statement in Ncv 15 Federal Register - re : develo p-ment of a pilot Integrated Safety Assessment 2rog- am - was a particular beauty. And we'd love to see a pho to of the pixy' who drafted that c u e .' ) It seems fairly obvious this is a device to disecuraae pu'elic co=cenz. 3ut has the NHC conside red how much ti=e, money and paper might be saved by its staff, and the peop le who must read and econly qno, with the regua f ons, if the language we e simplified? 3xacele: Criterion 1 presently reads," I: selecting amongi alter-natives tailings dipposal sites o,r judging the adecuacy of existing tailings sites, the following site featu es, wi.ich will de te rmine the exten; tc wcich a progra =eets the broad objective of isc-s % 'n
- ',e lating the tailings and associated centa=icants frc= man and the
(( envi ::=ent for 10C0 years, the reaf ter, withcu t c going active
>M =ain tenance shall be cen=ide ed. . . "
n .
;9 g Si=p lified example: "2:22maism:magsamesg=a Site selection for
': g. ; disposal of tailings shall incorporate the follcwing features, - .e s4 (4 to isolate tailings and their contaminants frem man and the 2 envirencent for 1000 years, while avoiding the need for ongoing N active maintenance...* S5010703:3 841229
- PDR PR Y
g sO y 40 49FR44418 FDR , h Cur cc= cents en the proposed ules: Js ]N 1 - I 's gr2tifying Oc ear: :ne 221 ha s ruled that all cualities ,, D% p of g cund water scall be kept free o f contae 1::a icn. 2, An cid d,panish( ?) prove rb saya, " Con't ruddy the water. Some rs g4 IO day, ye u say have to drink it.' 1he viidem cf -his was bcr: e o ut so=e 3 cr 1 years age, duri.c nu o -ee , ) g ur~ W by ennf..w= ..,. 2 _ __ _
/
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2 2 a local water shcriage, w he.. .we o -uz. c -' 1s _, t an d ni pe d Sp .. treated =inewate- o .4.s esiden;3, - .
, , ,"e cue stt cr' ""ue ,cophole Permitted
. closing o' a 4-~ C.-4 a .. en o, r, : g, ae'ings site.
- -=
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.M e.,.,ective fd= 1000
,asonably ach 4 avabl a " ="d 4" *"v
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If ani:ient .bmats could build aquec. u*a*s operation af ter mor. -, ,
*ha*. an still in Spain) why can't 8, a Se govia, cur o .- m ew .
1000-year safety standarS? e at least a
.h :
the rock cover of a closed d ' - to encase 4. w.4 h slab s o ., ro ck we d -w e*i,- E * *-, l ' 'C ' feasible
' *- 8 5 ng each?
3 - The Co emission asks 4 -' shculd dele te 0"- recuire=ents 'c" design feature s whie"w ~,av m d* '7 p*e scriptive e necessary to
=eet D A standards. ,
In view of the far-reaching consequene.s o<- <8 4, uM at one ' o f the se disne sa.' a 4 .e s, we sugge s'* **ha
- not be pruden;. Me' outting would J
A few e xtra 33 millions scen** de d s 8 w- rough job could we-- ~ save 33 bi 4 ons .4 n cleanut, an d he a*'
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g , ,,,,, Secretary U.S. Nuclear Regulatory Commission W ahington D.C., 20555 Atta: Docketing and Service 3 ranch D gg g 1717 H St..NW, Room 1121 CFr c! : 4.,,.., . q Ret DMI'fp;"$ $'$f}f:, N 10 CTR Part 40, Uranium Mill Taillag Regulations: Conforming NRC Requirements to ZPA Standards, 49 Fed. Reg. 228, 11/16/S,4, pp. 46418 ff., and Uranium Min Tailings Regulations: Groundwater Protection and. Cther ssues, 49 Fed. Reg. 228, 11/26/84, pp. 464:5 ff. , To Whom it May Concern, Enclosed please find the comuments of the Sierra Club concerning -le above-captioned Federal Register notice. P.L. 97-415, The Nuclear Regulaccry commission Author 1=ation Act for fiscal years 1982 and 1983, reunired the Commission to conform its regulations for active uranium milling sites with the general standards issued by the Ettvironmental Protection Agency on or before Oc . 1, 1963.
"he by theNRCAct,conforming changes were to be, final, under the schedula dictated within 6 months of ZPA's promulgation.
Clearly, the proposed changes listed in the Federal Register, combined with the ANFR of de same date, fail to meet -he o requirements laid down by Congress for NRC conformance. Instead of proposing and promulgating conforming changes. within the statutory time period, the C mmission has, almost to months late, proposed a restricted set of conforming changes, while leaving the more important question of compliance with EPA's groundwater four years to requirements complete. to a future rulemaking which may take up to
- he sierra Club believes this proposed procedure to be '"---I and unwsse, as won as insufficient for the purposes of the Uranium .C1 l Tan ings Radiation Control Act (UprfacA), as ===adad by 7.L. 97-415. As l
won as coatssplating an indefinies delay oot envisioned, and in fact erpressly rejected, by the Congressional conferees, the commission's ANFR, maintains that the Commission has authority to anow 2e waiver of any.'or an environmental standards under Section 84(c) of the Atomic Energy Act. We believe dis to be a sisin*.arpretation of the intent of Congress in amending :PrJacA. 7he Conference Report on P.L. 97-415, 5. Rept. 97-484, clearly grants the "m ssion de authority, upon application by a licensee, to an ow variances to its own specific
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*Thett we try to mes sut anvthmq av :tsed. we nna :t hatened to evervtning etse :n the universe.* Jostar s # ar Nauonas Hencauarterr !30 Susa Street. San F ancace. California 94108 (41!) 961 4634 /
requirements, vn11e also requiring that any such variances be all wed only i- . hey result in a level of protecacn equivalent to cat se:leved by the standards of d e 0-- _ssten pursuant = the final standards of the DA.
?.is '.anguage dces not, in our view, :=ntemplata de pret. sten of variances, by the Cesumission, for the IPA sandards themselves.
par-J cularly as such standards, including the groundwater protection requirements included from the Solid Wasta Disposal Ac , are adopted pursuant to specific Congressional directive elsewhere in OMTRCA.
"he ANPR also contemplates C=aunission implementation of this waiver authority without any requi.wt for the concurrence of the Mainistrator, in direct violation of the Agency's final standards and 1 s statutory responsibilities under CNf3CA and the SECA. Again, this proposal seems itself at variance with the consistent intention of Congress in this mat.ar.
Sincerely, h eere%- t- 4 1 3 6 % -
/ 3 rooks 3. Teaser b Washington Representative e S O
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Dear Sir:
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Cmfeming NEC Requirements to EPA Standards, whichl 1984, issue of the Federal Reester. , i eensideratim. The fonowing ecmments are offered for your We note that annual site inspections are to be concuetad by the governme remmmy ultimate custody of a site where taiHngs x wastes are stored (p. 46425). It would be useful to indicate wnat provisions will be made to ensure that properly loc monitwing wells will be kept in condition to permit accurate got checks of ground-water quanty insoeetion during the or monitoring annual would continue. e periodic site insoections and how long any post-:losure Cur esponses to the cummered questions (p. 46423) are as tonows: (1) We behave that appropriate suestantive recuirements of the Solid Waste Discosal (SWDA) to be placed in the NRC regulations should be parapnased to apply directly mill ta1 Hogs situation. This snould avoid emfusam with the ncn- sppliesole portions. (2) Anybe snould of iMnM the suostantive portions of Stepart F pertaming to ground-water protectio Items referring to the disposal and/or use of other types of solid waste snould not be inehaded. De section on concentration amits mignt be omitted, if the purpose is to aHow zero disenerge to ground water, that is, to require maintenance of preproject ground-water < quality. 3 i (3) The Esdag of hazardous constituents should include those toxic w hazardous matersals rerweented in more then trace amounts in the taiHags and radiomettve constituents exceeding the Envronmental Frotection Agency's accepted max 2ma.We suggest that the selection of items fe the list of hazardous emstituents should be based on records types of mma==; ofleechstes from taiHngs, analysis of teachacle constituents found may be dhs g.J and withreview=mn,s of hazardous matar:als used in processmg, some of wnien ' (4)1t of surraWia- is practiceals Iands. to estaclish the hydrogeological enaractaristics of a tailings site and
- It is also practiomole to determine setenuation propert
- es of site rocks and sediments- particularly fe toxic, hazardous, and radioactive constituents.
e Ground-wate meitwing can se planned, conannted, and interpreted usmg estantisned praetzes. Dese fundamental elements of current teennology snould be retamed in ceveloping SWDA-eomparacle recunements fx urmmm min talHngs. ddN i
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See stary 2 (5) NRC IIcenses should have accreved i automaticaHy activated and implemented compliance menitcring preg ams that are wnen needed. The requrement of the gracuated scale of action suen as that stimulated in Su:: cart ? would provice a go from using merely a detection program,.for corrective action; at the l pmparation of a contingency plan for possible future cerective act construction of a disposal site ami in effective execution of corrective action. (6) T ! p eriod,SWDA basic and a "scheme for the post-elosure care" timingpeiedand dumtion should oe of a 'ecmpHance" period, a " clo modification natum of the wastes. of time periocs to cope with differences in disposal procedures i period from taiHags. of 30 years may not be appropriata fx some constitu (7) Properly designed and maintained leek-detection systems under single-impoundments should fulfD1 the requirements fe a detectien-mcmitming s
~fracture thicx section permemointy of underlymg that natural .ock x sediments has so little inter Tranular e leachates is effectively zero. migration of radionuclides e chemical constituents of (8) NRC's regulations should be sufficiently detailed concerning weH construct ensure that aH mcsiitzing wells are cased in a manner that ensures the integrity of th borenole and the weH casmg is sealed aoove the sampl of the sample, and that truly representative samples can be cotained from the a (9) We believe that SWDA-comparacle a single requ2rements. rulemakmg would he advisable to establisn a complete A single environmental impact analysis could then evaluata estabilsned previously the potential fx impacts that mignt result from any sucstarttial changes from recurements.
(10) We have no coniment egardi.N this. Sincerely,
* [f&,',
FruceDirectorfli'a Blanenard W2N' Environmental Project Review e e
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Secietary w _ u r* ~~~ ' U. S. Nuclear Regulatory Sc=1:sien 4-Ea / C a m ----
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qL -. A~"'l : Occxeting anc 3ertice 3rseca Oear 51.-: Tnanx you for :he copor. uni:7 Oc :=mmen:
?se: 40 . egarcing uranium mil'. tai!.ings. en :ne precosed :nanges :o 10 OTR Qntr L . ave eviewed :ne documen: anc Offer Staff Of :ne Sureau of Raciati:n censideration: :ne f:1;cwing acaments for
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i) n :ne ? ;csec Mccif t:sti:ns anc 3at Registar .ctice, :ne ;reposec :nange :i:nale see:icn of ne .r ecersl
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~1 was acted Mac .o enanges were pr0;osed Oc incluce :Me ';oint of
- melianced in :Me amenced PJies. 'ias in:.s intencec Oy :ne
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Our Nuclear : mmentsRegulatory areQa=issien limitec :nly c :nc:e :nanges vi:nt.. ne discretion :( :ne ('IRC).
- nstraec as inci: sting our agreemen 7 st:n ese since Me pr
- caments snouls no: te essentially we nave :ne same ;rt::lems anc . eserrae:posec :nanges; to ?O '~1.?se: 40 as we do accu: .cas accu: :ne amencments
'.I?A) requi. ements in 40 !?R ?sr: :ne 192.
Environmental ? ::act:.:n Agency's scre ser.cus diffi:ulties :y furtner amend =ents to *]Tae!?R .1RC may te sole :o remedy ne
?ar:
incut on :ne en items :en:ainec in :ne Acvancec flo:1:e :f ? Ocesec00 f=11: wing 3ulenax:.ng 'AllPO f:e Jetnium Mill a:.;ings Regula:1 ns; 3r:unewater
? rete :::n anc : ner 'ssues.
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Secretary
?sge 2 January 't, 1985
.tegarding the Ad?R, we nave 13e fali wing ::=ments:
A. We ::ncur that a ingle unified 36t of NRC regulati Ss, incerpcriting acaparacle/ is appropetate. referenced ;crtions cf the Solid Waste tsposal Act (SVDA),
- 3. :ssues and Questions -
(1) The IWDA-sce;4racle sucstantive requirements snuuld te p araparased. (2)
.he entire Sucpart ? snou14 to includet f:r :ne fai;dwing ressen:
Gecuncvater protec:icn can be c:nsider*4 acatevaste if, ty
;redi::1ve sedeling er calculations based upon test resulta, it csn
- nsngesbe snown will no: wi:n 31;= ;recapility :nat enemical or esciological Occur in scils, sunseils, surf ace watar, or groundwater beyond :ne disposal ;r:perty for it least 200 years.
Oh is unnecessarily ;ronititive to state :nac :nere 4: 11 to
':sro" erseacility teneata an ispeundment. This require =ent 13 unacr.ievaole w1:h ;resen: ' state of :ne art" =aterials f:r the required periods of ise. A desiracle test (n would provide j sufficient distance :etueen :ne impoundsen: and grounewater or
;reperty line to it:enuate and/or retart contastaant f*.:w
e '.c ci t y.
This is acntsved by careful stusy of geol:gy, j 17drol gy, 0 pcgr3pny, seemer;nclagy, and :11:at:1:gy as well ts Omni:=ents a scacific engineering designs. The inclusion of l Su: ! Cart 7 in its entirety ensures necessary f;stitiLL:7 :: :ne l regulatory autnerity := impose mere er less res:rtet;va sensures, as requi. ed :4 acnteve environmental ;rstec ten. 13) Ment:cring Appencia 7! fer all of :ne 375 na:srtcus constituents :ntainec in to 40 773 251 is unnecessary. Onif inese expectec i to be acove acpendeo a 10 rsce levels 073 20 shoul: te inci:atec in a sa:arste tis-(note sece prevision a i 1 accameca:e varying ursnius ree:very precasses) .y :e necessary to I
- ) 'Jsing state-of-cne-ar: geopnysical ex;ierscian cetteds in
- njunction W1:n : sputer =cceling, tae pr:tec:: n affe.-te? ty
'One IWOA-comparacle requirements prSposed by :ne I?1 say is l
l l l . l . I L. -
1 Secretary .
?sge 3 '
January 11, 1985 transcended by proper pond placement, constructica, and design. We feel insecure relying of groundwater ;rotection. en a synthetic liner as a primary'seans (5) It is appropriate to have an approved, automati: ally activated and implemented compliance monitoring ;r gram in place. (5) No input is offered on this questien. (7) Considering repairing the expense involved and the infeasibility of a synthect liner under volumes of ails, we doubt : hat an undercrsin leak detectien system would ever be appropriate. We also feel that artificial ;enetrations to aquifers, snien could ;rovide for contamination sigration, snould te used only wnere to be aaquifer contamination is determined, by ecmputer scdeling, possibility.
-(3)
The areas discussed would be ore appropriately addressed in an NRC Regulaccry Guide estner nan in the regulations. (9) i We douot that better supporting enviremmental impact analyses for
- ne SiDA-concaraDie rules can te ; reduced. The dccument prepared
. by the IPA (EPA 520/1-53-008) is as good as any, since some of the requirements, such as syntheti: pond liners as a ;ri=ary standare, are unsu por:331e. (Nota: As requested in the ANPR, weacpeceriatenessd or are not commenting on "the basic value, validity, lawfulness,
- ( 40 OfR 192.)
(10) No input is offered :n :nis question. If you have any questions regarcing these ::cments, please :entact us.
?:ur druly, f,,,
avis I. Lacxer, Chief 3ureau of Radiat :n Control
- Mr. :enald A. Nusseaumer Office of State Programs
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- .i-DE?ARTMENT Of SOCAL AND HE ALTH SERVICE 5 .-_
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wI O . .. -. Donalc A. Nussbaumer DK&dN &'%- MM Assisunt Director for ~ - O Sute Agreements Program / Office of Sute Programs U.S. Nuclear Regulatory Cor=ission Wasnington, D.C. 20555 m W
Dear N..r. Nussbaumer:
I ac transmitting a copy of the comments mace oy Mr. Joe 5:enr, Uranium .'till Program Manacer concerning :ne preocsec rule to amenc NRC regulations to c:nform = EP A 40 CFR 192 s ancar:s anc. ne acvancec notice of proposed rule car.ing :ealing witn grouncwater protect:en provisiens. Tne cerr.ents recre-ser.: ce ce:artment's posi ticn in regar:s = :ne spec 1fic cnan;es procesec. Sincerely, i, m Nancy P.i Virner, Sucerviser
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m u a e.,.. . -- ,s DEP .RTMENT Of SOGAL AND HE ALTH SERVICES en, .: n e c... --t January 10, 1985 TO: Nancy Kirner, Supervisor Waste Management Unit ' FROM: Joe Stohr, ManagerN Uranium Mill Program
SUBJECT:
CONFORMING NRC REGULATIONS TO 40 CFR 192 STANDARD In the NRCs December 10, 1984, letter to Wasning:cn from Donald Nussbaumer,
- ne NRC proposes to amenc its current regulations governing One disposal of uranium byprocuct material to conform existing NRC regulations to EPA's 40 CFR 192 S tancard. In :ne same letter, an advance notice of proposed rule-making is also issued which deals witn :ne ground water protection provi-sions of tne proposec 40 CFR 192 Stancarc.
Subtitle Part I,- subparts 0 and E of a0 CFR 192 are accressec in :ne firs:
- art of :nese proposec changes. The affec ed cornissicn regulations are con ainec in 10 CFR 40 Appencix A. Inis prc:osal consists of mocifica-ions
-not recuiring E?A concurrence anc inc:racration of E? A recuirements no:
- erivec from tne Solic Waste Oisposal Act (SWCA). Tne ner.-SW; A provisions
- ensicerec incluce requirements to:
(1) actere to a0 CFR 190, - (2) acnere to 40 CFR a40, (3) maintain racen releases curing operation as low as ;ractica:le, (a) close disposal areas to provice reasonacle assurance of effective con rol for 1,000 years anc at leas: 200 years, (5) limit post closure releases of racen to less tnan 20 picocuries per scuare meter seconc, (6) set limits for resicual radium lef t in soil above :ackgrounc in on-si a areas no sucject to closure requirements. Y.y only tecnni cal c:mmen accu: :nese enanges is na: I feel it is imoor:an: for :ne NRC anc agreement sta as to maintain ne abili y to review anc ac;r:ve si te s ecific alternatives := s tancarcs wi nou: :ne concurrence :f
- ne Environmental Protection Agency. Tne NRC nas receivec au ncr1:3:icn :
- er dorr in n1s manner f r:c :ne A::mi: Energy Ac of 1954 This acili y
-ill allow f:r increasec eguia cry ef#i::ency, a cecrease in :ne :veria: :f reg.la :ry au ncr;;y, an: a :::ing f ;eneri: s ancar:s : ei:r si e
- issure .f :'i:1 er: f re e;s:1:: i an; f:r :ne ::r r:! :f :.: ::.:-
~1*Erials.
Nancy Kirner, Supervisor January 10, 1955 Page Two.
- Aceitional comments:
- In criterion 4 0, of page a6422, delete ne werc " ney" because the sentence makes no sense witn the word in it.
- In criterion 5, third paragrapn,12:a line, page 46423, change " filer" to " filler" to correct a typograpnical error.
Subtitle Part II: My comments on :ne acvance notice of proposed rule making wnica deals with groundwater protection provisions will address the 10 specific areas identified by tne NRC.
- 1. The S'dDA comoarable requirements that are to be placed in NRC regulations shoulc be paraohrased to conform witn existing regula-tory language, especially in areas wnere: E?A concurrence is ciscussec, decisions of :ne regional acministrator, facility permits, na:arccus constituents, er ne compliance perioc are men ti oned.
- 2. Subcar: F sncule no: contain references to lanc treatment units, lanc fill, exem;; ions to ne owner or cperator uncer 264.90, cr references to :ne regional acministrator.
- 3. Tne lis of. na:arcous constituents sncuic incluce :nly : nose i ems
- a we can reascnaciy assume may te present in concentrations tna present a octantial negative 1.m:act. Pernaos taese items snoulc De relis ac to incluce not only scme of :ne na:arccus c:ns-ituents, but also :ne ;er-inen raciaisotopes for ne devel-osment of one complete its .
