ML22230A212
| ML22230A212 | |
| Person / Time | |
|---|---|
| Issue date: | 04/19/1978 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M780419 | |
| Download: ML22230A212 (1) | |
Text
RETUR.~ TO SECRETARIAT RECORDS NUCLEAR RF.GULATORY COMMISSION IN THE MATTER OF:
PUBLIC MEETING DISCUSSION OF DRAFT LEGISLATION IN REGULATORY CONTROL OVER URANIUM MILL TAILINGS (78-207)
Place - Washington, D. C.
Date -
Wednesday, 19 April 1978 ACE
- FEDERAL REPORTERS, INC.
Official Reponers 4.d..4. North Capitol Street Washington, O.C. 20001 NATIONWIDE COVERAGc
- DAILY Pages 1-60 Telephone:
(202 ) 347-3700
j :\\
DISCLAIMER This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Commission held on April 19, 1978 in the Commission's offices at 1717 H Street, N. W., Washington, D. C.
The meeting was open to public attendance and observation.
- This transcript has not been rev i e\\*Fed, corrected, or edited, and it may contain i naccu raci es.
The transcript is intended solely for general informational purpose:;.
J;s provided by 10 CFR 9.103, it is not part of the formal or informal record of decision of the matters discussed.
Expressions of opinion in this transcript do not necess3.r-i ly reflect final determinations or beliefs.
No pleading or other paper may be filed with the Commission in c"!ny proceeding as the result of or addressed to any state;:ient.or c\\*,~g~rn1en*t contained herein, except as the.Commission may.authorize.
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25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION PUBLIC MEETING DISCUSSION OF DRAFT LEGISLATION IN REGULATORY CONTROL OVER URANIUM MILL TAILINGS (78-207)
Room 1130 1717 H Street, N. W.
Washington, D. C.
Wednesday, 19 April 1978 The Commission met, pursuant to notice, at 11:15 a.m.
BEFORE:
DR. JOSEPH M. HENDRIE, Chairman PETER A. BRADFORD, Commissioner RICHARDT. KENNEDY, Commissioner VICTOR GILINSKY, Commissioner PRESENT:
H. SHAPAR C. SMITH S. MEYERS 1
lA R. CUNNINGHAM 2
J. MARTIN 3
H. MILLER 4
R. RYAN 5
- w. KERR 6
E. CASE 7
M. MALSCH 8
R. FONNER 9
L. SLAGGIE 10 L. GOSSICK 11 K. PEDERSEN 12
- s. EIPLERIN 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc.
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2 PRO-CEEDIN.GS
.CHAIRMAN HENDRIEs We will come to order, please.
3 I w.ould like.to move forward with the discussion of 4
draft legislation in regulatory control over uranium mill 5
tailings, and there are assorted views and papers f.or the 6
house.
Commissioner Kennedy will return direc+/-ly, and it is 7
suggested that we go ahead.
8 Good morning,,Cliff.
9 Lee~ who_will lead off.
10
.MR *.GOSSICK1 On this Commissioner action paper
.l 1 that is be.fore you, we have, as you point out,. a diversity 12 n.ot a.diversity, but on one particular issue that is involved 13 here,
- a definite spJ.i t in the views between the staff 14 elements.
You have got a memo from Cliff, expressing his 15 viewpoint on *the requirements in his mind for minimum federal 16 standards for states to regulate these mill tailings.
I 17 believe his view is also shared by Bill Dircks, who sent you a 18 memo; and I think OPE comes down on that side of the fence.
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.on the other hand, we-'ve got Howard, who wi 11 20 present the paper, and NRR, Mr. Case and his people and the 21 state programs, with a dif.ferent point.of view, feeling that 22 23 we should not do violence, shall we say, to the Agreement States program approach to this.
24 I think there are good arguments on both sides.
I 25 indicated in the paper that I sent to you that after all the
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3 votes ~ere in I would give you my view.
And to avoid being accused of riding the fence, I think I come down on the side 3
of the paper as written, which Howard will describe and on 4
.which Cliff will present his views, and others you would like 5
to hear from; on it.
6 C0MMISS.l.ONER.GILJNSKY:
That means you are on 7
Howard-' s side?
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.MR. O0SSICK:
Yes.
And Mr. Ryan, who also sent a memo to mei and 1 felt that he should have the benefit of seeing it. I hope it got to you this morning, before the meeting.
Howard?