- a. Specific areas of :ne SWDA wnere practicability may coce into questien include:
- a. The acility to monitor all 375 na:arecus c:ns-ituents in a timely manner.
- 3. Recuirements of a :rrective action program,
- c. The detail of information necessary for ne issuance of si e scecific exem;; ions to Solic was e Disposal Ac grounc water monitoring recuirements.
- 5. Tne :ast: secuence in su: ar ? secuic ce cocifiec :: allow :ne use of exis-ing m:ni : ring pr: grams :o :ne maximum extent prac 1:-
a:le in o:n :ne :e:e:-ten ment cring anc c:c:liance cont oring
- nases. *n gere-al. ne :asic secuence in su::ar F srcul ref'ec-tr e #10: :Ta *T.t e are : e ex*s:*5; gr u c aa:!r m fi *:r* ;
- :; ars tra : e e t-e ::ans f:r e 21'.ir;s *r :u :~eP::.
Nancy Kirner, Supervisor January 10, 1985 Page Three 6. The NRC snculd continue to estaclish recuirer. ants for post-closure care in a manner tnat will minimi:e reliance on active maintenance 7. The snouldusebeof lef: a leak detection system under a single liner impoundment to the discretion of tne NRC and agreement states af op titer on.review of site specific data indicate this is a possible 8. Specific guidance on all items mentioned exists in the regulatory literature. The NRC's regulations should continue to allow for site specific requirements to be implemented by license condition by the NRC and agreement states.
- 9. No comment.
10. Flexibility cited in the proposed accition snould ce sufficient. JS:kg
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agos3 s R\lli g y cAWN MINING CcMP ANY $* ' $ $ N $
.o. sox :s some. wa sa.nectcre sects January 24, 1985 N e. $ R.
~C :a.9 Secretary-Docketing and Service Branch ,
U.S. Nuclear Regulatory Commission ~ Washington, D. C. 20555 ,
Dear Sir / Madam:
Included are comments of Dawn Mining Company on the Nuclear Regulatory Commission's (NRC) Advanced Notice of Proposed Rulemaking published at 49 FR 46425-46429 on November 26, 1984 intended to incorporate groundwater protection provisions and other Environmental Protection Agency (EPA) requirements into NRC regulations, as required by provisions of the Tailings Radiation Uranium Mill Control Act. The specific- provisions established by the advanced notice includes those requirements established (SWDA), as amended, under Subtitle C of the Solid Waste Disposal Act selected by the EPA for application to uranium and thorium mill tailings. The NRC specifically is interested in conforming 40 CFR Segtions the 264.92-94, 264.100, 264.111, and 264.221 required under SWDA for application to uranium and thorium tailings. Groundwater
- equirements protection provided through compliance with hese is afforded by identification of ha:ardous constituen:s present in the tailings, defining concent:stion limits for each constituent selected, providisq for design and implementa: ion of a corrective action program in the even that hazardous constituents begin escaping from the waste disposal area, defining design and operating requirements for new disposal facilities to preclude the- release. of harmful constituents outside the disposal area, and to define closure performance to preserve present and future uses of the groundwater aquifers near the waste impo undmen t . The SWDA standards imposed by the EPA in its rule published October 7, 1982 (48 FR 45926) and consistent e with the SWDA standards EPA published for hazardous wastes (47 FR '
o S a$ 32274-32288, July 26, 1982) define a dual standard for tailings impoundments, including. . ."(1) A " primary" standard tha:
$ .o
. requires use of a liner designed to prevent migra: ion of
, ff hazardous substances out of the impoundment, and (2) a N o " secondary" groundwater protection standard requiring, in effect, o E that any ha:ardous consti:uents that leak from :he waste not be Qj- allowed to degrade g cundwater. The primary standard applies to N e new cortions of new c: existing wasta deposi: cries. The
$$e CC
- seconI:lary standard applies to new and existing porziens, the point of compliance being at the edge of :ne waste :mpoundment."
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The NRC, Ac (AEA) allows under for authority licensees of Section 34c of the Atomic Ener:y to propose alternatives to specific requirements
-local or regional conditions, adopted by the NRC taking into account hydrology, and meteorology. including geology, . topography, proposed measures to satisfy The NRC thei:
will consider alternatively requirements "if Commission determines that the of stabili=ation and containment such alternatives of the sites will achieve aand concerned, levela level of protection 'for public health, environment- from radiological safety, and the and non-radiological hazards associated with such sites, which is equivalent to the extent practicable, or more stringent than the level ~ which would be achievend the Commissionby standardsfor the and purpose. same requirements" adopted and enforced by the . . Dawn strongly supports conceptof specificity embodied in the AEA Section-the uranium tailings 84c due to the site r Howevet, impoundments nationwide. if uranium and thorium milling operations are faced with RCRA groundwater protection standards, the relief provided by AEA Section 84c will be grossly inadequate. in all cases, ba forced to These operations will, propose thei: own alternative requirements, thereby shifting the burden of development from the NRC to each facility under its purview.r egula tory regulatory Dawn believes this to be true due to the nature of the development process leading up to the promulgation of the Part 264. These regulations were designed to be applicable to type ' numerous types of wastes and envi:enmental settings. Every of lantfills, from facility, from organic chem,ical manufacture to municipal solvent recyclers to dry. cleaners, are covered under wastes. the scope However, of these regulations if they handle ha:ardous regulations, and was one industry has been exempted from these not considered during the regulatory development process; that is, the mining industry. In fact, when the inapplicability of many mining operations was brought to the EPA's attention, thei: of the components of these rules to response was of ten that mining was exempted from the regulations and our concerns were therefore not germane. Since there was no i attempt and mining to make the regulations address the milling, NRC's adoption of problems specific to the requirements in j substantially that each regulated the same form as they cur:ently exist will mean facility will have to suomit alternative requirements. its own Congress has recognized that the RCRA regulations were written to address to broad universe of hazardous waste disposal activities, industry. and may not The RCRA Reauthori:ation of fit the specific needs of the mining 1984 has given EPA i authority to write regulations for mining wastes which differ fromsuch of its current wastes, regulations, due to "the special characteristics the practical difficulties implementation associated with of such requirements, and characteristics, site-specific including but not limited to the climate, geology, hydrology, and soil chemis :y a: the site, so long as suen modified requi:ements assure protection of human heal:h and the environment." The burden of developing these :equirements rests with :he agency, and should not be snifted :o the :egulated community. 2
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Having dwelled upon the general application of the SWDA requirements to uranium and thorium tailings i=poundments, we now turn to specific application of the SWDA requirements which could not stand direct transferral to the NRC conformance standards. Part 264 l Section 93 and 94. Hazardous Constituents and Concentration Limits, i These sections as written identify the hatardous constituents listed in Appendix VIII of Part 261 to be met under Section 264.92, the groundwater protection standard, the concentration limits for each. constituent, and allows for exclusion of some constituents if the constituent "is not capable of posing a substantial present or potential hazard to hu=an health or ene environment." (40 CFR i 264.94 (b) ) (emphasis added) . 264-93 (b) and Among the considerations for adverse ef f ects upon groundwater quality include "(iv) the proximity and withdrawal rates of groundwater users; and (v) the current and future uses of groundwater in the area." (40 C7R 264.93(b)). Dawn emphasize basically agrees with this section as written but wishes to the importance of (iv) and (v) to the general remoteness of active western U.S. uranium mill impoundments. tailings A relaxation due to lengthy distances f:cm the tailings site to the nearest potential groundwater user is ~ t definitely in order because a facility may be able to demonstrate, based upon its unique site-specific characteristics, that a plume of contamination exceeding safe levels will pose no dangers once the groundwater reaches a point of withdrawal (e.g., because of attenuation, dilution, or treatment of the contaminants). Additionally, the current and future uses of groundwater in the area in question must be adequately assessed in light of current and projected population growth rates for the immediate area. In the likely event that the mill areas are not expected to be high growth areas causing great demand for the withdrawal of groundwater, such an aquifer need not be protected to its highest quality. Section 95. Point of C moliance. Dawn vehemently objects to the point of compliance defined in this section as being "a vertical surface located at the hydraulically downgradient limit of the waste management area that ex-tends down into the . uppermost aquifer area" to include "hori:ontal space taken up by any liner, dike, or other barrier designed to contain waste in a regulated unit." The choice of said point of compliance at this location is ill-advised and overly restrictive. It does not allow for any natural dilution or attenuation of ha:ardous constituents in the leacnate, nor does it consider the fact that as long as a plume of 1 l l l 2
m _. - contamination is wholly beneath lands owned by a facility, it is ef fectively prohibited from af fecting the public health. The NRC
! was given responsibility under Section 13 of the NRC Authori=ation Act of 1982 and 1983 (1983 Amendments) to issue regulations conforming its management, design, and engineering requirements to EPA's standards of general application for the protection 'of public health. EPA's. jurisdiction should begin at the property boundary of the facility leaving on-site management responsibility to the NRC such that overlapping regulatory burdens are not imposed upon the licensees. In accordance with this, the NRC must allow . f or a modification of the groundwater
, protection standard at any point between the waste management area and the facility's property boundary, so long as that point is so situated that any necessary corrective action that may be required under 40 CFR 2674.100 may be undertaken before the groundwater discharges to- surface areas or crosses the owner / operator's . property line. The permit writer could determine at the time of permit issuance whether the compliance point desired by the owner / operator is permissible under this standard. Adoption of this flexible compliance point concept is in keeping with Section 2 of Executive order 12291 in that EPA will have accomplished its goal of health and environmental protection in a manner that is~less costly to industry. In summation, the Atomic Energy Act Section 84c mandate allowing for the NRC to consider alternatives to EPA S*dD A standards proposed by uranium and thorium mill owner / operators in their tailings disposal program does not go far enough. It is the responsibility of the regulating agency to determine the appropriate measures to saf eguard . the environment. Section 84c should be used to allow a facility to~ propose alternate measures to those which the NRC has determined to be specifically applicable to the facilities under its jurisdiction. Dawn believes that by rewriting EPA's regulations to give adequate consideration to the specific concerns of the mining / milling industry, and to include such site-specific factors as the NRC i can regulate licensees such that the EPA's health and environmental protection goals will be adequately met without imposing overly restrictive economic burdens upon the uranium and thorium industries. J l Dawn wishes to express appreciation for the opportunity to i comment on NRC's advanced notice of proposed rulemaking regarding
- ne conformance of NRC groundwater protection standard to EPA's i active site standards for uranium and thorium milling facilities l and 'thanks the NRC for considering our concerns.
Sincerely, , . i \
/
akIOf&, M l Marcel F. DeGuire Vice ?:esident and Manager MFD /dh 4
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'EX?RESS MAI*
Secretary U.S. Nuclear Regulatory Commission Room 1121 1717 H Street, N.W. " ' ' - Washington, D.C. 20555 Attn: Occketing & Service Branch Re: Advance notice of proposed rulemaking for further amendments to the Commission's uranium mill tailings regulations (49 Fed. Reg. 46425) Oear Sir or Madam: Cn November 25, 1984, the Nuclear Regulatory Commissica published notices in the Federal Register seeking public cc= men: en (a) proposed rules to conform the Commission's mill :silings regulations to standards issued by the Environmental Prctection Agency (EPA) and (b) an advance notice of proposed rulemaking for further amendments to the Commission's regulations. 49 Fed. Reg. 46413,.46425 (Nov. 26, 1985). "he advance notice of proposed rulemaking principally involved conformance of the Commissien's recuirements for protection of ground water resources to the standards issued by EPA pursuant to section 275(b) cf the At=mic Energy Act of 19 5 4, 4 2 U.S.C. 5 20 2 2( b ) (1982). Chis letter represents :ne Environmental Cefense Fund's (IDF) comments on the suc ects embraced cy the advance actice of prepcsed rulemaking. 405 Vaoanoe wenue Somdef. C.storaco 30002 3031 440-490 t CPCIS lN. NEW YcRX. W !Nationas Headouarterst 'NASHINGTCN. OC SERKEL..Y. C.k .t!C*1McND. VA: 3cLL ER CO I D D M ... #
1. The EPA standards were published on Cetober 7, 1983 (48 Fed. Reg. 45926) and became effective on Cecember 6, 1992. 4 at 45947. As a result, uranium mill licensees are required to manage byproduct materials so as to conform to he ground water protection standards of 40 C.F.R. 5 26 4.9 2. 48 Fed. Reg. 45 9 47 (to be codified at 40 C.F.R. 5 19 2.3 2(a)( 2)). Similarly, the EPA standards require that uranium mill licensees have detection monitoring programs in place within one year of promulgation (or in other words, by October 7, 1984). The Commission previously has taken the position that these provisions are self-executing and that they must be implemented by the Commission and agreement states. For example, a Commission program directive concerning ground water detection monitoring states that the 40 C.F.R. Pirt 192 requirements " apply directly to MRC licenses activities and must be implemented by NRC in its licensing program." Similarly, the Commission's Office of Execu-tive Legal Director concluded that *(blecause the EPA standards have the force and effect of law cn December 6, 1982, that be-comes the date on which compliance activities should commence." (Che memoranda from which these quotes were taken are attached as Exhibit A.] Neither the Commission's proposed rule nor its advance no-tice of propcsed rulemaking adverts directly to the licensees' duty to implement ' the EPA ground water protection standards and detection monitoring program. In the interest of clarity, the Commission should reiterate (in the context of this rulemaking) that :hese EPA standards have che force and ef f ect of law and that licensees must assure that their operations comply with m
these recirements.
- . The IPA standards explicitly state that exemptions of hacardous constituents under 40 C.F.R. 5 26 4.9 2(b) and (c), and alternative concentration limits under 40 C.F.2. 5 264.94(b) and (c) "shall not be eff ective until EPA has concurred therein." 48 Fed. Reg. 45 947 (to be codified at 40 C.F.R. 5 19 2.3 2(a)(2)(v)).
EPA correctly viewed such decisions as an integral part of its statutory responsibility to set standards for protection of human health, safety, and the environment from both radiolcgical and nonradiological hacards . associated with uranium mill tailings. EPA also appropriately concluded that it could not lawfully delegate its duty to set healtn and environmental protection standards to the Commission. 48 Fed. Reg. 45941 c.3. Nevertheless, the Commission apparsntly believes that EPA concurrence is not a necessary predicate to exempting hacardous constituents or setting alternative concentration limits. 49 Fed. Reg. 46 427 c.3. The Commission cites section 34(c) of the Atomic Energy Act of ~ 954 to support its assertion that it has discretion to review and approve site-specific alternatives to standards promulgated by EPA and the Commission. The Commis-sion's construction of the law will not withstand careful analysis. Section 8 4(c) of the Atomic Energy Act, 4 2 U.S.C. 5 2114 (c), 1 permits licensees 'to propose to the Commission alternative means l for achieveing the Commission's specific engineering .and design requirements. The statute manifestly does not authorite the t Commission to entertain alternatt.ves or variances to the under- I lying, generally applicaole EPA standards. Indeed, as EOF pointed i l
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out in its January 9 comments on the Commission's proposed rules for conforming its uranium mill requirements Oc the IPA standards,
- ne statutory language could : not be clearer.
The statute provides that the licensee may propose alterna-tives to Commission requirements. 4 2 U.S.C. 5 2114(c). And it provides that the Commission may sanction such alternatives if the Commission finds that the alternative is equally effective in protecting public health as the Commisisen requirements and the IPA standards. In other words, a careful parsing of the statute reveals that Congress intended to accord licensees some latitude in complying with the Commission's detailed, site-specific require-ments, so lone as the alternative - satisfies the IPA standards for protection of human health and the environment. The statute decidedly can not be construed to permit Commission-sanctioned departures from the underlying IPA standards. 3. The Commission requested comments from the public on whether it should delete or modify certain prescriptive require-ments for specific design features. Those requirements include minimi:ation of upstream drainage, mandatory vegetative or rock covers, rock armoring, and so on. The Commission specifically requested comment on whether criterion 3 (mandating that below grade disposal be considered the prime option) should be deleted or modified. The Commission's notice does not explain why these basic engineering and design requirements would not be necessary :o construction of a mill tailings impoundment capaole of meeting tte I2A standards. Indeed, those prescriptive requirements 4
l appear to be precisely the kind of detailed engineering require-ments that the Commission is charged with develeping in erder :o provide reasonable assurance that controls will meet, for example, the longevity and raden emanation standards. Therefore, mcdifi-cations of these prescriptive requirements wculd be inappropriate.
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Moreover, these prescriptive requirements play an important role in the Commission's comprehensive regulatory regime for protecting human health and the environment. For example, place-ment of a la*fer of coarse gravel or crushed rock over a tailings cover decreases wind erosion and allows infiltration of watar. Riprap is applied-to surfaces that are subject to potentially severe erosional forces, since it stabilizes tailings ambankments and overburden cover. Nuclear Regulatory Commission, 1 Generic Environmental Imoact Statement on Cranium Milline 8-13 (sect. 1980) (hereinafter cited as GZIS). Both a rock layer and riprap play an important role in stacilizing covers for the long ter=. Similarly, minimizing upstream rainfall catchment areas is integral o prevention of erosion and gullying of the cover and emoank-ment. _I_d. a t 9 -~3 8 t o 9 - 3 9. 3elow grade, staged disposal has emerged as the state-of-the-art technology for disposal of uranium mill tailings. Selow grade disposal will shield the dry tailings area from wind ero-sion and will significantly reduce ene amount of tailings dust. Environmental Protecnica Agency,1 Final Environmental Imeact Statement f r Standards for the Centrol c{ 3vereduct Materials from Uranium Ore Precessine 7-6 (Sept. 1983)(hereinaf ter cited as Active sites). 3elow grade dispcsal, in comoination vi:n staged e
disposal, results in a very high-(grea er chan ninety-five percent) level of radon control. Id. a: 7-12. And finally, below grade disposal greatly reduces the chance of misuse by humans for thousands of v. ears. Id. at 10-10. The benefits of a below grade, staged disposal system are substantial, and can be achieved at reasonable cost. GEIS at
- 15. Documents prepared in conjunction with planning for-the proposed Swanson Uranium Project in Virginia confirm the feasibi-lity and advantages of such an approach. Baker, el al. , *he .
Swanson Uranium Proiect (attached as Exhibit 3). EPA's analysis of health risks attributable to radon exposure from that proposed project are revealing, especially when compared to exposures attributable to an average uranium mill in the West. For example, EPA found that during the proposed mills operational phase, the mill tailings wculd emit up to 400 Ci/ year of radon, while the average western mill would generate 4400 Ci/ year. (That dispar-ity is, in substantial part, due to the' fact that no more than ten acres of the tailings surf ace area would be exposed to the environment at any one time.) The contrast during the post-operational period is even more dramatic: 0.04 Ci/ year as com-pared to 7000 Ci/ year. Letter from Glen Sjoblem (EPA) to Mary Spain (April 12, 1984) (attached as Exhibit C). In short, below grade disposal is an important element of the regulatory program for protecting human health and safety. There is no warrant for modifying this, or any of the other prescriptive requirements, wnich are essential parts of the regulatory strategy for long-term disposal of uranium mill 6
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- silings. 1
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- 4. The Commission specifically sought public comment on ;
whether leak.detecticn systems under single-liner impoundments I should be allowed to fulfill the requirements for a detection monitoring program that otherwise requires a monitoring well in the uppermost aquifer. Providing an exemption from ground water monitoring for systems with a leak detection program is a bad s idea for several reasons. First, EPA concedes that liners sometimes fail. While design requirements are intended to prevent or minimi:e the formation and migration of loachate into underlying strata, ground water monitoring and response requirements ensure that licensees detect and remedy ground water contamination. Thus, the secondary ground water standard was imposed to limi: the consequences of a breach in the liner. 48 Fed. Reg. 45 9 41 c.2. An exemqtion f cm g cund water monitoring would materially weaken the effectiveness of sucn an approach and clearly is not justified. Second, leak detection systems are not fail proof. For example, a malfunction in the electrical sensing device would disable the only mechanism available for alerting the licensee of a liner failure.1/ The consequences of eliminating ground water monitoring
- l. The pedigree of this proposal is highly suspect. When it issued its regulations for ha:ardous waste management systems in 1982, EPA decided,to grant an exemption from ground water monitor-ing for operators that installed a double liner along with a leak detection system. 47 Fed. Reg. 32274, 32316 (July 26, 1982).
The congressional reaction was swif t and unambiguous. In section 203 of the Hazardous and Solid Wasta Amendments of 1984, Congress explicitly mandated that ground water moni cring be required at landfills, surface impoundments, and waste piles, wnether or not two liners and a leacnate collection system had been installed. See H.R. No. 9 8-113 3, 9 8 th Cong. 2d Sess.14-lf (19 8 4 ) . Since IPA has concluded :nat the cnaracteristics of milling wastes do 7
k 1 could be severe if .the leak detection system malfunctions. If a breach occurs, :ners w 11 be no =ecnanism :c alert :he licensee and :ne regulatory agencies := :he problem. Given the lack of experience in (esigning, installing, and operating leak detection systems, and the paucity of data available on the long-term s performance of such systems, an exemption from ground water monitoring would be imprudent. j 5. Instead of providing an exemption from ground water monitoring, the Commission should take advantage of advances in the technology of vadese :ene monitoring to redefine the "com-i p11ance point" at which ground water monitoring must be conducted. The point of compliance--essentially a vertical surfaca at the border of the waste management area, perpendicular to the ground
, water gradient and extending below the water table--may be ade- ) quate for activities on the relatively small scale of most ha:ard-ous wasta sites. Ecwever, for operations as large as mill tail-ings-disposal facilities, it is likely to be insufficient.
In essence, the definition of the point of cc=pliance as a monitoring surface that will protect the ground water from contam-ination makes sense only if its is assumed that seepage cecurs I unifermly from the bottom (and inclined sides) of the disposal uni:. In such cases, the seepage pattern (in two dimensions) (footnote 1, continued) .ot 2 justify a regulatory approach diffe-rent from that which obtains for other ha:ardous wastes, 45 Fed. Reg. 33173-75 (May 19, 1980), there is no basis for the Ccmmis-sion to permi: an exemption from ground water monit= ring for licensees that install a doucle-lined system, mucn less for those wne install only a single liner. 1 4 3
appears as a truncated umbrella and thus the flow from the disposal una: is likely to intercap: the ecmpliance surface befora reacn-Ing the water table. :f, on the other hand, seepage is the result of a hol,e or holes in a synthetic liner, cracks in a liner i of natural materials, or fractures in underlying rock, the pattern will be different and a contaminant plume will not be detected by monitoring at the edge of the disposal unit. At the time it issued its regulations under the Solid Waste Disposal Act, EPA stated that monitoring below ha:ardous waste disposal units is impracticable because of the problems asso-ciated with installing inclined wells. 47 Fed. Reg. 32299. However, it is feasible to monitor below disposal areas if moni-coring is designed in conjunction with a staged :silings disposal program (i.e., sequential filling of discrece trenches or cells). With such a disposal program, monitoring wells could be placed i i between the trenches or along the borders of each cell. As staged disposal occurs, monitoring wells in the incarior of the i disposal area would provide information on what is happening beneath the larger area, if not directly beneath the individual trenches or cells. Such a monitoring network would give an early warning of seepage into the vadese :ene in sufficient time to initiate a remedial action program before contamination of the ground water. , Inherent in EPA's definition of the compliance point (40
- C.F.R. 5:64.35) is hat the vadese :ene will be seriously concam-ansted before che leachate plume is detected. There is no justi-4 ficaticn for sucn a policy. Techniques for moni:oring in the
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t 4
vadoso :eno aro developing rapidly and recent studies conducted for EPA report the reliacility and capacilities of such techniques. see. e.:. , L. Iverant, 7adese zone Moni:crine concaces for Ha:ar-dous Waste SL:ss, Gr=und Water Vol. .0, No. 3 (1982). See also
- 3. Stephens, Fidid Wasta Movement Thrcuch :ne Vadose Zone (1981) (attached as Exhibit D); P. Longmine & 3. Gallaher, Geolo-escal, Geochemical. and Hydroloeical Criteria for Discosal of.
Ha:ardous Waste ijl New Mexico (1981)(attached as Exhibit I); L. Wilson, Monitorine in the Vadose Zone (General Electric Co.). 7adose zone monitoring techniques make possible a regulatory regime that defines the compliance point as a hori: ental boundary beneath the waste site but above the uppermost aquifer. :: will permit detection of a contaminant plume before it contaminates the vadose :ene and reaches the water table, and therefore deserves to be examined by the Commission.
- 6. There is abundant evidence of offsite ground water contamination from existing mill tailings ponds. In fact, IPA concedes that all existing unlined tailings ponds have contaminated ground water beyond the edge of the impoundment. 48 Ted. Reg. 45 9 41 c.2. For example, at one si:e contamination f cm tallings has been detected in ground water 1.3 miles from the ponds. Active sites at 3-11. Molybdenum, which EPA added to its list of hazardous, constituents because of the element's toxicity and mobility, was measured at concentrations fif teen times background. 11. at 0-12. At another site, arsenic contamination has been detected up to ;900 feet from the tallings conds. Id. at 0-13.
10
Appendix A to these comments sumari:es the evidence of ground water contamination :nat has occured from unlined tailings ponds. This evidence is compelling and necessitates prompt action by the permitting agency. Cne useful step forward would be :o require all lic'ensees with an operational, unlined tailings pond to prepare a compliance monitoring program that would be automa-tically activated if and when needed. In addition, however, the Commission must establish a prog-ran for addressing contamination from existing tailings ponds, as well as from new impondments. The IPA regulations for ha:ardous waste disposal sites provide a strong base upon which the Commis-sion can build. First, the Commission should require installa-tion of a detection ' monitoring program at all uranium mill tal-lings disposal sites. It is particularly important to establish a background value for each monitoring parameter or constituent in the facility permit. Second, if the comparison between the data at the compliance point and background values shows that a statistically significant increase has occured, the Commission should presume that a disposal uni is leaking. Ac that point,
- he Commission regulations should require that the licensee institute a compliance monitoring program unless the licensee can demonstrate that the ground water contamination has been caused by a source outside of its control. The compliance monitoring program should, among other things, mandate sampling to determine background values for all hazardous constituents at the compliance point. Third, if the sampling program indicates a statistically significant increase over a concentration limi , the Commission should require that the licensee immediately initises a correc-L1
tive actica program.' / The regulatory scheme outlined in the preceding paragraph tracks ne approach adopted by I?A in subpart ? cf 40 C.F.R. Part 264. Subpart F, constitutes a systematic program for detecting and responding to ground water contamination. 2t makes little sense for the Commission to duplicate the work that EPA has done in this area. And incorporation of subpart F into the Commis-sion's requirements is provided for by section 34(a)(3) of the Atomic Energy Act. However, the Commission should supplement EPA's regulations in one crucial respect. All of the available evidence indicates that many existing unlined tailings ponds are leaking and that offsite contamination has occured at a number of those sites. That leakage will continue if licensees continue to deposi: tailings in those units. The Commission should specify that if corrective action does not abate the seepage of contaminants from the impoundment within two years of the program's initiation, the licensee must cease deposition of tailings in that uni: and must either install a liner in situ or remove the tailings to a lined unit.
- 2. Commission regulations should require the clean-up of the entire contaminant plume, regardless of whether the plume has migrated beyond the mill property boundary. The contamination poses a greater threat to human health and the environment once L: has moved of fsite than while 1: is restricted to the sucsur-f ace area witnin the f acility coundaries.
em
We appreciate this opportunity to comment on the Commission's approacn -for conforming its 2:anium mill licensing requirements to the IPA standards. We strongly urge that :ne Commission =ove expeditiously to implement the IPA standards and to protect human health and the environment from the nonradiolo-gical hazards associated with uranium mill tailings. Respectfully submitted,
?' . Mir%c 5-W James 3 Sheff Attorney
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URANIUM MILL TAILING ) RIGULATICNS: GROUNDWA*IR ADVANCD NCT:CI CI ?RCPCSC
) RU*N ING: 1C C.I.R. Part 4C PRC*IC"!CN AND C.r.rx ISSUIS ) -
)
CCMMIN*S 3Y *CERR-McCII CCR?CRAT:CN KIRR-McGII N ICAL CORPCRACICN, AND CU 7 IRA MINING COMPANY "hese comments address issues raised in the Advanced Notice of ?roposed Rulemaking (e.e " Notice') published at 49 Fed. Reg. 46425 (November 25, 1984) with respect Oc the Uranium Mill Tailings Regulations of the Nuclear Requiancry Commission ("NRC"), 1C C.I.R. Part 4C, App. A.
- hey are submitted on behalf of Kerr-McGee Corporation and its sub-sidiaries Kerr-McGee~ Chemical Cor;. oration and Quiv:ra Mining Company.
*hese entities will hereinafter be referrsd Oc collectively as "Kerr-McGee."
Quivira Mining Company owns and opera:as mines and a uranium mill at Ambrosia I,ake, New Mexico. Kerr-McGee Chemical Cor;. oration owns a former thorium and rare ear hs process:.nq facility in West Chicago, Illinois. A final closure plan for the West Chicago facility is currently under consideration by he NRC. "he NRC regulations in 10 C.I.R. Par. 4C, App. A, and any fore. coming =odification Oc or supplements:1on of those regula::.ons vili affect activities at be c. the A=nresia ~.ake and West Chicago facilities.
a - _ _ =-
. 2-
.ev~. _ :e_ . e. -._- ..e.
. _ . e. _ . ~ w re.
~he pte r:1gatien of regula:icas applicable to the disposition of uranium tailings and associated wastes a:
licensed cccmercial processing sites und'er de Uraniun Mill Tailings Radiation Control Act ("UM'"2CA") has. involved exten-sive previous administrative action. Two previcus rulemaking proceedings, one by the NRC and one by de Invironmental Protection Agency ("I?A"), have been completed at de adminis-trative level and are currently undergoing judicial review in de United States Court of Appeals for .he '"enth Circuit. 2 Kerr-McGee has submitted a full set of comments concerning dose regulations to both de NRC and the I?A and is a par y Oc the judicial review proceeding v12 regard Oc .he NRC criteria. Kerr-McGee ..o submitted ce=ments in connection with the NRC's sus}.snt., -
! por.icns of the criteria.
Additionally, on Febr ' . , 1985 Kerr-McGee submitted l comments on the NRC's ?.cpesed Amendments Oc 10 C.I.R. Pa.. 40 App. A (Uranium Mill "'ailings Regulations: Confor=ing NRC Requirements :: I?A Standards) that vers published at 49 Ted. Reg. 46418 (November 25, '.9 84 ) . Because they are particularly relevant Oc the issues raised in the Notice, a copy of chose > Ishruary 11 comments are included with this submission as r Attachment 1. i i i 1 1 American Mining Congress v. Nuclear Regulatory Oc= mission, i No. 3C-227*. American Mining 0 ngress v. Invarec= ental Prctection Agency, (*.0th Cir.) (pending before -he court e,Ln banc); i No. 33-2005 and consc11 dated cases (*.0th Cir.). l
.~ - . _ . . _ _ . _ . . - . , _ , _ _ _ . _ . . _ _ _ . _ , _ _ . _ _ . _ . . _ . _ , . _ _ _ _ , . , . _ , , _ _ . _ . . . _ . . . _ _ _ _ . _ . _ _ _ _ , . . . _ _ _ . _ . . _ . . . _
I l_
-3 Kerr-McGee believes that its previously rumnittad
- =ments cer.cerning -le I?A standards and NRC Or:ta:tia vers and centinue to be valid and apply with egaal for s to -lis Notice. E= wever, we will not repeat those arguments here. -
Rather, e.ese comments are directec at e.e ten issues en.which the NRC specifically sought comment, see 49 Fed. Reg. at 46428, as well as certain overarching issues -lat m;s receive carsful attention in order to Oc assure that any NRC regulatic=s
- mply with LT"RCA and~are workable, technically scund, cost-effective, and appropriately protective c' -le public health, safety, and the environment.
GI:mL COMME:r"s - I.
"3E NRC MU3T CONICRM ITS RECULAT:CNE To LT"RCA, RA*"3ER "3AN TO INAPPRCPRIA'"E I?A fT"AICARDS.
- e NRC indicates in the No. ice -da: -le purpose of
-le pr: posed rulemaking would be to confor= NRC regula:1cas to cor lin standards for nonradiological ha:ards of =111 tailings that wrie promulgated by I?A, 48 Ted. Reg. 45925 (Cet. 7, ,
1983), cedified at 40 C.F.R. Par. 192, and to fulfill certain obligations of the NRC to provide guidance in the management of tailings, 42 U.S.C. I 2114. 49 Ted. Teq. at 46425. "e narr w issues on which the NRC seeks qu:. dance and comment, however, suggest that the NRC fundamentally nasconstrues -le nature of its =bligatiens in promulga :.nq :ules amder ',W"RCA. Osngress directed I?A to p::=ulgate generally applicable standards f:r nenradicl=g:. cal ha ards that ars consistant wi-2 -le standards f== such ha ards under -le Solid
1 1 4
..naste .,.ssposa., a,C: ( n n. .Onwnn).
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. in the NRO's words, I?A merely " selected previstens" fre= i s detailed preex s :ng regulaticas for chemical wastes "by cross-referencing" Shose SWCA requirements in its UMTRCA standards. 49 Fed. Reg. at 46426. I?A thus c ally ignored the fact that regulaticas devoleped under SWDA for icw-volume, high-:=xicity chemical wastes are in no way appropriate to hi gh-volume , icw-texicity tailings and associated wastes.
Moreover, I?A far exceeded the limits of its authority and ' intruded en the exclusive jurisdiction of the NRC to set detailed engineering requirements. As vill be seen, Congress gave the NRC censiderable - t flexibility in developing its regula: ices to c=rrect the I?A's error. But, ra 4er than proposing Oc use its flexibility to cc rect I?A's error, the NRC seeks input as to whether 1: > should incorporate the I?A rules in a word-for-word fashi:n or si= ply in paraphrase. See 49 Fed. Reg, at 46423 (:ssue-(l)). The NRC's failure to recognise its authority to depart from I?A's mistaken approach necessitates discussi:n no: only of the basis of that authcrity, but also of the evidence that I?A's regulations are predicated on an incorrect view of ' C ngress' intent. S.us , although the NRC has stated hat comments on the " appropriateness of the I?A's S~rCA regulations" were "not requested," 49 Ted. Reg. at 4642", the. is sue is inextricably interwoven with =atters bef=re -he NRC and aus: he addressed by the NRC i= advancing its own pr:pesals. 1 L r
1 i A. The Flavs in I?A's A =reacn one of the chief flaws in I?A's approach :: regula:- ing tailings and associated waste is I?A's failure := confern its standards to the requirements of section 275. '2 hat section provides that I?A's standards -
"shall provide for the protectics of human health and the environment consistent with the standards required under subtitle C cf the Solid Waste Disposal Act, as amended, which are applicable such hazards. . . ."
42 U.S.C. $ 2022(b)(2). By its plain terms, section 275 .
=andates that the I?A standards achieve a level of erotee:1cn that is consistant with the SWDA standards, not necessarily a standard-by-standard consistency.
The legislative history =akes it clear that Congress' use of language requiring censistent protection, rather than identical standards was a deliberate choice. Section 275(a)(3) of the bill that was passed initially by the House provided
. hat "actvithstanding any other provision of this Act.cr any other law," standards premulgated under Section 275 for "nenradiological ha:ards" had to "be c=nsistent vich, to the greates extent possible, the standards of the Solid Waste Oisposal Act applicable to such hanarde." 124 Cong. Rec.
E11364, 11369 (daily ed. Oct=her 3, 1978) (amphasis added).
"'he Senate, however, deleted this language and substituted in j its place the different language now found in the stature.
I?A's mechanical incorporation of its pre-existing SWCA i
- squiaticus is supper ed solely by .he statu: ry language -hat Congress explicitly rs2ected.
I
-s.
The leg slative hist:ry pr:vides clear guidance as s the type of SWCA standards tha: 0 ngress viewed as "appli-
=able."
The legislative history shows that, based in par en testimony by I?A witnesses at congressional hearings, Oc=gress expected I?A to regulate ha:ards frem uranium. mill tailings and associated wastes in a manner consistent with the treatment of similar material generated by other extraction industries, such as other mining and nineral processing wastes.1 In fact, at the time Congress was considering UMTRCA, I?A had preposed requiations that categorized such wastes as "special vastes" that required squiarcry trea ment different from chemical vastes. 43 Fed. Reg. 58991-92 (December 13, 1973). Congress ebviously envisioned that the then-ferthe ming regulati==s would be " applicable" to uranium mill tailings and associated wastes. When I?A reversed its earlier position and attempted L in its final regula:1=ns to eliminate the special vaste category, 45 Fed. Reg. 33C66, 33174 (May 19, 1980), Congress' i reaction was immediate. It prohibited I?A fr m applying its final ha:ardcus waste regula:1cns to 'sclid waste from the extraction, beneficiation, and processing of cres and minerals, including phosphate rock and everburden fr m the mining of uranium cre," 42 U.S.C. 5 6921(b)(3), pending completien of a See, e.:., Hearines en H.R.Uran um Mill Tailines 00ntrol Act Of 1973: 1;s98. H.R. 1 2 9. H.R. 1 938. H.R. '3C49. H.R. 122a2 and H.R. .
'365C 3efere the Su ::=m ::ee On Ener v and ?:ver 00mmerce, Of :ne Ecuse s c ~- -
C =m:::se :n :ntarstata and ?cre en q., 2d 5ess. 26d (Tas: =cny of I?A Caputy Assistan:
?
Administra::: Rowe), 4C1-02 (Tes: seny =f Alan Corsen, gram Manager fer I?A's Office of Solid Wastes) (197S). l
- =prehens ve study of : ning and ninerals pr: cessing wastes.
"hus, despite this unambiqueus h. story showing tha: 0:ngress d es not ntend that mining wastes be governed by regulat ons designed for chemical wastes, I?A incorporated its chemical waste standards in the UX"RCA standards. *he_ result, cf course, is an unworkable set of requirements that will impose unreasonable costs and burdens en the regulated c mmunity without a meaningful improvement of public health, safety, or the environment.
Finally, I?A vastly overstepped its authority and intruded impermissibly on NRC jurisdiction in promulgating its standards. For example, I?A's requirements relating to liners clearly operate within the hcundaries of mill sites, which centravenes _he division of authority between I?A and .he NRC.* Those provisions also constitute detailed engineering require-nents; the legislative history is clear, however, that Cong ssa intanded the imposition of detailed engineering requirements to be at the discretion of the NRC alone. 8 The fact that,I?A
't I?A has no: yet pr:mulgated valid SWCA regulations for i
extraction industry wastes, even though they were under :=n-sideration a: the time UMTRCA was passed. promulgate " applicable" standards does not I?A's failure to l justify I?A's blind incorporation of requirements for vastly differen: low-volume high-toxicity chemical wastes into its standards for uranium mill tailings and associated wastas. By failing to recognise this fact, I?A compounded -J:e error it had made in ignor.nq the distinc: en between ':=nsistent procacti n" anc 'ident cal 3tandards." 2 2086. See. e . e. , Recryanisati:n Plan No. 3 of 19~0, 34 Stat. 8 E.R. Rep. No. 148C, 5th Cong., 2d Sess. Par 1 at 15, Part 2 at 46 (1973).
3 has acted beycnd the secpe of'its authority in such ways is just one =cre reasen why the NRC shculd no incerporate I?A's standards in a wholesale and unquestioning fashien. 3. The NRC Should Use Its Statu: cry Discretion Oc Remedy, Not Ocmpound, I?A's Mistakes
- t is against a backdrop of I?A errer that the NRC
=ust pender its responsibilities under UMTRCA. := section S4, Congress dd-=-
ed'the NRC to:
" insure that the =anagement of any byproduct material . . .
conforms Oc ceneral require-ments . .
. which are, := the max:=um extent cracticable, at least ce=tarabie := (IPA]
requ rements applicable := . . . similar hazardous material regulated by the Acm:nis-trator [cf I?A) under the Solid Wasta Disposal - Act, as amended." 42 U . S . C . 5 2114 (emphasis added). :f I?A had ever adepred I apprcpriata regulatory requirements for similar ha:ardous
.natarial, the NRC might be justified in s:= ply repremulgating I the I?A regulations.