MR. SHAPAR1 Mr. ~hairman; would you like me to try 14 and.complete this by 12:00, or would the schedule permit that 15 amount of time.?
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.CHAIRMAN HENDRIE&
It would be he.lpful to the 17 Commission if you could.
Why don't you outline the basic 18 thrust.of the proposition?
I think there is, in spite of the 19 flurry of paper in my folder, that there is an agreement *over 20 the substance of the matter, and disagr,ement comes in terms 21 of sort of the legal nuts and bolts of where you attach this 22 and how it is proposed to attach in the statute *. Why donJt 23 you outline this thrust of the proposition first, and then 24 let-'s go on to these differences.
I 25 MR. SHAPAR:
I would say that this agreement is
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more than just the nuts and bolts.
I think it is a 2
philosophical difference.
I wouldn't want to downplay that 3
in this discussion.
4 Just 1or the sstting, 1st me mention that this 5
Commissi.on has to.ld Senator Har.t that it would consider 6
legislation granting NRC authority over tailings and make 7
appr:opriate rec.ommendations to the.Congress.
This is a 8
statement which the Commission has made.
9 Let me also mention, just by way of context, that 10 DOE has submitted.a draft bill to 0MB regarding remedial JI a.ctions to minimize impacts from tailings on impact at the DOE 12 1.3 sites.
I under.stand that bi 11 is, hopefully, on a fast track.
It certainly relates to the subject matter -0f the legislation 14
.we will be talking about here this morning.
15 And finally, by way of context, let me mention that 16 the subject matter of this particular bill is fairly new.
It 17 deals with uranium mi 11 tai.lings.
You are aware there are 18 other areas that are being considered as to where NRC 19 regulatory authority over other kinds of wastes might be 20 expanded.
.Fo,r example;* certain DOE wastes.
Another example, 21 radium and accelerator-produced isotopes, as examples.
22 23 Dne option the Commission obviously has is whether or not it wants to tie all of these things together or, as 24 this particular paper recommends, in view o.f the momentum that 25 is very apparently gathering fast on the uranium mill
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- tailings, chop that part off and move with it on a legislative recommendation basis.
Now, the present regulatory jurisdictional setup is
+/-airly complicated.
I think if we can keep a few points in 5
mind, I think it will sort out the major elements of the 6
problem confronting the Commission.*
The NRC 1 icenses uranium 7
mills in non-Agreement States, by virtue of the fact that 8
source material is being used -
it is essentially a source 9
material license -
and the NRC regulates it under its 10 jurisdiction under the Ato~ic Energy Act and under the 1 1 12 13
.National Environmental Policy Act.
However, the tailings, themse.lves, are not source material.
Thus, once the mill license is terminated, NRS 14 loses Jurisdiction, because nobody posse$ses a license of the 15 material at that p.oint in time.
16 To.complicate the picture 17 COMMISSIONER BRADFORD:
What is the statutory 18
. definition of source material, Howard'?
19 20 21 22 the --
MR. MEYERS:
Uranium for 0.5 percent.
MR. SHAPAR:
MR. MALSCH:
That is. de.fined in the, regulations as 23
.MR. FONNER:
The law requires the Commission to 24 make that definition.
25 MR. SHAPAR:
If you can show a reasonable
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relationship between the safety hazards that you want to regulate, you would have +/-o have a safety reason for doing it or a common security reason or possibly a NEPA reason.
As 1 understand the technical setup, nobody has alleged up until now that anything below.05 has been a safety problem.
Am l right on that:?
MR. MILLER:
If you go below.05, you run into 8
another of complications.
We would get to the point where we 9
are regulating uranium phosphates, we would be regulating 10 Chattanooga shale and a lot of other things.
There is a l t 1 2 1 3 technical p~oblem where you draw that line.
CHAIRMAN HENDRIE:
If you go down a little bit Lower, you can encompass a good part of the. earth's crust 14 within the responsibilities of the Commission.
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.COMMISSIONER KENNEDY:.
1 assume we are doing that.
16 17 (Laughter.)
CHAIRMAN HENDRIE:
We could go back and ask for 18 more manpower.
l 9 COMMISSIONER KENNEDY:
I would suggest, 20 Mr. Chairman, in the interest of some success, something that 21 W& all ought to seek for, we ~ight reverse the process and 22 look at the manpower before we.assume the responsibilities.
23 We already have more responsibilities, as we have indicated in 24 the previous hour, than we can properly discharge now -- a 25
.simple management principle, known to some -0f us.