But, as it stands, the NRC not only has adequate authority under ' m CA to develop its own scre thcughtful approach, it affirmatively =ust de so to ec= port with the staturcry direction. Congress twice enacted language
-- ence in section 34 and once in section 275 -- requiring 1
agency censideration of the common-sense distinction between low-volume, high- cxicity chemical wastes and high-volume, ! Icw-texicity uranium :silings and associated wastes. I?A ignored the 'anguage directed Oc it: the NRC surely must nc: new d= the same.
9 m usAC. .,,,, J . .,. . n . ....
.-,!.e ... .e .
= w4 .-sJ.e .s
., a m.
SICNIFICANCI
=.=. ..n CF ANY - RISK 5 ACCRESSID AND o.=. . . . C .>Le =.. . = e .= . .. .e . .e. 0 w..C.=..a.
It is abundantly clear ca: the NRC vculd violate Congress' intent if it were to promulgate regulaticus without evaluating the significance of the risks those requlations addressed or weighing -le relationship be:veen the ces:s imposed and the benefits received. Congress specifically amended Section 84(a)(1) of the Ate =ic Energy Act to regaire 2e NRC, in fulfilling its =anagement responsibility for tai '.ings , to:
"tak[e] into acccun: de risk to the public health, safety, and the environment, v:. h due consideration of -le scenemic ces s and such other be appropr.factors as -le Cc==ission determines to ate."*
"'his amendment of the UM"'RCA sgaires NRC to promulgate l
regulations dat meet two distinc: regiirements. Firs: the 1 l explict: direction that de NRC "take into acccunt the. risk to
-le public health, safety, and de env.renmen " was intended l
1 := assure that any regulatory effort address only significant risks.: Second,' the regairemen: -hat de NRC give "due l 2. NRC Au-Acrization Act for fiscal years
-,-.e_3, - 1982 and 1983, 3 4 .*. ( a ) , C,6 s"'wa .. e~ ^w 6 , , .CSC. '
"'he Congressional purpose is revealed in the following coliceay between Senator Wallep and Senator Simpson:
"Mr. WA*.:.C? . . .
- is my understanding 2a:
I?A and NRC have sta:ad that -ley fel: (fOctnote cent'd)
consideratien of the ecencmi: : sts" was incanded := assure tha: the : s:s of the':riteria wculd bear a reascnable relatier.sh:p (footnote cont'd) compelled by the Mill Tailings Act to impose stringent requirements . . . irrespective of costs, because of language in the preamble to the 1978 Mill Tailing Act. From my reading of the applicable prevision, the 1978 ac: directed the agencias to take 'every reascnable effort ' necessary to protect public health. Implicit in that language is a direction to 1 exercise reasonable discretion. Have the amendment (sic] dispelled the =1sapprehension - of the agencies en this point?
"Mr. S!MPSCN. I say . . . that, in my best estimate, they have. . . . The agencies sheuld determine the risks associated v-11
!sici mail tallings and the significance of those risks. Thev snould also examine var ous recula:crv accroaches to deal with sienificant r sks that are icentified. . . .
Cn techn :al issues relating to the regulatien of mill tailings, I?A and NRC should both exercise reasonable judgment c= the appropriate course to ace:mplish the basic purpose ~ of the act, which is to erotect the cublic health and safs / frem unreasonacle risks." 12S Cong. Rec. S13C55-56 (daily ed. Cet. 1, 1982) (emphasis added). Indeed, there is a wealth of evidence that Congress intended NRC := make a threshold determina:1cn of significance before promulgating its criteria. See, e.g., 123 Cong. Rec.
$13293 (daily ed. Cet. 1, 1982) (statement of Sen. Schmitt) l I
( amendments " lay to rest . . . the position . . . that (offi-cials) are required, under the preamble to the Mill Tailings i Act, to impose certain kinds of centrols . . . regardless.cf risk"); 128 Ccng. Rec. ISC60 (daily ed. Dec. 9, 1982) (state-ment of Rep. Lujan) ("we decided to clarify our intent that the agencias regulate only significant risks"); 12S Cong. Rec. 3S816 (daily ed. Dec. 2, 1982) (remarks of Rep. Lujan) (" agencies must independently exer: se their best technical
;udgmen: . . .
to craft . . . to determine the risks involved in tailings and requirements designed to deal with those risks which are significan=").
1 _'1 -
- their benefits.1 Unless i: undertakes a ::=plete and thorcugh examina:L:n of -"= a-d for and applicability of I?A's regulatory approach, and ther,safter indecendently pronulgates regula:1cas crafted specifically for the control of uranium tailings and associated wastes, the NRC will have violated these congressional directives.
Cne direct and chvious consequence of these guiding principles is that any NRC regulations cannot apply a non-degradation standard to groundwater affected by tailings disposal. Any ~ requirement := protec: nenusab1'e water would act forestall a significant risk and would pose ecs:s withcut any commensurate benefits. Thus, the ultimate use of an affected aquifer shculd be evaluated and a standard developed which is censistent wi h .:he aquifer's use. Where an' aquifer contains water which is ne: potable, it is neither ces; effective nor sensible to procact the aquifer as if it were a pr stine water supply.
!!!. *EE.vNRC ., REGUIAT:CNS
., A . ,., R,., r MUST PRCV OE
- L- sI .a--.
The optimal meched for the stabilicatien of tailings i vill differ videly frc= site to site. This fac leads to the conclusien that the NRC's regulations should provide the See, e.e., 47, recrinted in E. 1982 Oc=f. U.S.Rep. No. 384, 97th 0:ng.3 'd sess. Cong. & Ad. News 2617 ("The con-ferees are ces s associated with . of the view tha: the econc=ic and enviren= ental requirements esta=lished by the agencies: should bear a reasonable relatzensh;p to the benefits expected he derived.")
flexibility := allow the adeption of site-specific approaches
- = c =pliance. Rerr-McGee urges -he NRC := achieve -his objective in two ways.
First, the NRC should assert its authority pursuan: to section 84(c) of the A =mic Energy Act .to approve variances frem all otherwise applicable standards, including the ground.irater requirements, where local or regional cceditions warrant a . different approach. I?A has at ti=es argued that the NRC's authority to approve alternatives is limited to regula: cry requirements imposed by the NRC itself.* There is, hewever, no support in the staturer/ language er the legislative history f== this view. Indeed, because the NRC interpretation comports with both the plain meaning of .he statute and the Congressional 3 intent := provide ample flexibility, the NRC should continue
- s exercise unilateral power Oc approve variances and alterna-tives.
As observed in the Notice, the Commission's authority extends to variances frem I?A standards as well as NRC require-ments, and concurrence from I?A is not necessary for the approval of any alternative. 49 Fed. Reg. at 46427. Second, the NRC should. draft its regulations to focus primarily c= goals, ebjectives, and standards, not en specific and rigid design er operating requirements. Only in his way can the NRC satisfy the Congressional inten: -hat a-1 See I?A Letter fr:m Allan Eirsch, Oirector of the Office of Feceral Activities, I?A, Oc the Hencrable Samuel Chi'k, Secretary, NRC (undated) ce= men ng on the NRC's recent proposed "h3 C\ regalations).
licensee be pe. itted to =ee: bas:.c standards for prc: action of heale., safety, and .he enviren=en: drcugh ces:-effective pre-grams tailored to de specific characteristics of a site. O.e regulations should not create presu=ptic=s in favor of parti-cular methods and require a licensee to preve. hat alternative methods are more desirable. := deed, a rigid approach would se:re only to increase costs unnecessarily and to create dis-incentives to the application of innovative or superior designs er practices.
- = particular, ce NRC's regulations should not specify regairements that are known to be often inapprcpriate.
"'he practical difficulties in de management of tailings are burdensome enough without de creation of regula: cry obstacles to de implementation of a sensible program. Secause he I?A SWDA standards impose rigid design and operating requirements, they shculd not previde the =cdel for de NRC pregram.
7,
"*EE NRC KICUI.AT:CNS MCST RECOGN!:I . . .
DI:::.xENCES 3E-' WEEN NEW ANC I'CSTING 3!"*ES. l When UM"'RCA was enacted in 1979, Congress explicitly instructed te NRC to "censider possible differences in applic-ability of . . . requirements to existing tailings sites rela-tive to new tailings sites."2 S.e subsequent enactment of Sec icn 84(c) represented a reinforcement of this requirement.8 2 l by Rep. ,4 Cong. Udall).Rec.See E12969 (daily ed. Oct. 14, 19-78) (statement also E.R. Rep. No. 1480 (?t. 2), 95th Cong., 2d Sess. 44 (1973); 3.n. Rep. No. 1480 (? . ;), 95th Cong., 2d Sess. 15 (1978). See 127 Cong. Rec. 5 1973 (daily ed. March 2c, 1982) l (statement by Sen. Singsen). t h r I
14 - To ::= ply with 21s aspect of its gcVerning
*.aw, _he NRC mus specify in any regulations ca: it pr==ulgates pursuant :: de Notice how d e regulatory regairements will differ from existing to new sites.
It is not sufficient to address this issue on a case-by-case basis through approval of licensme-initiated alternatives. Many of he relevant issues are generic in nature and net site-specific.2 It is the NRC's obligation to address such problems in its regulations, so dat bc h regulators and licensees have clear guidance as to how to proceed. RES?CNSE TO SPIC:F!C
. .e. s um .e Ra. . .e. . D 3v. =..=._-:, NRC
. .e.5Lw s!O . ,-
Should the S*dDA-comparable repairements to be placed in NRC regulaticas be explicitly restated to precisely duplicata I?A's language, or shculd substantive regairements be para-phrased? Rescense to !ssue No. 1 As is evident from the comments above, the NRC's regulations should neither paraphrase ner duplicata IPA's SWDA regairements. Rather, de NRC has both de statutory authority. and de statutory duty to undertake a corough examination of he need and tec% cal basis for each of the regairements -J:a 1
.Seme of t ese generic probisms, as cey relata to -he proposed Appendix A criteria, are discussed in Kerr-McGee's C:=ments on .he Proposed Amendments to 10 CIR Part 40, a:
*3-l~ (Feb. 11, 1985).
A copy of these : mments is included v:. _h .h'.s submission.
it proposes.
- n short, the NRC should develop regulations that are appropr: ate := high-volume, icw-::xicity uranium mill
, tailings and assoc ated wastes and that are necessary to protect hu: nan health, safety, ar2 the environment. "'hese regulations shculd address risks that are significant, should reflect a reasonable relationship between the ces:s of compliance.and any incremental increase in benefits, and should encourage innovative alternatives for disposal of tailings, particularly at existing sites.
. e S u,_ NC. n.
Shculd all of Subpart I be included? What should not be included? Restense to Issue Nc. 2: 4
! Subpart I of 40 CFR Par. 254 cf -le I?A regulations contains requirements for grcundwater monitoring and response programs f=r facilities that =anage chemical wastes. ?ey contain many requirements that are not appropriate for to uranium mill tailings.
i Indeed, in many cases, only the general subject matter of the EPA requiation is relevant and the substance will have to be changed in its entirsty. i Ier example, statistical tre.atment of gr=undwater j data by the Cochran's Approximatien to the Sahrens-Fisher Student's :-tast is not always.appr=priata for mill tailings. 1 see $ 154.97. I?A itself has recognised the problems with the i use of the Student's :-tes: in the detec:1cn of sta: stically k l t s' =-
~~' an- n ::arances be:Veen background and hydreicq cally l
l l l t
- m. .. , _ . . -_
4 downgradien wells.
- = a Neve=ber 30, '.983 Internal Guidance Me=crand = to the I?A Regiens, de Office of Solid Waste d'is-
, cussed he problem of " false positives." "'he memorandum observed hat dere is a high probability tha: the specified precedure will indicate possible centamination when ncne is present, and suggested an alternate procedure for analysis.1 One of the fundamental problems with de statistical procedures spec.fied~1s Subpart I is ca: 2ey ignore the most significant ce=ponent of variance, -le portion.ca arises from non-analytical variability. Such variabill:7 =ay result 4 from seasonal fluctuations in groundwater quality, fr:m sampling precedure, from variance in he time between sampling, or from analytical errors. Consisten: vi d I?A memcrandum, a i l report .crecared for the Chemical Manufacturers Associa:ica estimated that the Subpar: I precedures vculd cause an 30 percent chance of a " false positive indicatien of ground water impact during de first year of nenitoring and virtual car ainty of a false positive by de end of de second year."2 '"hi s report also noted -lat it was error Oc assume a normal distribu-l l tien of groundwater and to use only cne year of backgr:und data. t l l 1
" Guidance Oc I?A Regions on ' Student y' ""est for Indicating Groundwater Contamination at I,and Disposal Facilities," Novem-her 20, 1983 from John E. Skinner, Direct:r, office of Solid %
Wasta, USI?A :: I?A Regions :-X. A copy of 2:.s document is included v1 2 h.s submission as A::ach=en: 2. . 2
" RCRA :nterim Status Groundwater Meni:Or.ng," May 19, 1983, Invironmental Sulle :.n from Chemica; Manuisc:urers Assoc:.ation :: Inv:.r=== ental Management Centacts, pp. 3 and 4.
A copy of 2:.s dec : men A::achment 3. is .n=1uded vic .h.s subm:.ssion as
17 - Racer tan regairing the use of dese flawed precedures, de NRC regulations should specify da: ce
.greundwater data rust be evaluated by a vaalified statistician who will determine the appropriate method for analysis. Such an approach'would assure-an independent review of data from each site and would impr=ve -le reliability of de analysis.
Of ecurse, the NRC can and should regaire a justification for the statistical method that is applied, as well as the submis-sien of : pies of all calculations. Similarly, as discussed abcve, it is inappropriate
- = apply a nondegradation standard to groundwater affected by tailings. See 5 264.92. Many of -de tailings are in -le arid southwest, and de uppermost agaifer is unusable as a result of natural conditions. 48 Fed. Reg. at 45943 (1983). A reqairement := protect such water from furter ha mless con-tamination would serve no purpose. Accordingly, _he regulatory effer. should be directed a: =aintaining -he Taality of usable watar, not on needlessly protecting nenusable water. .Moreover, c e NRC should evaluate-de potential constituents frem tailings opera:icns 24: may impact. groundwater and, on the basis of health studies, develop specific ==ncentration limits .
that are predicated en scientific fact, rather than an arbitrary I ncn-degradation standard. t
... .~we s. !C . .,
l What shculd be included in a-listing of hasard=us l consti nents for mill tailings Oc replace de 375-item leng l ___ _ _ . _ _ _ _ _ - --
lis: in Appendix V!:: to 40 CFR Part 251 :sferenced in 40 CIR 254.93? Should cens:ituents not usual *.y present er no: presen aheve trace levels be included? What criteria should be applied to decide what constituents should be included? Rescense to Issue No. 3 1 f "'he preamble to a proposed rule recently published by I?A to amend Subtitle C of 2.e SWCA regulations indicates that even I?A itself recogni=es de technical problems and inaccuracies that exist in its Appendix 7!!! listing.1 "'he NRC regulations shculd tailor de Appendix V!:: list to include en 2e list of potential groundwater contaminants only 2cse hazardous constituents _ hat are ecmmon to a uranium or horium processing facility. "'here certainly is no justificatien for including the entire list of approximately 375 items 2 c=ntained in Appendix VII* to 40 C7R Par. 251, par.icularly since 9.e majority are organic ce= pounds that are act associated wi h tailings piles.
- ndeed, a report by ?I";Co Invironmental, Inc.
for IPA hat evaluates managenen: practices for solid waste hv.'
.he nining industry includes a study of -he uranium =ining and Mead " Hazardous
--d Waste Management System: Ground Water Testing g Activities (? reposed Rule)," 49 Fed. Reg.
28736, 387S7-89 (Cc cher 1, 1984).
"' hire is an exception for de demicals specified in Table i ef 4C C.I.R. i 154.94(b)(1), if -he levels in Table 1 are higher tan background.
segment da: evaluates Only 41 contaminants. O.is narr:w:.ng of de '.13: suggests even I?A's naci: recognition da: enly. certain contaminants are relevant. Se NRC should determine a specific list of constituents that it is appropriate to regulate and establish a concentration limit for each of ecse consti-tuents based on scientifically recognised studies of adverse effects on the health of humans and -le environment. . It mus: be noted that I?A has added molybdenum and uranium to the list of ha=ardous constituents -lat are referred to in 40 C.I.R. $ 154.93, vid the effect of i.-. posing a non-degradation standard for molyhedenum and uranium. S.ers is, however, substantial evidence ca dissolved =clybdenum is not a significant heal.h ha:ard.2 Morsever, wi-2 respect to uranium, acute chemical Ocxicity has been shown to occur in i
"Ivaluation of Management Practices for Mine Soli:1 Waste St: rage, Disposal, and Creatment - Volume 1, Charactarina icn of Mining Industry Waste" by PCCc Inv.renmental, Inc. for USI?A, Office of Research and Development, Cincinnati, Ohio, Centracu pp. 5-1, 5-2, Number A-1 53-03-2900, to A-3. December 1983 (Oraft Final Report),
A copy of a po:---ion of tis report is included wi-2 -lis submission as A :achment 4. See Appendix to Ocmments by Kerr-McGee Corporation, Kerr-McGee Nuclear Corporation, and Karr-McGee S.emical Cor;.oracicn on I?A Invironmental Standards for Uranium and S.cr:.um Pr: posedMill 40 Tallings C.I.R. Part at Licensed 192. Commercial Process:nq Sites: the NRC en Iebruary 11, 1995 in connection (S.ese ccaments with the versNRC's filed with proposed rule conforming the NRC's 10 C.I.R. Part 40, App. A requirements to I?A standards.) S.e apparent :cxicity of , molybdenum very low. ingestion is en -le order of pc assium salts: 1.e., In fact, industrial popula 1 ens have been exposed Oc '.svels as h:.qh as 50 =g/ day widcut ill effects. S.e reason
'-- -" s absence of ::xic:.:7 is evidently -la me'.y denum is very rapidly a= sorbed and rapidly excreted in urine. ~2'i s .
mechanism is effective in regulating biced and other tissue ec= centra::.cns of -le element.
hu=ans and experi= ental animals only after de ad=inistra:1:n of mass.ve deses.1 Accordingly, -he NRC shcu'.d use the flexibility it is accorded := allow discharges of these contaminants. ISSUI NO. 4
"'he NRC must establish SWCA-ccmparable regairements Oc the maximum extent practicable.' In his centext, what is practicable given current practice and the current state of technology? -
4 Rescense te Issue No. 4 Many aspects of the SWCA regairements are do: practicable as applied Oc tailings management. For example, I?A states cat active uranium processing sites should c=mply wi d 40 CIR 5 254.021, which calls for a liner to prevent I migratica of wastes Oc adjacent soil or water during the active life (including the closure period) of de facility.1 Although liners are in use at the chemical. waste l facilities da: de SWCA regulations were originally established 5 l
'"he health effects associated with ingestien of uranium I have been studied is detail and are su=mariced comprehensively l
'n a number of scurces. See Appendix to Comments by Kerr-McGee Corporation, Kerr-McGee Nucisar Corporation, and Kerr-Mc'.a" e Chemical Corporation on I?A Invir:nmental Standards for Uranium
, and ""horium Mill Oailings at *,1 censed Commercial Processing Sites: Proposed 40 C.T.R. Part '92. i (~'hase comments were i filed w:.th .he NRC on February 11, 985 in connect .cn w- -'- -' e NRC's pr: posed rule c:nform.ng de NRC's 10 C.I.R. Par- 40, App. A rega:.rements Oc I?A standards.) 5
" Existing por :.cns" of a facility are exemp: fr== his regairement.
I l l l 1
f 21 - to cent:01, 2.ey are ::: appropr:. ate or ecs -effective for most : tailings sites. Uranium process:.ng results in -he deposition of wastes ever a large area and de instal',atics and =aintenance of a liner over such a disposal area is exceedingly costly. It is not appr priate to impose a liner regairement for such vastes wi.hout first assuring that -le costs of ecmpliance are in reasonable relationship to the benefits.
- f liners are required in some situations to provide appropriate groundwater pr=: action, the regulations should provide the flexibility to the operator Oc deter =.ne the type of liner best suited to site-specific needs and conditions.
In fact, the NRC regulations should not fellow the SWDA regulations, which specify a synthetic liner unless an exemp-tien is granted. A syn-detic liner is generally unworkable in a large-volume mineral extraction operation, and may result in an unstable vaste disposal area. Moreover, such a liner generally reg 2 ires a c mplicated leachate e=11ection system l (in order Oc control the "ba htub effect"), which in turn regaires active maintenance and menitor ng -- a regairement
. hat is directly centrary := the admonition in CIT 2CA to t
m:.nimize scrive maintenance.
- = sum, I
operators must be allowed flexibility in i disposal site design. It should not be necessary Oc chtain a i special exemption in order to implement centrols.which, con-senant vi-2 :CRCA, mini =ise =aintenance and provida -le best, most ::s:-effective protection me hedclogies. ~'ailings piles
22 - simply are en an entirely differen physical scale tan chemical waste inpcundments and de regulatiens must reflect this fact.* i ISSUE No. 5 l Sliould NRC retain the basic sequence embodied in l I Subpart I where licensees who detect groundwatar contamination progress through a graduated scale of action, frca detection i monitoring, through complianca monitoring, and on Oc corree:1ve l action, with significant time delays allowed between steps while plans and programs are being developed, reviewed, and i implemented? i Would it be advisable, practicable or appropriata-i to require, for example, that all NRC licensees have approved L compliance monitoring programs that are automatically activarad i and i=plemented when needed? Resconse to Issue No. 5 Kerr-McGee must reiterate 2.at the NRC cannot, censonant with its statutory duties and au-dorities, si= ply assume the applicability of any portien of Subpar. ? to facilities associated wit tailings. Nonedeless, Kerr-McGee believes 2.a: de basic concept of secuential progress alcng a gradua:ad scale of detection, ccmpliance, and corrective actions is correct and should he implemented. Su such a program should have greater flexibill:y than is provided in I?A's Subpar: F in order to accc=medata important site-specific We have already discussed .he inapprcpr.a:eness of a acn-degradation standard, see p. 11, surra, and w:.li not repea: ta discussien here.
and situatien-specific c rcumstances. Kerr-McGee believes that it is net advisable, practicable, or apprcpriate to require licensees Oc have generalised ce=pliance =enitoring programs developed in advance of the specific situations which demand special efforts. 3 ISSUI NO. 6 Should the basic SWDA scheme for the tining and duration of a " compliance" period, a " closure" period, and a
" post-closure care" period be maintained? What modifications, deletiens, additions should be made?
Reenense to !ssue No. 6
"'he SWDA framework for ccmpliance, closure, and' post-closure care periods must be modified before any application to uranium mill tailings.
First, the SWCA post-closure care period of 30 years must be adjusted to avoid ccnflict with previsions of UM"2CA under which state and federal govern =ents are required Oc take possession of the tailings disposal site following stabilisatien. This transfer of title may often take place before the end of a 3C-year post-closure care period. i j 1 Seccud, the peried established by SWCA for the l ec=pletien of closure -- 180 days after receiving the final 1 i i volum'a cf wastes -- cannot be applied to a uranium mill, Secause tailings piles may have an area in excess of 100 acres and a coverage depth of ever 50 feet, a lead =e of 5 to O years may be required for deva:aring. Such dewater ng must be ec=plete before heavy equ p=ent can safely be used en the pile l
)
Oc start racia=atien. ~'hus, exper:.ence suggests that it is necessary := allow a period of 5 := 10 years after final deposition of tailing =aterials before final stabilication can even begin.
~hereafter, one er.two years will be needed to complete re-centcuring and := install a cover. i ISSUE NO. 7
*o what extent, how, and under what conditiens should leak detection systems under single-liner i=peundments he allowed to fulfill the regairements of a detec:1cn moniter-inq program that otherwise regaires a monitcring well in he uppermest agaifer?
Restense to Issue No. 7
- n order for a " leak detection system" := function, a second liner must be present below the monitoring system := ecl-lect leachate for detection. ~hus, a single-liner impoundment does not allow the installa:1cn of a ' leak de: action system" other -han in the upper = cst agaifer.
ISSUE No. B l Eow detailed should NRC's requiaticas he, and what shculd and should not be required in areas such as well con-struction, sampling and sample analysis, determina icus of l annual average and seasonal background concentraticns, minimum detection levels, statistical traa: ment of data and determina- !
- .cn of s.aristically significant differences, reccrdkeeping and reporting, gaality assurance, e." l l
l l l I
Restense :: :ssue No. 3: As Kerr-McGee has already stated in its general c:=ments, the NRC shculd .aveid specific and rigid design and operating requirements in its regulations and instead focus on geals, objectives, and standards. None of the areas mentioned in Issue No. 3 are appropriate for detailed regulatory speci-fication. See, e.c., pp. 15-17, sutra. To the extent that g: eater specificity is or becomes necessary in some areas, it can better be provided in guidance documents prepared in fur-herance of de regulations rather can in the regulations temselves.
" Sis approach will provide greater flexibility and facilitate prompt response to new inferna:1cn and tech =clogy.
.ecs.r No.
.. a.
To what extent must de NRC pr= vide supporting envire= mental impact analyses considering -la nature of the requirements under consideration, soma of which have already been imposed by D A and are effective? If supporting environ - mental evaluations are needed for S~nCA-ce= parable rule changes except for the requirements already imposed by the UA, shculd de NRC c'entinue to proceed w:.-2 culy a single rulemaking to establish a complete ~ set of SWDA-comparable requirements? Reseense to issue No. c: -
"Se NRC is autor.:ed and chligated :: undertake a comprehensive enviren=enta'. evalua::. n of its regulations :.:
26 - Order Oc conform := the regairements of the Nationa'. Inviren-
= ental ?clicy.Act and '.C 0.7.R. Part 31. Fur-ler, .he NRC should proceed wi-2 a single ce=prehensive rulemaking Oc establish a ecmplete set of S*dDA-ccmparable regairements. No benefit would be gained from dividing te proceeding into separate, disjointed portions.
ISSUI NC. 10
!s the flexibility cited in de proposed addition to
-he :n= reduction of Appendix A [to] 10 C7R Par: 40 sufficient er should -le NRC develop and support additional mcdifications to conform to -he physical stability aspects of the I?A standards?
E Resuonse to Issue No. 10 As Kerr-McGee has already stated in its general comments and in its respense to Issue No. 3, te NRC must seek to provide fu:--her flexibility to meet site-specific conditiens. ' , Although de power to approve alter.atives is an importan: feature of de regala-dens, it is egaally essentia2. that rsgulatory regairsments focus on goals, objectives, and standards, rather than on spec:.fic and rigid design or operat-ing regairements.
"he NRC's half-hearted endorsement of flexi-bility -Arough the exemption power in its proposed :n=rodue:1on Oc Appendix A of 10 C72 Par. 40 -- while maintaining its rigid cr.: aria v.r-aally unchanged -- is wholly inadegaata. See Kerr-McGee Osmments, 3-13 (Teh. 11, 1985).
J
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- NC.....nN ws.m Kerr-McGee urges the NRC to undertake a hcrough and independen:
reevaluation of I?A's SWDA recuirements in the course of pr::mulgating its conforming regulations. Such a reexamination not only is authorised but also is compelled by CM"'RCA, and is necessary Oc achieve practicable and cost-effec-tive regulations. Mere incorporation of the.I?A SWDA require-ments wi.h :.inor cosmetic changes will not suffice.
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s x . i g ,y: __- ._ ,s Peter J. Nickles Icwin "'. 50 11, Richard A.7eserve Vice Presiden M.S., D.V.M Richard J. DeSanti and Covington & Burling Director for Invironment 1201 Pennsylvania Avenue, N.W. and Health Management
'?.O. Box 7566 Division Washington, D.C. 20044 John C. Stauter, Ph.D.
Director, Nuclear *icensing and Regulation and Director, Invironmental Affairs Kerr-McGee Chemical Ocrporation 123 Rcher: S. Kerr Avenue i Oklahora City, Oklahoma 73125 March 1, 1985 e -- _n~--n-,--ng, ---- -.- .r--., , _ - - - - - - -.---.e, - ~ , - - - - - . , , , -
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ENVIRONMENTAL POLICY INSTITUTE ecxs .wamm ) 09CMD 301.E 1 ~~Yd d 's\19f! t S AS415) /c'~/ , . March 1, ' 1985 /
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l Offles g 3, Mr. Samuel Chilk Secretary %4 - Brance U.S. Nuclear Regula: cry Ccmmission g 1717 H Street NW ~ Washington, DC 20555 Ic36
Dear Mr. Chilk,
Attached are the comments of the Environmental Policy Institute concerning che Ccmmission's Advanced Notice of Proposed Rulemaking related to tiranium Mill Tailings (10 CFR Part 40). These cc==ents are in response to the Ccmmission's notice for ccmment of Ncvember 26, 1984 (49 FR 46425) and cha cf January '.6, 1985(50 FR 2293.
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March 1, 1985 In the Matter of: 10 C7R Part 40 i Uranium Mill Tailings Regulation; Ground Water Protection and Other Issues; Advanced Notice of Proposed Rulemaking CDEBEN'S DE .*,35 532 3QDBE M M,2DId C 1321",Z2 The Environmental Policy Institute makes the. following comments -concerning the Nuclear Regulatory Com' mission's Advanced Notice of Proposed Rulemaking concerning conformance of 10 CFR Part 40 Uranium' Mill Tailings regulations to U.S. EPA standards, groundwater protection, and other issues. These comments respond-to the Commission's Federal Register Notices of November 26, 1984(49 FR 46425) and January 16,19 85 (5d FR 2293) . in:DsWsaisD As a general proposition, the Institute welcomes efforts by , Federal agencies to solicit comments on prospective rulemakings through the publication of an " Advan c ed Notice of Proposed Rulemaking"(ANPRM) as the NRC has done here. Had the NRC complied with the requirements of P.L. 97-415 to conform its uranium mill tailings regulations (10 CFR Part 40) to the final EPA regulations within the six month allotted period, or had the Commission proposed a procedure f or complying with that requirement through an interim rule or.other mechanism at the time P.L. 97-415 was enacted, an ANPRM raising quest:.ons relevent to application of the EPA and NRC final rule to 27 existing uranium mill sites would have been appropriate. The unique circumstances encountered at the existing sites including contamination of groundwater and the temporary, if not permanent, closure of many f acilities raises the need to develop prompt, workable methods for establishing monitoring programs. establishing compliance points, alternative concentration levels and initiating remedial actions. NRC, however, has failed . to conform its regulations, as recuired, in a timely manner, and has arbitrarily prooosed to , indefinitely def er conformance of key portions of the required rules through the ANPRM and rulemaking processes. As such, the ANPRM can only be seen as a means of avoiding timely conformance. We f urther observe that to the extent that the ANPRM process could have been used to resolve some of the implementation issues confronting the existing 27 mills, the NRC has i :etrievably comprcmised tnat possibility. , F
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- i:212 CDi2:3AM2 la 32GL:26 hD4 :2 395 Di22:: ix 2 As the Institute argued in its comments on the companion proposed rulemaking(49 FR 46413) ("the proposed rule"), the NRC j was required by Sec.13 of ?.L. 97-415 to conform its October, j
1980 uranium mill tailines regulations to final EPA regulations j within six months by March 31, 1984.
)
The Commission was required by F.L. 97-415 to initiate a specific set of conformance actions related to EPA's rulemaking unde r Sec. 275. First, NRC was required to suspend those parts , i i of its mill tailings regulations that would have required "a - major action or commitment by licensees" which would have been rendered unnecessary if the proposed standards were to become I final and NRC conformed to-them. Second, NRC was required to conform its October 3, 1980 mill tailings regulations within six l months of final EPA promulgation. The conformance requirement, as distinct from the charge to NRC under Sec. 84(a)(2) to regulate tailings in a manner that conforms to the EPA regulations, is unequivocal. The Commission does not have discretion to defer conformance, and certainly does not- have discretion to do so on the vague pretext offered in the i proposed rule that it must develop unspecified " additional ' supporting documentation"(49 FR 46413-46419). i The NRC.is also required under Sec. 84 (a) ( 2) to regulate ' uranium mill tailings in conf ormance with the EPA standards.
- Those standards are final and effective and NRC must reculate in '
conformance with those regulations. It may not arbitrarily disregard that requirement by interpreting Sec. 8 4 (c) as preemptive .or superceding authority. There is no basis in the legislative history of Sec. 34 (c) to support the NRC's contention that Sec. 34(c) in any way represents an authority independent of the other requirements of Sec. 84 including EPA concurrence. Furthermore, to the extent that Sec. 34 (c) reaffirms the NRC's " historical" authority to regulate under the Atomic Energy Act, including discretion to review site specific alternatives, Sec. 84(c) clearly conditions such consideration on a "non-historical" requirement of consistency with "
...any final standards promulgated by the Administrator of the Environmental Protection Agency in accordance with section 27 5." As noted above, those final standards have been promulgated, they are effect ve. they require concurrence of EPA in certain circumstances, and in the exercise of its Sec. 84(c) authority NRC must be in ccmpliance with those final EPA standards.
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"* Summary"(p. 46425)--The ANPRM states that the proposed action
... is necessary :o make NRC requirements 313122; to EPA en
standards as required...' (emphasis added) . As the Commission well Sec. knows, 84 of the there AEAisornothing in the statutory authority, under P.L. 97-415 which would suggest that
" s i m il a r i ty " is the appropriate description of the required action.
Sec. 34(b) and Sec. 34(c) and Sec. 275 clearly require NRC confo:mance with EPA standards; in the case of Sec. 84(c) with EPA concurrence. P.~. conformance by the NRC to the 97-415 also EPA standards. Inclearly requires the context of the words, respective legislation, as well as the common meaning of the "conformance" requires a more direct congruence and agreement than the use of the word "similar" conveys. As such, the ANPR action. rulemaking misrepresents the goal and necessity of the required
" Supplemental Information"(p. 46425)---As stated in our comments on the proposed rule and previously in these comments, we do not believe that proposal of the ANPRM is consistent with legal requirements for timely conformance of the Commission's mill tailings regulations with those final the EPA. Similarly, the NRC's statement itstandards promulgated by is "...considering undertaking including within a rulemaking them thosewhich SWDA would clarify its regulations by E PA. . . " is a distortion of the P.L. requirements selected by 97-415 requirements for specific conformance of the Commission's e the EPA standards including those governing non-:gulations adiologicalto ha=ards relating to the SWDA.
NRC's Asview statedthatin our comments on the proposed rule, we question there .is an additional requirement, which would not fulfilled by conformance EPA's Sec. 275 standards, to establish other general requirements consistent with the SWDA. While it is appropriate for NRC to ask in an ANPR whether or not there is a need for such additional requirements, or whether therehas NRC arepresumed any general that SWDA requirements not already addressed, there are such requirements and tha; :tgir 2:31.23D i;J Di 222hDillDRSDl:242 23 22 2232li*l d2121:31 Di 2DDia 3RDS2 Si 231213S; J2andards. presumptuous and extreme. "'his view is, in our opinion, As ncted in our comments on the proposed rule, the nature of the EPA rulemaking, especially EPA review and consideration of the tailingsentire standards, body of RCRA regulations in developing its mill suggests that no " residual" SWDA requirements, not already embodied, in the Sec. 275 standards exist. If such requirements do exist, it is doubtful that they are of such a magnitude as to be inconsistent with the Sec. 275 standards and therefore necessitate the proposed Commission deferral of confor=ance.
" Supplementary Inf ormation"(p. 4 6426) ; Misinterpretation of EPA Standards and Regulatory Scheme---: -
"'he " Supplementary Information" 3 states : hat :he Commission considered futher revisions to Appendix A of its uranium mill tailtngs, but did not do so in the proposed rule. The Commission 3
{
raises these issues in the ANPRM instead. Specifically, the ANPRM states that 1) EPA's numerical longevity standard takes a different approach to longevity than NRC's regulations, 2) _ EPA allows active institutional controls and the NRC p;chibi:s such reliance on institutional controls, and 3) prescriptive design requirements in the NRC regulations may not be necessary to meet the EPA standards. NRC also asks for comment on whether the case-by-case review of prescriptive requirements is an - appropriate substitute for deletion of these apparently unncessary NRC requirements. NRC's teading of the EPA standard is dramatically different from the obvious letter and intent of that standard, so much so, j that we must conclude that NRC has misinterpreted and-misconstrued the EPA standard. Longevity-The ANPRM argues that EPA specifies only a numerical duration
- standard of "one thousand years ...(and)...at least 200 3
^ years" and' that this is entirely inccasistent with the.NRC approach. The EPA standard, as clearly spelled out in the EPA standard and preamble, and addressed in our comments on the proposed rule, requires control for periods longer than 1000 years consistent with the existing NRC approach. EPA identifies a variety of risks, existing hundreds of thousands of years, and pathways including human intrusion and radon release, which are intended to be controlled by the EPA standard in a manne entirely consistent with the current NRC approach.i.e. through a highly durable, thick soil cover. As stated by EPA,
". . .we intend that the design requirement for " reasonable assurance" should :.ead to thicx durable covers that have a substantial likelihood cf maintaining radon emissions below the 20 pic/m2/s limit for 1000 years."(48 PR 45938)
In order to have a substantial likelihood that risks from radon will be kept below the 20 pic level for 1000 years, and that other risks, such as that of human intrusion be limited through physical barriers, EPA obviously requires NRC to establish the type of requirements embodied in the current NRC standards f or longevity. Furthermore, IPA obviously leaves to the NRC the establishment and attainment of the appropriate level of " assurance" which can clearly embody the current NRC objective of cone:o1 for periods beyond 1000 years. Institutional controis--NRC argues that EPA considered and allows the use of institutional controls. This is entirely contrary to the intent of the EPA standard. IPA repeatedly considered and ref acted approachs, including those advocated by the NRC in its comments to EPA, which required or allowed institutional controls. In rejecting the recommendations nade by the NRC "U:anium Mill Tailings Task Force" and industry to establish radon concentration li=its instead of radon emission limits, the EPA specifical'.y rejected the reliance upon institutional 4
controls as well adopting the basic regulatory approach taken by NRC in its 1980 regulations of setting a radon emission standard (see 4 8 FR 45940) . EPA also clearly rejected the notion that institutional centrols, in the form of continued governmental ownership of the site, were adequate to dispense with a " clean up" standard of mill sites (see 48 FR 45941) . Where EPA did consider the implication of governmental ownership, which is specifically provided for in Sec. 83 of the Atomic Energy Act, as amended by UMTRCA, EPA rejected the notion that than reliance"...an upon institutional ~ controls could anything other essential backup to passive control." As EPA pointed out,. Federal or state ownership was necessary to preclude location of habitable structures on tailings piles which would present a risk in excess of that controlled by the standard. This position and the consideration of Sec. 83 authority for governmental ownership NRC regulations. is essentially identical to that contained in the 1980 As NRC stated that,
"...in most cases Government control of the surface rights is necessary 1) to control land uses at the disposal site which could lead to disruption of the tailings, and 2) in general, to assure ongoing sur-veillence is performed. "(45 FR 65527, October 3,1980) ,
Also, this general proposition is embodied in Criterion 12 of Appendix A of 10 CFR Part 40. t While we would agree that the NRC minimum cover requirement and lower 2pci radon limit provides a greater deg:ee of protection in the subject case of huma'n habitations, the EPA clearly states that such institutional controls are not intended as the primary controls and nor does NRC. Both agencies envision government use. To theownership as a means of controlling long-term land extent that EPA identifies a specific risk, i.e. human habitation of tailings sites, NRC is once again bound by the " reasonable assurance" language of the EPA standard, and its own health and safety authority under Sec. 84(a) to consider more stringent requirement. control requirements, such as a minimum cover Finally, the EPA does suggest a residual institutional responsibility in establishing the secondary grounwater protection standard (see 48 FR 45942) . EPA does not, in this case, state that governmental control substitutes for other control measures. Rather EPA states that in establishing alternative concentration limits, where contamination "will remain close to the pile and is within the boundaries of the licensed site," government ownership is recognized as an additional means of limiting public exposure after closure which i signt allow an alternative limit during operationaDd naviating aha 11:3;nativa D22s ins 323 99D22:12D22 limits. Governmentinownership 2h2 3252hlishD&D1 is not, in :he21 context 232h 5 t f
- ~ . , - , - - - ,_, .- ,.m . , . -_,_ , . _ _ . _ _ . _ _ . , - . _ _ _ . _ . . - . - - - - . , _ _ _
of establishing alternative concentration limits under 40 CFR 254.9 4 (b) , intended as a control measure. As NRC will further ' note, 40 C7R 192.33 " Corrective Action Procrams" only acclies to '
*1icensed site (s).' ~
~
In conclusion, we do not find a basis in the EPA standard to conclude, as NRC did, that EPA considered and allows active reliance upon institutional controls. Institutional controls should not be relied upon as a means of long-term environmental or public health protection. Prescriptive requirements---The NRC's obligation to provide a
" reasonable assurance" that EPA's generally applicable standards are met through specific design and performance requirements fully allows, if not necessitates, preservation of NRC requirements for prescriptive requirements. As is made abundantly clear in the EPA rule and preamble, EPA provides the NRC significant leeway to establish the necessary level, and subsequent requirements to implement, this " assurance" and there is nothing .in the EPA rule or supporting documentation to suggest that prescriptive requirements are not necessary.