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7 CHAIRMAN HENDRI.E:
Onward:
MR. SHAPAR:
I think I was starting to say, to 3
compli~ate the picture even further, EPA does have regulatory 4
authority over the tailings after the NRC license is 5
terminated under RCRA, the Resource Conservation Recovery Act, 6
but no authorization over the generation of the tailings, 7
which.NRC does.
8 Finally, the Agreement States side of the picture--
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~HAIRMAN HENDRIE*
Before you get to Agr.eement 10 States; what is.EPA--'s authority, for_instance, over tailings
.1 J piles on the mills that brought in their licenses so they are 12 13 no l.onger being. regulated by NR-C?
MR~* SHAPAR1 I under.stand that EPA does have I 4 authority over those tailings* under RCRA, which is the 15 Resource Recov.ery Conservation Act.
16 COMMISSIONER BRADFORD:
Who did they have authority 17 over.. ?
18 MR. SHAPAR:
It i.s regulatory, and I assume it is 19 Dver the person who owns the disposal site.
20 COMMISSIONER BRADFORD:
Would that normally be the 21 mill operator?
22 23 24 operator.
MR. SHAPAR:
I think it normally would be the mi 11 CHAIRMAN HENDRIE:
Whoever owns the land that the 25 tailings pile is on, and that may be the mill -
ex-mi.11 owner
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or it may very well not, too.
MR. SHAPAR:
The mill operator may have left the premises, leaving someone else as the owner, with no responsiblity le.ft.
Let me say also -
COMMISSIONER KENNEDY:
What does that mean -
- "no re sponsi bi 1 i ty let t.u?
MR; SHAPAR:
I mean no respbnsibility_under our license because our license has terminated; COMMISSIONER KENNEDY.a That.,s correct.
That resp.onsibility, as youJve already indicated, is under the responsibility of EPA.
CHAIRMAN HENDRIE:
Not if he sold the pr,operty to some.body and went.on.
Then somebody else -
.COMMISS !ONER KENNEDY:
The owner of the property, the material, wherever it is, and in whosever custody it is is under EPA-' s regulatory -
MR. SHAPAR:
I assume that person legally responsible for the property is the one who is subject to RCRA.-
I understand EPA has not taken any affirmative action to implement RCRA, up until now, at least.
COMMlSS I.ONER KENNEDY:
That, I gathered; and that is substantive ground for the.~ommission to assert its authorities.
~HAIRMAN HENDRIE:
Go ahead with the Agreements States.
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9 MR; SHAPARz I will summarize very briefly the situation with respect to the Agreement States.
3 It is that our autho.ri ty to regulate the mi.lls and 4
the matter I have described can be and has been assumed by the 5
Agreement States,' pursuant to the Section 274 agreement.
The 6
Agreement Stat.es also outside of the Section 274 set up.with 7
respect to the control and disposal of these uranium tailings 8
do haVe authority under state law to control them, and they 9
have -
all.of the states involved -- have taken s.ome action 10
.l 1 12 13 14 1 5 to assert control over these tailings~
The basic concept of the bill COMMISS !ONER KENNEDY-I Could you say something about their relationship with EPA, as we understand it.?
MR *. SHAPAR-z I think I would defer to Bob Ryan on that~
16 MR. RYAN1 As far as I know, Mr. Chairman, they 17 have used the facilities of EPA and monitoring and so on.
As 18 a matter of fa.ct, when we were out to New Mexico recently, we 19 met with some EPA, people from the regional laboratories, who 20 were moni to.ring both in commercial -- commercially.ope rated 21 mi_ll activities, and also in abandone.d mills on the Navajo 22 reservation.
23 I think Howard is correct; though, that EPA has not 24 asserted this authority under its recently enacted bill.
I 25 think they are waiting -
they have their hands full, also,
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CHAIRMAN HENDRIE:
They do have larger hands.
MR. RYAN:
They have larger hands, indeed, but they 4
have a wide variety of activities which they can assert 5
Jurisdiction under the new enactment:
As far as I know, they 6
have not indicated to us or to anybody any intention to assert 7
primary Jurisdiction over tails.
8 COMMISS !ONER KENNEDY-a. This may be a perfect 9
example of the basic principle I was elucidating earlier.
JO JJ 12 13 MR. RYAN.:
Management and members *
. COMMISSIONER KENNEDY:
You better be sure you-'ve got resources y;ou are going to rush out to get authority to do.