The EPA clearly envisioned the need to adopt control measures. resistant to "...such natural phenomena as earthquakes, floods, windstorms, and to chemical and mechanical processes in the piles or impoundments."(4 3 FR 4593 0) . IPA cited the recent report by Colorado State Univer sity(CSU) for the NRC on " Design Considerations for Long-
, Term Stabilization of Uraium Mill Tailings Impoundments" as a basis for adopting its stendard. As the NRC is fully aware, the subject report recommended certain highly perscriptive requirements for slopes, siting, and cover materials so as to avoid erosion and gullying. The assumption of the C3U study, that such controls could be highly effective and if designed for 200 year control could be expected to last significantly, i.e.
1000 years, is explicitly embodied in the EPA standard. As such, one would fully expect that the prescriptive requirements contained in 10 CFR Part 40 Appendix A would be retained, if not expanded upon in light of the C3U report. Since additional period of control, beyond 200 years, can be attained with only minimal, if any, additional incremental cost (if the C5U study is correct), NRC has every reason to retain such requirements in Appendix A in light of the EPA longevity standard. While NRC has the authcrity under Sec. 84(c) to consider ' alternatives to its Appendix A requirements, the presumption of the EPA standards and the NRC rulemaking and GEIS in this area is that mill tailings disposal requires a long-duration, thick cover in ~ order to control all major long-term pathways including human intrusion. As such, the requirements for assuring maintenance of controls and protection of the public health and saf ety and the environment are well documented, as in the CSU study. Consequently, the exercise of Sec. 84(c) authority is :he most one should expect in terms of
- flexibility" and not through deletion of prescriptive requirements.
l J 6
Commission Authority and Responsibility--As noted in our comments acove and in response to the proposed rule, NRC has misconstrued Sec. 84(c) of the requirements of sec. 34(a)(0)to authorite regulation of mill tailings independen or (a)(3). NRC argues that it has historically had sweeping authority under the Atomic Energy Act of 19f 4 to regulate licensees. ourselves from expounding at length about While. theveabuse will restrain of this authority ' and the successive steps taken by Congress, including the dismantlement enactment of the ofEnergy the Atomic Energy Commission by Congress in Reorgani:ation Act of 1974, it is sufficient to note 12 uranium 2111 tailines. that this " historic a authority did n21 enend Prior to the enactment of UMTRCA, NRC argued regulatethat it did not uranium millhave direct Atomic Energy Act authority to tailings. for UMTRCA uraniumessentially mill tailingstransf from erred EPA,primary regulatory authority authority under RCRA and the SWDA, to NRC.which had regulatory that accounts for the unique retention ofIt an i.S explicit this transfEPA er standard setting role and the repeated requirements f or NRC to regulate mill tailings in conformance to EPA standards and the SWDA. Even if such had regulated " historic" authority had existed by which NRC tailings, the UMTRCA established specific requirements for conf ormance to E?A regulations and the SWDA. UMTRCA and subsequent amendments, including P.L. 97-415, have specified in great detail NRC authority to regulate tailings and to consider alternative alternative standards requirements for licensees and for agreement states. NRC has misconstrued Sec. 84(c) authority as an authority independent of any other regulatory which is entirely at odds with the letter and legislative intent of the UMTRCA and subsequent amendments.
~ Issues for Public Comment---As stated repeatedly, we do not question the lawfulness of UMTRCA or EPA's SWDA regulations, but we do question the lawfulness of the proposed rule conforming NRC mill tailings regulations to EPA standards and the ANPRM. The NRC approach, such as it is, is too tentative, too late, and too arbitrary to fulfill the requirements of timely conformance. NRC should immediately conform its regulations to the EPA standards.
Such regulations including the SWDA should issues.include - all aspects of the EPA standard proposed rule NRC may issue for comment an ANPRM or concerning implementation, such as establishment of the issuance of alternative concentration limits, monitoring but mayrequirements not defer or methodolo Conformance. We do not believe that the regulatory scheme promulgated by EPA iscertain While at greatnumerical variance from that already promulgated by NRC. requirement, requirements, such as the longevity outwardly appear to vary from current NRC regulations, E?A's rule fully allows NRC to retain its basic regulatory apprcach of a long-term, durable soil cove, centrol of radon emissions, alteration. reliance upon passive controls with little NRC is granted discretion in interpreting the level of "reascnable assurance
- needed to fulfill EPA requirements.
7
Issues and Questions---
- 1) NRC may, within the requirement for conformance, rewrite its existing regulations in such a manner as :o incorporate the substance of the EPA regulations.
agency, its Since NRC is -the implementing interpretation and elaboration of the EPA requirements are both a more efficient and inf ormative way to achieve conformance than precisely. duplicating EPA's language.
- 2) Subpart F need not be duplicated. NRC is required to conform its regulations and to 12 3:3;33 sad implmmast the EPA regulations.
To the extent that Subpart F is to be incorporated, NRC should draf t regulations incorporating those provisions of Subpart F pertinent to uranium mill tailings. 4) We know of no part of the SWDA regulations referenced by the EPA in 40 CFR Part 192 that is not practical. The only issue that needs additional explication is the duration requirement of "any future time" for the allowance of alternative liners (40 CFR Part 264.221(b) ) . We believe that the net evaporation climate at existing mill sites makes this aspect of the RCRA requirement practical, perhaps in contrast to many RCRA sites in net precipitation environments, because the hydraulic pressure causing contamination decreases as the tailings dry out and can be expected to be negligible at closure. All the same, NRC, within the context of conforming its regulations, must develop an applicable interpretation of "any future time. "
- 5) It is our current view that the Subpart.F corrective action requirements are the minimum requirements and that all licensees should immediatel required to implement appropriate monitoring programs.y be Our concern is that Subpart F requirements are not adequate given the long periods of time that may elapse between identification of contamination and termination of use of the impoundment. We are also concerned that specialised monitoring techniques appropriate for the extremely large sine of mill tailings impoundments, as contrasted with most RCRA-type facilities, be employed. Existing tailings facilities may also lack a good baseline data base from which to develop alternative concentration limits and compliance with limits once approved.
Such f acilities should probably be required to initiate some sort of up-gradient water quality monitoring system as well as a 1 ccmpliance point monitoring system. l
- 9) As stated repeatedly, the NRC is f aced a far more limited task than it paints for itself in conforming its regulations. There are only 27 existing mills, few , if any will be subject to the primary EPA standard. NRC has extensive documentation to support its original, and in some cases more stringent, standard with l greater application to new mills. While we would not want NRC to leave itself open to interminable legal challenge from the American Mining Congress and others who have ied this program in li:igative knots since 1:s inception, we do not believe that the conformance consti:utes a major federal action for the 3
1
purposas of NEPA in light the analysis prepared by EPA.of the GE!S already prepared by NRC and 29BDb2i2D
-As no future, NRCnew is uranium mills are expected in the forseeable overstating the complexity ~and magnitude of applying the new EPA standards to its licensees. As EPA f ully acknowledged, mills, all of the basic regulatory burden will be on existing I groundwater which can be expected to have contaminated in the vicinity of the tailings pile (see 48 FR 45941 "The Secondary Standard and the Complementary Roles of EPA and NRC") .
EPA has proposed in the preamble and again .in negotations with'NRC to expedite the issuance of alternative concentration mills. limits, where and when applicable, for existing. In negotiations concerning establishment of an MOU, EPA agreed to the establisment of a generic methodology for issuance of alternative actively concentration concur in that activity. limits to further reduce its need to . agreement was essentially -sabotaged by NRC in July as the The ratification of that Congr'ess legislation whichconsidered legislation to limit E?A's authority; was rejected. The NRC's repeatedly- delays in conformance, including retraction and redrafting of the af ter its July 31st public release, proposed ruleofin its sabotage August 1993 Memorandum of Understanding negotiations with EPA on implementing the standard in July, and its arbitrary deferral of conformance SWDA issues to an ANPRM can only be described as extraordinary. Rather than burden the docket of this rulemaking with the additional material at issue, such as the July 31st version of the proposed rule, the various draf ts of the E?A and NRC MOU's, and information obtained via the Freedom of Information Act concerning NRC's actions in promulgating the proposed rule and ANPRM, the Institute will make a subsequent filing of an index of this documentation for the record. 9
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Commission has recuestec ouhlic inout on the rulemakiro crecess intended to incc*') orate the necunri watae crotection nrovisions established bv t5e Envi-onmental P-otection Acency's (EPA' 20 CFR 102 final rules issued on Sectember 30, '9*?. This action would be the #inal stee for the Comission to conform its uranium mill tailinas reculations IAccendix A to 10 CFR Part 40' to the EPA's final rules. as -ecuired "y the Uranium vill Tailines Oadiaticn Control Act of 1973. On behalf of the State of New Mexico, the folicwina comments are su"mitted for conside-ation by the Commission. First we reiterate a conce-n stated to the Commission in comments submitted to Secretary Chilk in our . ebruarv 3.1935. cor esocndence. The coment was directed to the Cc r'ission's decision to sol't its -ulemakiac activities into two stages, a dec's'on that we believe may not *e justifiable for the reasons stated berein. Sett:ng aside cuestions which .might address whathe" or not 1RC is within its author'ty in selectiac such an accroach, cur concern was one wnicn addresses the imoacts this accreacn will have on effectiva ranulation of uranium mill tailings. It has keen stated that it is the Commission's intent to soeed uo the rulemakina crocess by utilizina this crecedure. However, in our view this acoroach will cniv further ocstocne the ultimate ornmulgation by NRC of definitive fede-al standa-ts. This event was clearly not the intent of the 1973 Act. anich crovided that final ules
=ere to be set forth within a thrae-vear time frame. Therefore, we succest .,
that NRC move cuick lv to ruhlish a :-cocsed -ule. 3v the NRC's cwn estimation, the crecess cur-aatly orancsed for develocina final miles ill "eva -equ -ed in excess of '.0 vea-s. olus uo to th"ee i ace'tional vaars 'e- Ac-aamant States to " ave thei- f'nal ru les in olace. , With ceneral -afe-aace to the -anne in whic* NRC craonses to car-v aut tha Ocncressional mandata to ut'l'ze exist'an SWCA stancards as benchmarks fnr "RC aroundwater recu ements, wa "eliave that the Concress'enal mandate wculd i he 'o e effect velv ach evec i tv selective carachrasinn of the SWCA-basec E?A stancards ' as ccoosed tc *n o lesale, verrative acoction of the E?A standards'.
'is wou ld, in cu- v 4'v. also aliminate the necessity to d-aw cut the
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" . Samuel Chilk Fen-uary 25, 1995 Page 2 In -esconse to the soecific issues which the NRC recuested to be further addressed in the ANPR I49 FR 46425; November 26, 19841, New Mexico orovides the following comments:
At cane 26426 lith oaracrachi. "the Commission -ecuests c0mments on whether it should delete or modify additional crovisions of Accendit A inclucing cresc*iotive recuirements for soecific design features . . . ". We recommend that the "arescriative recui ements" shculd be retained to orevide a f-amework acainst which licensees' site-soecific alternatives may be evaluated. New Mexico's exnerience with evaluatino reclamation olans subritted hv licensees has shewn that where 90 orescriotive *ecuirements exist. licensees can and do submit an endless series of crocosed methods of meetino a civen environmental standard. So lona as there is no crescribed method against whic5 alte-native met 5cds may be evaluated and comoared, it is vi-tually imoossible to make a determination that a licensee has finally failed to meat its~oblications. That is. tha doency is oniv amoowered to determine that a prooosed method will not meet the environmental standard, and then await further licensee submittals. Removal of "orescriotive recuirements" f*om the NRC's Accendix A would only make it more difficult in gettinq licenseas connitted to effective reclamation olans. At page 46423 of the ANPR, the Commission lists ten issues for comment. (l i The NRC has recuested cuidance as to whether the "SWDA-comoarable recuirements to be olaced in NRC e orecisely duolicate EPA's languace,gulations he exolicitlyrecuirements or should substantive restated to be carachrased". Cleariv. the enti ety of the SWOA is not acolicable to uranium mill tailines reculation. In 40 CFR Part 192, the EPA recuired adootion, as a sinimum, of "all or cart" of soecific sections fa8 FR 45942; Cctober 7, 19831 that hava acclication to uranium mill tailines facilities. Suostantive caranbrasing of those sections w th i direct acolication only to tailinas' reculation would minimize confusion for regulators and licensees in inte-cretation. These recuirements wculd be est orcanized by the NRC in terms of desion. coeratino, closure and cost-closure recuirements. The NRC's final rule should creferativ be a comnlete, stand-alone set of recuirements, thus eliminatino any need to reference E?A's requirements in Title 40 cf the Code of Federal Reculations. f2' T5e NRC ests what sect cns of Subca-t F need not be included. In 20 i CFR 192, E?A has indicated that NRC is ecuired to adoot all f or cart of' the sections of Subcart F, with the excention of Saction 264.90, that aed-esses "Acolicabil'tv". Section 254.90 is -edundant to the hasis of NRC's Accendix A,10 CFR Part 20. Da-aohrasino nf su*stantive recuirements and editorial chances le.o., insertion of accrocriate NRC or Ao-eement State authorities fo--thoso -ecui ements to be overseen or fo* which aooroval is -ecuired by the EPA Recicnal Ac9inistrator' will crovide soecific guidance to the licensees as to , their cbligations.
I M . Samuel Chilk February ' 25, '.925 Pace 2 (3) The NRC incuires wnat should "e 4rcluded in i listino of hazardcus ccnstituents for mill tailinas -eferenced in 40 CFR 254.93 /Accendix
'ilIII, and should constituents not usually oresent or not n*esent above trace levals 5e included. The hazardous constituents to 5e monitored for should be determined by /11 the chvsical and chemical characterization af the waste solutions that are cene-ated by uranium mill o ocessina activities, and (21 monitorina that is soecifically required andee acolicable federal or state reculations. The Commission should make clear that a facility which coe-ates its imnound. tent so as to orevant escane of hazardous constituants shouldn't have to analvze fo- all of tha Annendix YIII constituents.
0* terminations fo* the inclusion of constituents that may be nresent at *" ace levels er less should he based on an evaluation of the cotaatial for health risks or oossible svnercistic effects that may occur with other collutants or constituents that may he cresent. It should be the resnonsibility of tha eculated facility to demonstrate that there is no catential for health risk involved.
'41 The NRC must establish SWDA-comoarable recuirements to the maximum axtent cracticable, and in this context, the PRC incuires from
- commentors to the ANPR as to what is "cracticable", civen cur ent oractice and the current state of tetanology. We believe that utilization of the "best cracticable control technoloov available" in ~
conjunction with " siting racui ements" can be used to achieve the recuirements of the SWDA. The NRC has addressed these concerns fin its orocosed Accendix A 10 CFR Part 40 conformire reculationsi, and therefore in the near future will have the necessary' mechanism in' olace to assure comoliance, at least in the instance of new facilities. In Technical C-iteria ' throunn 3 of the orcocsed "Accendix A" -ules, the licensee is recuired'to evaluate "lecal or recional conditions, includino ceoloov, toccarachy, hydroicav and meteo-olocy" fo oronosed tailings discosal sites. In Technical Crite-inn 5, the licensee would in addition be recuired to consider acclication of o*actices .such as installatten of bottom l'ners (to include synthet c Idne-s!, i dewaterina of tailings 5v crocess devices and/or 'n-situ drainage systems, and conside"ation of neutralizat4nn o"actdcas to neomote l immohilization of toxic constituants in tha wastes. The Tachnical Criteria, at least in cart, soec4 fica 11v address c cund water l nrotection and concerns. In the case of existina f acilities that utilize sur' ace imooundments with documented speaane nroblems 'which at the time of thair desian specane was -ot cenerally considered to be a o-oh lem but rather an acceoted eans of disoosina of wasta licuids', we believe that the NRC will have to ultimatelv make a decision to limit thei- further use as
,__m___ _ _ . _ _ . . - ~_ _ _ , - , . - , . ,_- . - - . . _ , . _ , -
Mr. Samuel Chilk Feeruarv 26. 1986 Page a waste disonsal cotions. This would then renuire evaluation of alternative disoosal technicues for existino mill facilitias to more
-eadily comolv with tha more st*incent SWDA recuirements.
f51 The "RC asks whether the craduated secuence of actions detailed in Subcart F 'in essenca 40 CFR 254.91-100) should be retained where croundwater contamination is detected for licensees? New Mexico Eu-*entiv has requ red coreactive actions for all fiva of its " active" i licensees. each of which ha'd dccumented around water contamination resultine frnm their tailinas d'soosal oractices. In each instanca. tha essence of the secuence nutlined in Subnart F was followed--i.e.. qround water contaminatinn was detected, an extansive monitorina crecram was instituted, and a careectiva action cronram imolemented. We believe that retainino the actions recuired in Suboart F are therefore oracticable. The .':RC further asks whether it miaht ha
" advisable, nracticable or acornariate" to ecuira that licensees have
-accroved compliance monitorina nrograms which could be automatically imolemented wnen needed? We believe that such conceatual clans s50uld.
be a part of the licensino action. Soecifics of the corrective action crncram to be imolemented would decend on the nature of the c"cblem.
/51 "Should the basic SWDA scheme- for the timine and duration of a 5
'comoliance' period, a ' closure' ceriod and' a ' cost-closure care' ceriod be maintained?" The basic scheme put fort 5 in the SWDA accears to be in line with current cractices and chilosenhies for around water oretec tion. The ccmoliance ceriac is defined as beina ecual to the active life of the waste manacement facility and ecuires institution of a monitorine orcoram to determine como14ance with acclicable cround water protection criteria.
The timina recuiraments of the closure cericd makes allowances should it be demonstrated by the licensee that extenuatino circumstances exist. Thus, this is built in administrative flexibility for dealing with site-soecific o*cblems. Uncer cost-closure recuirements, the licensee is committed to maintenance and monitorina of the waste containment system for uo to-30 vea*s. Acain, administrativa flexibility is available to reduce this cer'od, shruld the licensae he abla to satisfactc*ily demonstrate that tha closure clan is sufficient to neotect human health and the environment. This would seem to be to the advaatace of the Aareement State and/or Federal Government, which miaht at6erwise be -escensible for rectifyino an ineffective stabilization clan and the costs which would be incurred.
'7' The Commission recuests cuidance as to "what extent, how, and under what conditions should leak detect'on systems uncer sinole-l'ep*
imocunements be allowed to fulfill the ecuirements for a etection monitoring orcoram that otherwise recuires a monitorine well in twe uccerrost acuifee?" 'Ecchasis addeci. Our -esconse is a defiritive "to no extant" in acp11 cations to surface imncunements of the
'4 r . Samuel Chilk February 25. 1935 3 age 5 maanitude cresently encounte"ed for tailines discosals. To our knowledae, the oracticality or feasibility of sinqle-liner imoounement aanlications has vet to be demonstrated fo- surface imocundments.
However, for helow-orade discosal systems which emolov dewate-ine techniuuas, with axtensive imoeevfeus caolec 4c su5 strata to a*ound wate" sincle-line-s may be acclicable. In this instance we would
-acommend that two Concission defer indaement until such' tira as conclusive documentation is available tn demonstrate the feasihility of these anolications.