14 MR. RYANa Perhaps Mr. Meyers can talk about that.
15 He formerly ran the solid waste program over at EPA.
He knows 16 the limitations and the numbers.
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.CHAIRMAN HENDRIEa
- Shelly,. what.were you planning 19 20 21 22 23 24 25 to do be.fore -
(Laughter.)
MR. SHAPAR:
Explai.n your. past failures, Shelly, COMMISSIONER KENNEDY-a Now, we understand why you~re here.
(Laughter~>
MR *. MEYERS1 It is not that bad.
EPA is moving.
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. 1 1 12 13 14 15 1 6 17 18 19 20 21 22 23 24 25 11 just happen to have a copy of the proposed regulations implementing the Resour.ce Conservation Recovery Act in this area, and it does include tailings; In fact, it only includes tailings.
With regard to radioactive materials, you might be interes+/-ed in how that works.
The Resource Conservation Recovery Act, section.C of the hazardous waste regulatory program, in order for something to come under the gambit of that law, it has to be -
either appear on a list of hazardous material or criteria that defines thin~s as being hazardous.
Once that happens, then you must, as Howard has said, they can generate all the.hazardous material they want.
All they have to ~o is package it properly, label it properly. Then, ~f they transport it o.r use it, they are pledged to get involved in the manifest system so you can tra~k it from the beginning to the end.
Once it is transported, the next obligation is to e.ither take it to a facility that is licensed for storage treatment or disposal.
In this casB, we are talking about a facility that would have to be licensed for disposal reasons.
These are proposed regulations that were supposed to have been out 18 months after Octob~r of J76.
That should be passed.
They are not out yet.
They do have draft regs that enter the criteria section where it says you are hazardous if you meet this criteria, criteria such as exp_losivity, corrosivity, reactivity, and radioactivity.
Radioactivity is listed.
Then they go in the
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1 0 J 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 regulations to explain what they mean by each one of these things.
You hit the one that says radioactivity, all they talk about is radon and radium, whi-ch are obviously no tailings.
There is a caveat in that particular
.CHAIRMAN HENDRIE:
Are they going to catch those phosphate mine tailings1 MR. MEYERS:
They could.
MR. SMITH:
That-' s one of the things that has been holding it up..
MR; MEYERS:
There is another caveat in that proposed reg.
The law also requires that EPA do a study on the mining business, and that study is not completed yet, a~d the regulati.ons say something to the effe.ct that nothing wi 11 be operative with regard to mill tailings until after -
6 months after that report comes out; There is a further delay built into the applicability of these proposed regs to mill tailings, and it is triggered to 6 months after a report.
I don-' t kn.ow when that report is supposed to come nut.
The point is that they are, indeed, moving in the
.di-rection -- the other thing you should know is the preamble to the law says if something is regulated by another act, and they list a bunch of acts, one of which is the Atomic Energy Act,, then RCRA doesn-' t apply.
If we had authority, they would not have authority.
And the part that Commissioner Kennedy
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. 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 raised the last time we discussed it is, why should we be bothering *. _This, in my view, is the most efficient and effective way to address the problem, but address the problem before you license the mill so that you can arrange for proper disposal, n.ot afterwards.
EPA would come in afterwards.
CHAIRMAN HENDRIE1 Let me wander around that and, in effe.ct, set the stage for the thrust of your paper here.
That Act gives the EPA, in fact, authority to deal
- 1th tailings after an NRC license closes; or now, in principle, we c-0uld regulate by leaving the post-license tail.ing matter to EPA by agr*eeing with EPA perhaps so formally as a memorandum of understanding that we would establish certain conditions on the tailing pi.les under our license
.conditi-0ns.
And those things, in turn; would mesh with a post-lic.ense EPA jurisdiction to keep the piles or.wherever the tailings go well-controlled.
It appears to me that present statutory authority between the Atomic Energy Act and the Resource -- whatever it is -
Recover Act gives the tw.o agencies, in fact, full authority to do that; so that, indeed, *ithout any further le.gisLation there appears to be a way in which we, working with EPA could, in fact, c.over the whole tailings situation from before the mine opens, during the operation of the --
before the mill opens, during the operation of the mtll, and then after tha license, our license, might lapse.
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10 11 12 13 14 15 J 6 17 18 19 20 21 22 23 24 25 14 It appears to me that that, at least in principle, is a feasible way to regulate the tailings and to cure some of the present deficiencies.
On the contrary~ you propose, rather, that we put the tailings into the Atomic Energy Act and thus presumably exclude them from the EPA items for regulation.
COMM! SS I.ONER KENNEDY:
Can I interrupt?
Is it clear that; in fact,.this post facto sort of inclusion of the Atomic Energy Act would have that effectJ MR.' SHAPAR:
I think it is clear.-* If it isn-'t, we could make it even,clearer.
CHAIRMAN HENDRIE:
The general counsel notes that the legislative his.t.ory, if we go forward, it would be helpful 1-f note is taken that that, in fact, is the intent of Congress.
MR. SHAPAR:
Actu~lly say it in the statute1 CHAIRMAN HENDRIE:
Yes; But any rate, you come and say no, although.this two-agency present law arrangement is at least possible in principle.
We think it would be better if the law were changed to put the tailings and make them a matt~r that NRC would control, in effect, in perpetuity.
C0MMISS.I0NER KENNEDY.:
This might be the NRC-' s answer to tenure.
CHAIRMAN HENDRIE:
Well, we-'ve got other things that last a long time.
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. j 1 1 2 13 14 15 16 17 18 19 20 21 22 23 24 25 15 (Laughter.)
CHAIRMAN HENDRIEz Okay, now, please tell me why that is -- why that is better than a cooperation with EPA.
And.I think we are f.o.rtunate if both Dr. Smith and Dr. Meyers had been.in both agencies, and I would be interested in your--
MR. SMITH1 I suppose the main reason why I feel it would be more efficient to have the total regulatory resp.onsibility within one agency, NRC, is simply a matter of efficiency,' timing, what have you.
If I look back at the past and Mhat it is we are ~rying to do in the future in terms -0f split responsibility between two agencies and in the area of
.waste management in the area of transportation, it doesn-'t leave me feeling good, and I would much rather -- I would feel mu~h better if the one agency that has the responsibility for the safety, heal th, and e.nvironmental revi-ew of the mi 11 al so ha.d that responsibility.for the waste produced from that mill.
I just think it m~kes eminently good sense.
COMMISSIONER GIL1NSKY:
Would you say something about the health hazard involved here?
One of the papers says that i.t c-ould represent the most significant public health and environmental hazard in the nuclear fuel cycle, in terms of, I_
guess, DVerall doses that could come from this MR. SMITH:
I was going to get into that when I got back.
I did mean to mention that.
I can do it now --
CHAIRMAN HENDRIEz Let me see if I can get a
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.J l 12 13 14 l 5 16 17 18 19 20 21 22 23 24 25 16 comment from Shellie before we turn that way.
MR. SMITH1 I do want to address that.
MR. MEYERS:
I think, just expanding on what Cliff said in teims Df efficiency, is really the rationale.
If one assumes that there are people of good will on both sides that are aiming toward common goals with no other parochial interest at hand, ~hat you suggest would work.
There are just too many extant examples where it doesn-'t work.
One of them is at EPA and their noise pr,ogram, where they have some regulatory authority,.FAA has authority, and they are constantly beating each other over the head.
What suffers is the end they are trying to a.ccompl ish.
In this particular case, we clearly have the authority, the expertise to address the problem at the outset, to require, by virtue of these two laws, to set up an interagency agreement.
That would be something the tim~consuming part -- and then arriving at satisfactory interagency agreement.
Assuming we did, it would then be implemented by two EPA regional offices.
And as Cliff can tell you, all those guys, they interpret things differently; it is that simple.--- Our interpretation -
MR. SMITH:
You would hav~ 10 offices of EPA interfacing with NRC in Washington.
MR. SHAPAR:
The theory of RCRA is that if it-'s regulated by an.other agency, it isn-'t regulated by RCRA.
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- 1 7 18 19 20 21 22 23 24 25 17 MR. MEYERS:
That was put in tp avoid the kind o+/-
problem we are talking about now.
CHAIRMAN HENDRIE:
I think the provision is a perfectly reasonable one, and a good one to assure that there is not.a duplication.
But in the present case*, it is not quite duplication.
As long as our license holds, they don't have the responsibility; and when it lapses, then they do.
I think it is a fair question to ask, and I rec.ognize that this is an area in which we have a high interest in EPA-'s standpoint.
I suspect it is one of a large number of areas, and even though they are a substantially larger o.rganizatton, I think they also have a whole lot more things to look at, so it may ~onstitute a significantly less urgent focal p.oint.for them than it does for us.
I think I would have to be cautious about making their whole argument on the basis that *r mistrusted the ability of the two agencies to work together, since I think that there are some other areas where we are going to have to work together and make that arrangement satisfactory, whether we like it or not.