(S' How detailed should NRC's reculatinns he in reca-d to the requiraments of a monitorino orocram? The essence of NRC's cuestion is "shculd the 'connliance nonitorina crecram' *ecuirements cf Section 254.99 be exolicitly restated by NRC in its final rules fo" cround water orotection?" In this instance New Mexico would acree with NRC that
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some recuirements of Section 254.99 are excessive for acolication to tailinos discosal sites. For instance, one micht cuestion the oracticality of the recuirements of 264.99(2Mf' and its acolication
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to these sites. Under this subsection, the licensee would be recuired to analyze samoles from all monito-ing wells at the come11ance coint for all constituents contained in Accendix '/III of Part 251 / Hazardous Constituent Listi at least annually. Not all these constituents could be reasonably exoected to be cresent, and analytical costs involved could be excessive. Our earlier resonnse to NRC's cuestion 3 details the monitorina requirements which might be easonably recuired. Mnweve" we would
-acommend that NRC adoot the ce"formance standa-ds of Suhoart I with ecard to well construction. samolina, cuality control, etc. The NRC's Requiatory Guide 4.24 with accrocriate revisions 'e.c., to define the conoliance coint and also to soecifv *azardcus constituents to "e monito*ed for' . could "e used to orovide licensees with soecdfic cuidance as to the d= tails for a cround water monitorinc crocram.
'?' *To what exteat nust the NC.C crovide succortd no anvd ronmental imoact analvses considerino the nature of the recuirements under cons 1ce-atdon, some of which " ave al-eady been frecsec by EPA and see effective? Additional environmental analvsas may well be accroariate, as the around water recut ements mav result in -aduced imoacts relative to those creviousiv oredicted. Our ' answer is ves to NRC's inouirv as to "s5culd NRC continua to nroceed with oniv a sincie rulemakina to establish a com31ete set' of SUCA-comnarable recuirements?". "9C should 3-oceed as cuick Iv as cassible to establish final regulations fo" cratection of c-ound water.
" . S amue l Ch i l'<
Fec 2ary 25, 1985 Pace f d i t'Ci The NRC as'<s if the authar tv c ted in the Introduction to Anoandix A 10 CFD a0. which would allow licensees and l' cense acolicants to orconse 11tP" natives for aatinn the Comissinn's ?nd EPA's standards. is adecuarely suonneted, or naed the NRC develoo additional documar?ation. Acain, it wculd accear t"at !be .'RC micht be as'<ina comento-s to the ANPR for an intercretation nf the teens of Section'idlc' of the AEA of Ic54 and channes -'n the Act that were included 5v Pub. L. 97-415 'the
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'0831 Reculatorv Commission Authori:ation Act for fiscal veaes 1982 and Perhaos this issue would he 5est left for -esolution throuch accrooriate leoal c5annels. We 5elieve t5at such flexibility will he recuired fo* existino tailinos discosal sites. We would crefer to see administrative flexibility in accrovino orocosed alter 9atives used "scarinoly". We helieve that this would have a "et effect of ensurino the uniform and consistent acolication of standards for uranium mill tailings so as to ensure ccmoatibility with recuirements of the SWDA.
If we can be of further assistance, or should you eouire clarification on any of these coments, please feel f ee to contact me. or Ken Harois of my staff, at (505) 984-0020. Sincerely, hw 77W 2enise Fort Director GF/FP /cyo . cc: "onald A. Nusshaumae. ';RC Asst. Dir. for State Acreement ?-co-ans Dichard Younc. '.**EIJ. Lecal Se"v ces %reau i Xe9 Harcis, PEID. Chie#. Radiation ? otection Eureau Felix R. Mie-a, WEID. Radiation Protectinn Bureau Tony Orvoolche". NMEID. Chief. Grount' Wata" and Mara-dous Waste 3ureau
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U.S. Wclear Pegulaterf Cmmissicn h~ " - - - ' Washingten, D.C. 20555 Atten* % : Docketing and Service Brand. Pa: 49 FMad Fagister 46425, McVexer 26, 1984 Cear it. Chilk: EcrnestaJe Mining Ca:pany M like tc take this cpperr.mity te express its supocr. fcr 9.cse cc:tmnts sue:nt.ed by 2.e Amer:.can Mining C:ngress (MC) en the Nt.iclear Pegulater/ Camissien's advanced Motice of P cpesed Pule:rak:.ng en Uraniu::t Mill Tal. lings; Grcund trater P: tecucn and Other Issues. '"t.e c=ments presented by the MC reflec e.e cencerns felt by :t res-dce en this ccst 1 ecr: ant ratter.
- tr:estake Minine Cm=any acprecaces e.is ccper .:nity ::
=rnent en tailings ccnfer:ance issues.
If ycu have any gaestiens, please fc net hesitate : centact Ce.
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% The Honorable Samuel J. Chilk Ralph E. Bade 7 Secretary of the Commission vec chvman and chirman.
U.S. Nuclear Reculatory Commission
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vue cMemen: Chanes F. Bareer Geory 8. Munroe
Dear Mr. Secretary:
Pwm Gousseland Robert H. Quenca n.Jr. Re: NRC Advance Notice of Proposed 1"",o E.A o sarnue: K. scowl Rulemaking; Uranium Mill Tailings; nomm o. a new Ground Water Protection and Other jTLoo. 2,. Issues (49 Federal Register 46425, November 26, 1984) Sarerarr and Treasurer.- Hentv i. Dwersnak D'='ar' Enclosed are Ccmment3 of the American Gmry S. Munme.New York Mining Congress (AMC) on the referenced Nuclear P. MalczemotT. New York Regulatorv Commission (NRC) proposal. Car es F. Barbet. New Yort * ' oie sennen. fr. Cevet*ad Rocert #. Hutton. Greenwich AMC is an industry association that encom-Richard A. Lenon. Northbrook IL RMoe E. Badev. War:*.nston passes (1) prCducers of most of America 's setals, Samuet K. ScoviL Ceveland uranium, Coa 1, and industrial and agricultural minerals; (2) manufacturers of mining and mineral nomm A Holines. WoodcWT Lde NJ . Pm,A A.M . dson. San eranciscoGmuund.preenwwn proceS$ing machinery, eCuipment and supplies, and * (3) finanClal institutions and engineering and Roben H. Quenon. St. Louis Raio4 F. Coz. Denwn Thomas D. 3 arrow. Houston Fr.ns A. McPherson. Oklahoma Ccy Consulting fir.IS that serve the mining industry. I,^,,,rG
$ D ' ,uo, If you have any questions en the matters Cann A. camonea. Jr.. chase Harry M. Coriger. San Francmo raised in AMC's ccaments, please contact Larry A.
Roeert M. Mct ann. Sethleners Soggs of aY staff (861-2876), Who has responsi-R< nard G. Mer. Jr chicsso bility fcr this issue. Uaner E. Ouuerman. Jr Ossland R.J. Gar Frana v.y. Catlas
- McMaen. Denbury Lort Citheros. London Sincerely, Kennets J. 3 art. Enswwood CO '
A.W C,dder. P ttsourgn Gino P Giusta. Starnford R. aron L Henneonca. New Yort e
- Vaam G. Keget Indana P A Joan A. Wnent. Carton Mo J. Allen Cverton Jr.
Rooert McInnes Ceveland President Douans J. SourM. Houston C J. Conway. Los Antenes R.amoed M Ingrain. Houston James R. Yotsmet. Cadas Mince H Werd. New Yort Rew o norno.on. Cevnand Enclosure las MacGregor. Greenwwn ' % T Ca nma. Greenwwn *
- fnur=nate Past Chairman 0: D
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AMERICAN MINING CONGRN COMMENTS RE: ADVANCED NOTICE OF PROPOSED RUT.RM A RTNG URANIUM WTLL TAIIJNGS REGULATION; GROUNDWATER PROTECTION AND OTHER ISSUES (49 Fed. Reg. 46,425, November 26, 1984) The American Mining Congress (AMC) submits these comments on the Nuclear Regulatory Commission's (NRC's) Advanced Notice of Proposed Rulemaking (ANPR) to conform its regulations fcr 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 are of critical importance to these producers because the regulations will govern the operations of the entire domestic uranium processing industry from the day they are effective through closure, decommissioning and final stabilization of tailings sites. When implemented, NRC's regulations will impose costly levels of control on a severely depressed uranium industry. Thus cost effective methods of control which provide appropriate protection to the public health and safety and to the environment from any potentially significant hazards associated with uranium milling must be the focus of NRC rulemaking activities. On November 26, 1984, NRC published proposed modifications to its existing mill tailings regulations contained in Appendix A to 10 C.F.R. Part 40 for the purpose of , conforming them to standards issued by EPA on September 30, 1983 (49 Fed. Reg. l l 46,418-46,425). On the same day, the Commission published an ANPR regarding NRC's 10 C.F.R. Part 40 Uranium Mill Tailings Regulations for Groundwater Protection and Other issues (49 Fed. Reg. 46,425-46,428). According to NRC the future rulemaking proceeding for which the ANPR was issued is 'primarily intended to incorporate groundwater protection provisions and other requirements established by the
Environmental Protection 8ugency (EPA) for. similar hazardous wastes into NRC regulations." M at 46,425, col. 3 (emphasis added). According to NRC, '(t).is action is necessary to make NRC requirements similar to EPA standards as required by provisions of the Uranium Mill Tailings Radiation Control Act. & The comment period for' the ANPR was to expire January 25, 1985 but NRC agreed to extend its comment period on the ANPR to March 1,1985. On February 11, 1984, AMC submitted extensive comments to NRC on the proposed amendments to Appendix A. Diese comments challenged NRC's assertion that the proposed changes in its regulations are " essentially nondiscretionary in nature" and are " legally mandated in Section 2"5b(3) of the Atomic Energy Act, as amended." 49 Fed. Reg. 46,421 (col. 2). AMC demonstrated that EP A'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
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jurisdiction under AEA,l_/ as amended by UMTRCA_/, 2 to promulgate " generally applicable standards" and intrude on authority reserved by Congress to NRC's discretion. Since, EPA's standards are not " generally applicable standards" as defined in both AEA and UMTRCA, the standards are a " nullity" having no legal force or effect and NRC is not required by law to conform its requirements to EPA's standards. (AMC Comments at 4-6). 3 As the " lead" agency charged with implementation of UMTRCA_/, NRC is under a mandatory, nondiscretionary duty to carry out faithfully Congressional Intent in that 1/ Pu'b. L. No. 33-701, 68 Stat. 919 (1954). 2/ - Pue. L. No. 95-604, 92 Stat. 3021 (19"S). 3/ H.R. Rep. No. 1480, 95th Cong., 2d Sess.13,15-16 (1978). 2_
. e 9 Act. To do otherwise would be an abdication of its responsibilities under UMTRCA.4/ As AMC noted, NRC is not obligated to adopt gL 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 provisions of UMTRCA
- all in conflict with fundamental principles of administrative law. De mere issuance by EPA of mill tailings standards cannot alter NRC's obligations. EPA cannot by regulation confer on itself any greater jurisdiction than it has under UMTRCA or alter the obligation of NRC to adhere to Congressional intent in that act.5,f (
With respect to the regulation of groundwater UMTRCA conformance requirements for NRC are, indeed, specifle. NRC is required to develop regulations which conform to the " applicable general standards" for disposal of "similar hazardous material" regulated by EPA, under SWDA as amended. 42 U.S.C. 5 2114(aX2), (3). Since no EPA SWDA standards exist which are applicable to what the ANPR refers to as "similar hazardous wastes", NRC cannot adopt all or any portion of EPA's chemical waste management regulations without a detailed analysis and corresponding justification to demonstrate their applicability. To do otherwise would conflict with NRC's responsibility to exercise its best " independent technical judgment" in considering the risks and costs as intended by Congress. (AMC Comments at 34-35.) An examination of the ANPR reveals that it is founded on the same flawed premise as the Appendix A rulemaking proposal. De questions posed in the ANPR assume that NRC must incorporate EP A's SWDA chemical waste groundwater 4f Atchison. Topeka & Santa Fe Railway Co. v. ICC, 607 F.2d 1199,1203 (7th Cir. 1979); Umteo States v. City of Detroit. 720 F.2d 443, 451 (6th Cir.1983). 5/ Office of Consumers Counsel v. FERC, 655 ?.?d 1132,1148-1149 n.32 (D.C. Cir.1980).
.. -1
requirements, arbitrarily made applicable to uranium mill tailings by EPA, into ~NRC regulatiens as "SWDA comparable" requirements. NRC apparently also assumes that no additional environmental assessment beyond that contained in EPA's support documents 8_/ and perhaps NRC's Final Generic Environmental Impact Statement (GEIS)7_/ will be required. 49 Fed. Reg. 46,423. As noted above, any such assumption would result in NRC abdicating its Congressionally mandated legal responsibilities as the'" lead" agency in tailings management to make an tdependent technical assessment" of the potential hazards and any necessary control measures. This is particularly true considering the following: (a) The differences between current NRC groundwater regulations contained ' in Appendix A to 10 C.F.R. Part 40 and based on analysis and assessments in NRC's GEIS and the EPA chemical waste standards; (b) The comments filed by NRC with EPA during its SWDA rulemaking which Indicate NRC's opinion that EPA's SWDA chemical waste proposals would be inappropriate for control of potential groundwater hazards associated with uranium mul tailings (AMC Comments at 77); (c) EPA's admitted failure to assess the potential hazards associated with the groundwater pathway from uranium mill tailings piles because of its incorrect reading of the requirements of UMTRCA. (AMC Comments at 74-75); 3 also Attachment A. s (d) The legislative history of UMTRCA wherein Senators Randolph and Domenici indicate that a duplication of efforts is not desirable and that 6] Environmental Protection Agency, Final Environmental imonet Statement for Standards for the Control of Bveroduct Materials from Uranium Ore Processinst, Volumes I and Q, (September 1983).
*/ NRC, Final Generie Environmental Imoact Statement on Uranium Millinit, NUREG-0706 (1980) (hereaf ter cited as 'GEIS").
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no EPA standards may be necessary if existing NRC requirements already provide sufficient protection (AMC Comments at 74-79). Thus, before adopting any of EPA's groundwater control requirements, NRC must do a full fledged analysis of the groundwater pathway and the significance of the risk, if any, posed by seepage from uranium mill tailings through that pathway. (AMC Comments at 33-34). Finally, since NRC has based the questions posed in the ANPR on the adoptien
- of EPA's requirements,'NRC has presented no findings, studies, comparisons, alternatives or preferred approaches. On the one hand, this so narrows the scope of inquiry that no purpose would be served by AMC attempting to respond beyond the comments "
{ contained in its earlier submission to NRC on Appendix A. On the other hand, the i ANPR questions are so unfocused that a cogent response would be difficult and of I questionable value. NRC appears to be abdicating its responsibility to apply .its best l " independent technical judgment" to develog rules and instead asks members of the
- l j public, in the most general sense, to tell .it what should be done but only within the
, constraints of EPA's standards. AMC member company representatives would be happy to meet with NRC staff as soon as possible to discuss focusing the consideration of potential groundwater controls for uranium mill tailings. AMC believes that such discussions are necessary to assure consideration of these complex technical issues given the limited resources available 1 at the present time within the severely depressed domestic uranium production industry. t i i e 3
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Re: Uranium Mill Taf'* gs Regulations ANFR, 49 FR 46425 . L Enclosed are de Colorado Department of Heald's coc=ents at this ti=e on Part I;; of de Advance Notice of Proposed Rule =aking, 49 FR 46425.
~41th respect to part II, Cocsission Author 1:7 and Responsibility, (49 71 46427), the Depart =ent agrees that NRC and Agreement State authority does not require obtaining concurrence of the EPA Administrator in any site specific alternative which satisfies NRC or Agreement State require =ents for the level of protection for public health, safety, and the environ =ent fres radiological and non-radiological hazards at uranius sill tailings sites.
Please note the reservation, expressed by the Department in its letter of January 8,1985, concerning the generic flexibility added under Sec. 84c of the Atomic Energy Act. Department Radiation Control Division staff look forward to closer co=munication and participation as NRC staff = ore fully develop NRC's regulatory approach, so that a state task group can provide timely input when proposed rules are presented. Sincerely, Alber: J. Ha:1e, Director Radiation Control Division 3 A."4 : s es
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Dear Mr. Chilk:
-(49 F2 4la425)
In acenedance with See:1cn 309 of the Clean Air Act and in keeping with our respcnsibilities under the Solid Waste Disposal Act (SbDA) and the Uranium Mill Tailings Radiation Centrol Act of 1973 (UMTRCA) the U.S. Environmental Protection Agency (EPA) has reviewed the U.S. Nuclear Regulatcry Ccmmissien's (NRC) Advanced Notice of Procosec Rulemaking for .. Uranium Mill Tailings Regulations; Groundwater Pro .ecticn anc Otner Issues (10 CFR 20,,29 FR 46425). EPA previously commenteo en the comoanien NRC Proposed Rules for Uranium Mill Tailings Regulattens; Conforming NRC Retuirements :n EPA Standards (49 FR 26418). A copy of the earlier comments is enclosec. Many issues are common to both nntices. Ra:ner : nan repeating :nen here, we refer to our earlier comments, including, but not limited to, the ciscussions (page 1, paragraph 2) on the scoce of NRC's rulemakings anc (page 2, paragrapns 1, 2, 3, and 4) en NRC's statement of its authority and resocnsibility, a s recuested in the ANPR, we have ccmmentec en ene two broad issues: pnysical stability and grouncwater protec icn recuirements and nave also andressen the specific questiens contained in :ne ANPR. A. Dhysical Stability Recuirements The ANPRa recuirements, does not reflect the nature of EPA's pnysical stability s explained belnw, EPA's numerical standard for icngevity is expressed differently frem, but not necessarily inconsistently witn, the prescriptive elen:ents of NRC's Appendix A recuirements. Indeed, E?A relied on the same analytical wort that MRC used unen NRC scugnt to ::nfirm
- ne accrocriateness of its cwn prescriative provisions 50 assure pnysical stability of tailTngs piles. From NRC's Own wor < ("Cesign Considerations for 1.ong-Tern Staoili:ation of Uranium Mill Tailings Imocundments," ty J.D. Nelson, et al . , NURIG/CR-3397, October 1983), we concluded that there is lit:Te lit'ference, if any, cetween a reasenacle implementation 8503190097 850300 PCR PR 40 49FR46425 PDR D5/0. -
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M :ch 1, 1985 CDLORADO DEPAl*'.fE r CF :.IAL*3 Peg 3 i COMMEv"S ON 10 Cy1 40 ANFR. CRCC'TD *iA*IR ?o0 TIC 20N AI URAN M MIII,5
., 1. *he Departnant, based on recent reviews of the existing Cotter Corporation Canon Ci:7 nill and de Usecco Minerais Corporation existing Oravan sill and proposed new disposal area, offers the following general ecm=en::
de more de de d *-***cus and wording of both substantive and procedural requirements for ground water protection (between YRC and I?A. rules) are
'kept comparable, the more consistently day vill be interpreted and applied by licensees and regulatory agency staff.
- 2. Because the Department has only relatively recently (November 1984) obtained full author 1:y for de S*4DA/ RCRA permits program for hazardous materials (through the De'partment's 'Jaste Management Division) and because Colorado's Water Quality Control Commission and Division are in the siddle of developing a ground water protection strategy and regulatory program for the state, detailed comments on 1: ems III (1)-(7) will not be provided at this time.
With respect to item III (3), some consti:uents could be excluded if not ~< present in the ores being processed. ~41 h respect to 1:en III (7), see the enclosed Supplement pertaining to Spring Creek Mesa new disposal. Ihe Department considered on a site-specific basis that a single clay liner with redundant leak detection sight be an acceptable alternative to a dual liner system.
- 3. Regarding item III (8), because of past difficulties in achieving sufficient,well coverage by location and proper construe:1on, sampling, analysis, and reporting, for the Canon City and Uravan facilities, the Department advocates nic*,g requirements more explicit in the rules, 'so long as an alternative of case-by-case flexibility is also provided.
- 4. Regarding item III (9), the Depar:sent will benefit from any required federal environmental impac: review in that the Departsect would use the information and findings in support of revisicus to Colorado's ' Rules and Regulations Pertaining to Radiation Control". For this reason, cogent analysis would be of value to the Department for both radiological and nonradiological contaminants capable of nigrating out of control via groundwater.
- 5. Regardi=g 49 FR 46428, III (10) (49 FR 46426, 2d column), the Department recommends against altering the no active maintenance, below grade disposal, and radium limit in cover =aterial provisions of the present rules.