MR. SMITH:
There is another thing, though, Mr. ~hairman.
As Shellie pointed out, you have 10 regional
.offices.
I can tell you from personal experience that you have got basi.cally,one, and maybe two, people that are knowledgeable about radiation in those particular off ices.
In
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COMMISSIONER BRADFORD:
In each of the 10.?
MR. SMITH:
In each of the 10.
So, you have very few people there who are knowledgeable about this problem at all.
And also, it is true, what you are saying.
Radiation at EPA is a very, very, very small program.
NRC is
.CHAIRMAN HENDRIE:
Do we know what EPA.,s attitude is.on the matter, as a matter of curiosity?
I can remember talking to _Mro Costle about it.
We tried to meet once in a while and trade mutual-interest items.
I can recall mentioning to him -
and I can't recall that we had any-MR *. PEDERSEN:
We have not got a formal response to the letter that we sent.
.CHAIRMAN HENDRIE:
J am sorry for interrupting you for 15 minutes.*
.C.OMMISSIONER GILJNSKY:
The reason I asked my questi-on was to ask, are we talking about something that is pretty important --
MR. SMITH:
I think so.
Dr. Hebo, who was chairman of the waste management situation, and who has just completed a report,. he presented a paper before the Hi 11, which is basically an abstract of the book.
But you read just one part of that, after a period of 600 years radioactive radium in more soluble thorium and uranium the mLll tailings piles and transuranic waste from
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10 J I 12 13 14 15 16 l 7 18 19 20 21 22 23 24 25 19 reprocessing these components are readily dissolved in water, are readily taken up in the body and are well known to produce cancer and other genetic effects.
The two hazards turn out to be r:oughly similar in.
magni tud!=.
Thus,' by measure of potential long-term perturbation of the background radiation in water supplies, present treatment of uranium mill tailings appear_s rather precarious in comparison to the elaborate and painstaking means proposed to deal with other related transuranic waste from the fuel cycle.
What we are saying is, look at the S-3 table, and you'_ll look at long-term effects.
~HAIRMAN HENDRIE:
I think there is no question that it is a significant item~
I can recall in the course of the Academy study on nuclear and alternative energy systems that we looked at some of those pieces and came to the conclusion that it was the dominant term that depending on how yo.u treated MR. CASE:
.If controlled, can be taken care of.
If uncontrolled, you have a problem.
CHAIRMAN HENDRIE:
Jt has the potential for being the dominant source of radiation.
MR. 5MI.THa That., s _right.
If you look at a chart-*
COMMISSIONER GILJNSKY:
If not taken care. of.
MR. SMITH:
Yes.
Properly.
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10 1 I 12 13 14 15 16 1 7 18 19 20 21 22 23 24 25 20 COMMISSIONER BRADFORD:
Did you say -- when you say it has the potential, that is not the same as saying that it present is?
Do we have other things that are greater sources at the moment?
MR; SMITH:
I would say it is the same.
Yes.
And what we are saying is, in effect,.when you kick up a tailings pile, millions and millions of pounds of material, you, in effect, have a radioactive waste dump that, to a large extent, that decision is irreversible.
It is going to be there for a long time, and then the question is how well are you going to be able to stabilize and protect that fr.om the present generation and from succeeding generations3 In that sense, we look at it as the same kind of problem with low-level waste and, indeed, high-level waste.
It rises above the pack.
It sticks out at you.
CHAIRMAN HENDRIE:
I think, compared to the propositions like the low-level waste burial grounds, even though some of those have been untidy operations, that the tailings are a potentially much more serious proposition.
COMMISSIONER -GILINSKY:
Another way of saying this is, a proper stabilization program is a way of reducing --
MR. SMITH:
If is thought about, if you conceptualize it before you actually, you know, build a mill.
I mean, if you really look at it, you pull for it, you know
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- 25 21 what you are going to do to protect the pub! i.c once* it-' s there, and then, the ~arned thing, it starts leaching and moves into the groundwater and it starts moving.
That is a tough problem; There is very little you can do.
.CHAIRMAN HENDRIE1 Howard; why don-'t you go on and tell us in two minutes what is in the bill, and then on to the distinctions between the parties.
MR. SHAPAR:
All right.
I think the basic approach of the bill is, if the Commission wants legislation agreed up.on by all, and that is very simply in a very direct fashion to redefine by-product materials to pick up these daughter pr..oducts in.the regulation of by-produc.t material.
The beauty and simplicity of that approach is by virtue.of redefining by-product material, anybody who possesses, transfers, et cetera, et cetera, needs a license as long as it is possessed at any time.
The _f.u 11 panoply of the NRC itcEnsing and regulatory enforcement authority would apply to this material the same as it would apply to any other by-product material.
tailings.
COMMISSIONER GILJNSKY1 The tailings being the --
MR. SHAPAR:
The daughter pr.oducts and the CHAIRMAN HENDRIE:
Actually, the radium-- after all, if you could get that out of the sand pile, well, why, the sand could be -- wouldn-'t be of interest.
7165.05.21 pv 22
.MR. SMITH:
Might not be of interest.
2 CHAIRMAN HENDRIEr Then, we could build houses of 3
it.
4 MR~ SMITH:
I was just going to say it wouldn't be 5
of interest to us, but there could still be a chemical 6
Pollution problem,.which would bring another agency *-
7
.CHAIRMAN HENDRIEz From the tailings.?
8 9
10 J 1 12 13 MRo SMITH:
From the tailings leaching into the groundwater and moving.
If you have the radium out, you still have other things.
CHAIRMAN HENDRIE:
What..,s in there.?
MR. SMITH:
Selenium, a lot of other metals that can contaminate.
14
~HAIRMAN HENDRIE:
At least, the problem reduces to 15 one common, to mining operations and --
16 MR. SMITH:
True.
17
.COMMISSIONER.GILINSKY:
You would expand the 18 catBgory of by-products materials to include --
19 MR. SHAPAR:
To include the naturally occurring 20 daughters in the sourca material of the tailings.
21 COMMISS I.ONER GILJNSKY:
Why would it only include 22 23 tailings?
Why wouldn-"t it include such materials elsewhere?
MR. SHAPAR:
We view this as a tailings problem.
I 24 mentioned earlier in the discussion that there are other 25 areas --
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.COMMISSIONER GILJNSKY:
But the definition doesn-'t seem to include the word.tailings; does it?
MR. SHAPAR:
L~t-'s see.
~aturally occurring daughters of uranium and thorium found in the tailings are waste produced by the extraction.
COMMISSIONER GIL1NSKY:
That would exc.lude the phosphate?
MR. SHAPAR:
I think so.
CHAJRMAN HENDRIE:
It seems to me that it is explicit to the --
MR. 5HAPAR:
All right.
That brings us to -
up to now.
l think we are in.complete agreement as to that basic approach, where the differences arise, amortg the staff *
. COMMISSIONER GIL1NSKY:
This may be a quibble.
Why don't you simply say the tailings themselves?
Why are you going through all 'the daughter products?
MR. SHAPARs I will have to turn to the interaction between my lawyers and the technical staff, who developed this language over a cbnsiderable effort.
We could take another look at it;
- .CHAIRMAN HENDRIE:
I think you'.11 want to stick to the radioactive material.
COMMISSIONER GILJNSKY:
Since you are returned to tailings of milling op~rations, why not say we want to
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MR. SMITHi It was a legal point you couldn-' t regulate it as a source material, so -
MR. SHAPAR:
That would do violence to the.basic
, i.dea of a source material which is a source for -
.COMMISSJ.ONER.GILJNS.KY:
You're worried about the definitions in the Atomic Energy Act?
MR. SHAPARi Yes.
Completely doing violence to them~
Source material is what you use to --
COMMISSIONER GILINSKYz It would be in plain English, instead of talking, abou c;iaughter products.
CHAIRMAN HENDRIE:
The by-product material is a
.radioactive material.
If you say tailings and hang it up under by-product material, we now have include.d all of the nonradioactive elements in the tailings as by-product material and it don-'t fit~
.COMMISSIONER GILINSKY:
You are not going to regulate the nonradioactive aspects of the tailings.
MR. SMITH:
ThatJs right.
.COMMISSIONER KENNEDY:
What Cli.ff Smith said, there I
are other chemical problems associated with this.
They are not going to be regulated.
MR~ SMITH:
Not by us, but to the extent that we properly located the tailings pond, stabilized the tailings
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.20 21 22 23 nd#5 24 t.#6 25 25 pond,~ if we.could prevent the daughter products from leaching out and contained them, we would have, in effect, contained
- most of the chemical products *
. COMMISSJONER BRADFORD:
When you do an impact statement on a mill licensing, you must have to consider things like the selenium, and that MR. MALSCH:
Once we get jurisdiction over the tailings, fine.