- 6. *he Department recommends from its experience tha: the prese:1ptive requirements for zinimum standard design features remain in NRC's rules.
*he September 1980 Final Generic Invironmental Statement on Uranium Milling amply supports such prescriptive requirements. Research reports and regulatory guides developed since de GIIS was published confirm dat
- nese broad design features can be specifically, readily, and flexibly applied on a site-by-site basis. Please see the enclosed Pre 11sinary '
Ixecutive Licensing Review Summary for de Uravan sill, Chaptars 5 and 9 in particular.
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.E. i of EPA's longevity standard (design to provide reasonable assurance of centrol . . . to be effective for 1000 years, to :ne ex:ent reascnably acnievable, and in any case for at leas: 200 years) and NRC's existing longevity rule'(isolate tailings for :ne'usancs of years). The EPA included l
a presentation in its FEIS demonstrating that regarcless of the lengevity considered (i.e., 200 years,1000 years, greater than 1000 years), tailings disposal schemes must be designed to withstand the Probable Maximum Flood (P"F). Suen designs would be consistent with the prescriptive requirements already adcoted by NRC, such as: minimizing the uostream drainage area; siting where there is good wind protection; provicing relatively flat 3 slopes; and specifications for long-lasting rock covers. NRC regards EPA's standards as " performance standards," but EPA's . longevity standard is not a performance standard as NRC uses the term. The standard is quite similar to Jmportant nonprescriptive elements of NRC's i existing Appendix A requirements in that it specifies performance cbjectives ' for the design of tailings disposal systems. NRC has established prescriptive requirefaents as a means of imolementing certain ncnprescriptive elements of such designs. We do not agree that conforming NRC's recuirements to the EPA i standard recuires enanges in NRC's existing prescriptions. Inceed, UMTRCA specifically reserves such specifications to NRC anc these NRC detailed tecn-
- nical recuirements are therefore not made sucerflucus by their being absent
, fecm EPA's standards. Ratner, these provisions are consistent with the j standards and useful for their imolementaticn. They shoulc be retained. The ANPR suggests that tne institutional control provisiens of EPA's standards are inconsistent with NRC's Appendix A requirements. We disagree. With respect to active maintenance, EPA noted in f:s Preamole :nat institu-tional controls can play a "useful secondary role in succlementing passive controls and in assuring during the early period of discosal :Nat passive , centrols are adecuate to achieve Oneir design oefectives" (18 F.9. 35936), i EPA's belief enat institutienal c:ntrols c:ula serve as an " essential backuo to passive controls
- does not imply, as NRC appears to conclude, nat EDA autneri:ed reliance en institutional measures. Ratner, EPA required :nat :ne tailings cover itself be designed to provide reasonable assurance of. long-term control. Such control, as a matter of design, is to he afferced by passive means. (This longevity recuirement for radiological na:ards is not diminished by separate accitional requirements for nonradiological ha: arcs.) Consistent witn ' Congress ' intentions, however, E?A recogni:ed na: institutional measures could and snould te emoloyed :s remedy :Me situatien if a cover sncula f ait :o per#crm as designyu. The oiscussicn in NRC's ANPR, :nerefore, dces not provice a suf#icient basis for enanging NRC's existing reuuiremen: sconibi:ing planned reliance en institutional measures, and this requirement snould be retainec.
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- 3. E?A's Groundwater Protec:icn Strategy The regulations pecmulgated my E?A uncer Subti:le C of RCRA were designed to' address contamination of grouncwater by hazardcus wastes. By adopting and imolementing standards equivalent to these EPA regulattens, NRC will fulfill its responsibilities for One protec:icn of grounewater.
EPA nas published a "Grouncwater Protection Strategy" (cite), wnien may be used as the basis for amendments to the Agency's regulaticns and as guidance in implementing these parts of one RCRA regulatory seneme that allow for administrative decisions about the appropriate level of groundwater cleanup. A copy of the Strategy is enclosec for NRC's information. NRC may wish to consider the estaelishment of additional groundwater protection requirements based en the Strategy. . C. Responses to Specific Questions (numcered as in :ne ANPR) (1) "Should the SWDA-comparable recuire-ents to be placed in the . NRC requirements be explicitly restated to crecisely cuolicate EPA's language or shculd substantive recuirements be paraphrased?" Resconse: The ANPR' states that NRC dculd review "E?A's SWOA regulations, including Suepar A (except Section 262.3), 3, C, 0, E, F, G, H, J and X . . . in develcoing a proposal to detemire wnien of :ncse requirements dould need to be incorporated in NRC regulatiens* :o ccnform to EPA's SWOA regulations in ecmpliance with Section 44 4 (3). This and other language of the ANPR is unclear concerning :ne degree to anich NRC intends to conform its regulations to SWOA recuirements. Section 34a(3) states that NRC should adopt conforming regulations :na: are "to One maximum extent practicable, at least c:mparacle to" EPA recuirements under one SWCA. Relevant EPA recuirements incluce :nese in all Of the Subcarts mentioned above, as E?A noted in its preamole (48 Fed. Rec. 45942). 9y precisely dup}icating EPA's language, NRC will ensure uniformi y between the regulations. Paraohrasing sucstantive sections c ulc possibly lead to erroneous or multiple interpretations of tne regulations anc snculd be avoided. To avoid this, we recemnend that substantive sections of EDA's regulations be exolicitly restatec, exceat wnere :ne NRC and epa regulations will.te different in acministrative isoects (e.g., :ne use of
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(2) "Should all of Subpar: F te inclucec? Pa: sncaic 1ot be included?" Resconse: Sucpart F provides a : morenensive requiatory mecnanism f:r grouncwater protec 1cn. EPA accpted parts of Succar: F in its stancards for mill tailings. Otner car:s ancress substantive issues of can:ral relevance to imolementing the s:andards and o ecmolying itn :ne recuirements of Section 344 (3) of :ne AEA. It is our ooinion :na: all of Succar: F snould be indluded in the NRC Regulatiens.
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4 (3) "What snculd te included in a listing of nazardeus constituents for mill tailings to re: lace ne 375-item long lis: in accencix VII to 40 CFR Part 251 referenced in 40 CFR 254.93? Sheule cens:ituents no: usually present er not present above trace levels de incluced? What criteria snculd be appliec to cecide wnat c:nstituents snould be inclucec?" Resconse: Under 40 CFR 254.93(b), a procedure exis:s for excluding Accenc1x VIII c:nstituents frem the list of hazardous constituents ~
- specified in the facility permit. NRC shculd use the criteria specifisc in 40 CFR 254.93(b) to exclude any constituent tna it feels is not appropriate to mcnitor for at specific uranium mill tailing sites. Mcwever, a generic waiver under Section 254.93(b) could be a very difficult cemonstration. We note that " hazardous constituents" are those
- nat have been detected groundwater underlying a regulated unit and that are reasonably expected to be in or derived from waste in the unit. 5 4 is currently l reviewing the Appendix VIII list in order to deveico a better list of j constituents for ground water monitoring at RCRA facilities. We wculd be glad to snare nis list witn NRC wnen it is available. s (a) "NRC m st establish SWOA-C0mparable recuirements Oc the maximum
- extent practicable. In this centext, wnat is practicaole given current practice and One current state of technology?"
Rescense: Ccngress intanced that ncnradiological hazards of tailings net te suoject to less control than are similar ha:ards from wastes regulated under the SWOA. The requirement to te n least c0mparsele to , j Ip* 's SWDA recuirements, "to ne maximum extant cracticaele," coes not i estaclish current practices or technologies as incecendent limits on
- 1RC's coligation. EP A knows no reason any recuirements anc pro:ection cae:araole :o : nose for wastes regulated uncer :ne $'rtA are impracticaole d
er uranium mill tailings. (5) "Snould NRC retain :he basic sequence emeocied in Subcar: F anere licensees ano detect grounawater centamina:1cn progress :nrougn a ( graduated scale of action, from cetecticn ment : ring, :nreugn como11ance tenitoring, and on :ne corrective action, niin significant :ime ceiays allcwee :etween steps anile plans and programs are being develcoed, aeviewed, and imolemented? Would it be advisaole, oracticaole or ac:rcoriate to recuire, for example, that all 1RC licensees have accrovec
- moliance mont:3 ring scograms tnat are aut:matically activated anc in:lementec nen neecec?"
Resconse: We believe :nat ne grounc water eenitoring and resoonse secuence emeccied in Suboar: F is a logical scogression of activities [
- sa: :rotects numan neal:n anc tne envir:nren: an.c at trat same : me '
4 all:ws for flexibility. Under ina secuence if na:ardous constituents ! 'r:m a regula:ec uni: 9 ave act entered the ;rcuna water, nan a dacility mus: at leas nave a cetec:1cn monitoring program. This is :o ensure j i l l r w ---=w.. -rw--,r
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- nat any leakage free :ne f acility is cetected. Once na:arccus cens:ituents accear in the grouncwater, :nen, at a minirun, a ::moliance moni cring
;r: gram is necessary to cecide if ground water :er'Ormance stancarcs have 3een exceecec. If stancarcs nave been exceeced, then a corrective acticn program is locically recuirec.
The NRC should be aware :nat :ne meni : ring anc res:ense acticns are not necessarily independent events with significant celays between each step. The permit may contain a comoinatien of any of the three programs and specify the concitions under whicn each' will be met (see s254.91(b)). That is, a permit may contain detection monit: ring, c moliance monitoring, and corrective action, with criteria alreacy built into the program to trigger the next step autcmatically. This will avoid the delays referred to in the NRC question. The NRC suggestien of haying acproved comoliance monitoring programs is a commendable rec:mmendation. The preamole to Suepar: F regulations (47 FR 32291, July 25, 1982) discusses this icea along witn :ne suggestien 4 of a corrective action plan that c:uld be triggered by ne occurrence of scme event (e.g., the acoearance of contamina:1cn). (6) "Snculd the basic SWDA scneme for tne tining and duraticn of a
*cemcliance* period, a " closure
- period, and a *;ost-cicsure care
- period be maintained? What modifications, deletiens, additions sncula be made?"
Rescense: The EDA standard (40 CFR 192, Succarts 0 and 2) scecifies two time periccs tnat are not :ne same as in :ne SWCA regulations. Section 192.32(a)(2)(iii) requires :na: detection ment cring crograms be c:moleted (in operation) wi:nin ene year of pr:mulga:icn of :ne stancard. Sectica 192.33 recuires tnat any corrective action program be cut in:0 coeration as soon as practicaole, and in no even: later than 18 men:ns . af ter a finning :nat :ne standar:s of Section 192.32'a)(2) are exceeced.
'n accition, tne ?reamole for Suboarts D anc ! (48 ~.R. 45942-3) discusses reasons wny 'IRC mign: establisn closure anc ;cs:-closure pericas for uranium mill tailings piles :nat are differen fr:m :ne SkOA requirements for nazardous wastes. The Preamole also nctes :na: establisning tne c:mpliance pericc is an NRC rescensioility. All :nese NRC actions, newever, must ce comoaracle, to the maximum extent cacticaele, to ??a's requirements under the SWOA.
,) "To anit extent. 9cw, and uncer aca: c:nci-tems sacule leak l detecticn systems uncer single-licer inocuccrents :e aII:wec to fulfill tne requirements for a detection monitoring program *nat 0:nemaise recaires a menit: ring well in : e accermost acuf fer."
Rescense: We rec mmenc na in no case sacute ieau :etacticn 1;/ s t ems uncer single-if ner imocundments be alicwec : 'ul' Ne :etec-*Cn monitiring program. Because suen lear ce action sys ems are not J
c - 9 sufficiently reliable they do not represent acecuate safeguar:s for cetecting contaminaticn of :ne grcunc water. Therefore, if NRC allcws use of such systems, it should document its reasons for believing they will be adequate. (8) "How detailed should NRC's regulations be, and what should and should not be required in areas such as well construction, sampling and sample analysis, determinaticns of annual average and seasonal background concentrations, minimum detec-ion levels, statistical treatment of data and determinations of statistically significant dif ferences, recorckeeping and reporting, quality assurance, etc?" Resconse: We recommend that NRC regulations be at least as detailed as the Sucpar: F regulations. EPA addresses many of these subjects in guidances en how to comply with Subpar: F rules. However, we recogni:e
- hat many of these areas recuire further resear:n and development efforts. <
EUA is involved with several projects to pre:are additional guidances in many of these areas. We would be glad to share these guidance documents with NRC upon availability. NRC should maintain flexibility in its . regul.ation and continue to coordinate with E?A en these issues. (g) "To wnat extent mus: NRC provide supoorting environmental imoac analyses considering the nature of the re:uirements under cens'ideration, scme of which have already been f ?.ccsed by EPA and are
. effective? If supporting environmental evalua:icns are needed for SWCA-ccmaaracle rule :nanges except for ne requirements already imcosed my the EP A, should One NRC continue to proceed witn only a single rulemaking to estaclish a ecmplete set of SWDA comoaracle recuirements?"
Resocnse: EPA celieves that little new supcor:ing cocumentaticn is needec for enese SWDA-comoarable rule enanges, acar from wnataver tecnnical analysis may be needed to es aolisn c mparacility, because One regulations at issue imolement environmental and neal:n pr:tection decisions that have already been made in E?A's and NRC's previous male-makings. Occumentation developed in the previous rulemakings (e.g., ED A's FE!S, EPA 520/1-33-008-1 and 2, and NRC's FGE:3, NUREG-0706), NRC's site-specific environmental statements for uranium and :horium mills, ane. otner literature related t'o NRC's and EP A's waste management programs, provide
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an amole basis f or such new rules. (10) "Is :Me flexibility :ited in the pr osed adci ion to :ne incrocuction of Accendix A 10 CFR 3ar: 40 sufficient or snould :ne NRC ceveico and succor: acci icnal mocifica: ions :o ::nf:rn :: :ne :nysical stacility ascects of the EPA stancard?"
.. - l Resocnse: We have discussed the extent of "RC's flexicility uncer Section dec in Our previcus corrents. EPA Selieves :na: :nis flexibility can be implemented by incorporating the language of See:1 n Sec in :he introduction to Accendix 1, as NRC nas procesec. We suggest, newever,
- nat NRC establisn a mecnanism to provice cuolic netice and an opportunity for comment wnen Section Sac is to be acplied.
- n view cf :ne site.
scecific nature of Secticn Sac, further.rulemaking to es:aelish general alternatives to existing general NRC recuirements seems inacar griate. If you have any questiens concerning EPA's comments, please call Dr. W. Alexander Williams (382-5909) of my staff. Sincerely,
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Allan Hir ch Director Office of .:ederal Activities c Enclosures 9 O e
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Tennessee Valley Authority (T/A) is pleased to provide ec=ents en the ~~ d ~2 proposec rule to 10 CFR Part 40 concerning ursad"~ -i tailings as noticed in the November 26, 1984 Federal Register (49 73 46425 36428). We believe that any revision to the rule necessary to confers to ground *4ter protection require =ents established by the U.S. Environ = ental Protecticn Agency (EPA) should ensure that NRC =aintains licensing flexibility. Censistent with Secticn 84C of the Atocic Energy Act, the flexibility would allcw NRC to use its tiseretien in the review and approval of site-specific alternatives to IPA standards provided that such alternatives satisfy NRC require:ents fcr protection of public health, saf ety, and the enviren=ent. Enclosed are TIA's spevific responses to the 10 questions on the pecposed rule requested by the Oc=sissica en 10 CFR Part 40. We appreciate the opportunity to ec=ent. Very truly 7 curs, ENNESSEE 7 ALLEY AU"'HCR17Y {seJ. V. Su[".am, M.anager Licensir.g and Regulations Inclosure cc (Inclosure): Executive Secretary Advisory Cc=mittee en Reactor Safeguards U.S. Nuclear Regfatory Oc==ission Washington, D.C. 20555 Mr. Tem Tipten A.:, Anc. 7101 Wiscensin Avenue 3ethesda, Maryland 20814 Ack'wwed by card.. MAR 2 $ "r9EE
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Cncicsure T'la Restense to 10 CyR ? set 4C - Grcund Water Pretecti:n and Otner :ssues . Ouestion i: ' Should the SWDA-ce: parable requirements to be placed in SkC ' regulations be explicitly restated to precise'y duplicate ! I?A's language, er should substantive requirements be ^'. paraphrased? -
-.n Response: Substantive requirements should be ;araphrased because all provisions in SWDA are not ;ertinent to sill tailings disposal.
Ouestion 2: Should all of Subpart F te included? What should not be included? Response: Only these portions of Subpart F which are directly appli:able to the unique nature of uranium =ill tailings should be included. Question 3: What snould be included in a listing of hazardous constituents for mill tailings to replace the 375-item list in Appendix VIII to u0 CFR Part 251 referenced.in no CFR 254.93? Sheuld constituents not usually present er not present above trace levels be included? What criteria shculd be applied to decide what constituents should be included? Response: The entire list in Appendix VI:I to 30 CTR Part 251 need not be included in a listing of hazardous constituents. Only thess hazardous constituents thht could reasonably be expected above trace levels in mill tailings waste should be included. ! The license could contain a listing of hazardous ~ constituents for each specific site which would be based.on an examination by the Commission of the mill design and components of cre(s) to be milled. A site-specific listing could eliminate the requirements to monitor constituents that are not expected to be present or present above backgrcund. Question 4: The NRC must establish SWDA-comparable requirements to the extent practicable. In this centext, what is practicable given current practice and the current state of technology? Response: No comment. t P i
F Ouestien 5: Should NRC retain the basi: sequence e=bedied in Sutpart ? wnere li:ensees vn: detect greand water 00ntaminati:n ;r:gress througn a graduated scale of action fr:: detection :enitoring, tnrougn Oc=pliance =cnitoring, and On to corrective action. witn signifitant tire delays all wed tGtwssa iteps anile plans and pr0gra=3 are being devel0 ped, reviewed, and imple ented? Wculd it be advisable, practi:able or appropriate t0 require, f0r exa:ple, that all NRC licensees have approved ec=pliance
=cnit0 ring progra:s that are aut0=atically activated and 1 plemented wnen needed?
Response: The basic sequence e: bodied in Subpart ? should be retained. As part of the license require =ents, the Cc =ission should be prepared to 1 pose aut0:atically activated =enitoring programs. The cc plexity and scope of the =enit0 ring progra:s for each licensee should be based upon individual design aspects and site conditions. ' Ouestien 6: Shoulc the basic SWDA sche =e for the ti=ing and duratien of a "ce:pliance" period, a " closure" period, and a " pest-closure" period be =aintained? What =edifications, deletions, additions should be cade? Response: The basic SWDA sche:e for a 00=pliance peri 0d and closure per10d care should be aintained consistent with the =aterials licensing process. Question 7: To what extent, how, and under what conditiens should leak detection systems under single-liner impound ents be allowed to fulfill the requirements f0r a detection =cnitoring program-that otherwise requires a monitoring well in the uppermost aquifer? Response: ~4e believe that the need for leak detection systems and senitoring programs should be determined on a site-specific basis. Question 8: How detailed should NRC's regulations be and what should and should not be required in areas such as well construction, sa:pling and sample analysis, determinations of annual average and seasonal background concentrations, minicu: detection levels, statistical treat =ent of data and determinati0ns Of statistically significant differences, recordkeeping and reporting, quality assurance, etc.? Response: The details Of a conitoring progra=, =ethodelegy, statistics, and quality assurance would be : Ore appropriately addressed in the individual licensing process rather than specified in the regulations. O
e ._ ? Ouestion 3: To wha; extent =ust the NRC ;revide sup;cr:ing envircr.= ental 1 :act analyses 00nsidering the nature of the reqaire ents uncer censiderati:n, sens Of which have already :een 1:pesed by IPA act are effective? If supporting envirer.= ental evaluations are needed for SWDA-ce:: arable rule changes except f0r the require ents already i:pesed by the IPA, sneuld the NRC continue to proceed with Only a single rule =aking to establish a ce=ple:e se: Of SWDA-ce parable require =ents? Response: No ec==ent. Ouestien 10: 1s the flexibility cited in the proposed addition to the introduction of Appendix A 10 CFR Part 40 sufficient or should the NRC develop and support additional modifications to confor= to the physical stability aspects of the IPA s andards?
.C Response: The flexibility cited in the proposed addition to the introduction of Appendix A of 10 CFR Part 40 should be sufficient.
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