Underneath us, we end up picking up and having to consider all radiological. impact.
MR. SHAPARc All would be considered in our NEPA
- review.
.COMMISSIC>NER BRADFORD:
That must be true now.
MR. SHAPAR:
It is true now.
MR. MALSCH:
The only difference would be if you define.this more broadly, to include simply tailings.
The only dif.ference would be what would happen if some extracted radi.oacti ve materials in tailings and then all y.ou had was sand.
Are we interested in regulating that?
If the answer is yes, thein we _ought to broaden the definition.
If no, then the definition is fine *
.COMMIS$~_0NER BRADFORD:
Supposing that the NEPA analysis showed that for some reason the consequences of some nonradioactive material would be quite severe.
What would we then normally do about that?
MR. SHAPAR:
We can propose conditions to
65.05.25 pv 2
26 ameliorate it.
It would be factored into the cost benefit.
The environmental damage might be sufficient to enable us to 3
turn down the license.
4 The more probable thing woul.d be 1 icense condi ti.ens 5
to ameliorate the affront to the environment.
6 COMMISSION-ER BRADFORD:
Does that bring us to the 7
point, then, where, in fact, we are at least potentially 8
regulating the tailings in a broad sense now?
9 MR. SHAPAR:
I think that is a fair statement, but 10 there are still Jurisdictional Using our JI NEPA authority ~snot the most direct way to do it, and other 12 13 people have recognized that.
We have found out ourselves from Dur process, by virtue of the fact that once the license is 14 expired, we can even apply NEPA~
15
.MR *.SMITH:
Mr. Bradford, let me ask Mr. Martin to 16 respond to that question about environmental impact statements 17 and how we review it now in non-Agreement States, the 18 review aspects.
19 MR. MARTIN:
Starting.about 2 years ago, with the 20 latest mill that we have licensed, we determined that there 21 would be a groundwater pollution problem and require that the 22 23 entombments be lined such that they not -- such that they trap all of the chemicals and that sort of thing until they have 24 dried out and no more source of water-that is quite an 25 expensive item.
That is the sort of thing that comes out of
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COMMISSIONER BRADFORD:
Might we take those same kinds of measures, even if we anticipcate that the environmental damage was not likely to -0ccur until after the life of the mill itself?
MR. SHAPAR:
Insofar as you can anticipate it, yes
- MR~ SMITH:
Yes.
I think you are suggesting we all have existing authority under NEPA.
I think we all would agree, and we are exercising --
MR. KELLY:
But it does not exist.independently of
- the Atomic Energy Act, unless you have a basis fo.r asserting
,action of the Atomic Energy Act; it doesrr't come into play.
We don-'t have an open""."ended.charter to go out and protect the
\\ environment.
MR. SHAPAR:
I think that*'s right.
All right.
Now that we have covered the area of complete agreement, at least among the staff -
(Laughter.)
MR. SHAPAR:
_ let-'s get to the more interesting area of the disagreement.
That revolves around how the matter should be treated ;n the Agreement States.
Elements of the staff, including myself, feel that we have a very successful Agreement States program.
We do not enter into an agreement with a state unless the NRC makes the finding that the state program is not only adequate to protect
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.11 12 13 14 l 5 16 17 18 19 20 21 22 23 24 25 28 the public health and safety but is compatible with our program.
As a matter of fact, the Commission annually recertifies on that.compatibility requirement.
So, the thrust of this particular element among l
the staff is that we have an existing program that is quite successful and has been.commented on by many people outside the.Commission as one good example of how a pa~tnership between the Federal Government and the states has worked very successfully.
On the other hand, there are people -- elements of the sta:ff,.Cliff and Bill Dircks, and I believe the.OPE -- who believe that the statute should incorporate specifically a requirement that states im.plement minimal federal standards.
I think questions have to be asked about that to und~rstand what the concept is.
Would it be part of the Agreement State program or not?
What enforcement machinery would be used in the event that this concept were adopted?
Would it be fitted into the Agreement State program?
How do you distinguish a separate concept +/-or this element of by-product material from all the other licensable materials that the states now handle, including mega curie products by mega curie quantities and burial grounds?
COMMISSIONER GILJNSKY:
That-'s more serious?
MR. SHAPAR:
Right.
But I suppose there are other hazards that ought to be looked at, too, to decide if they
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MR. CASE:
If those were not controlled, they would be very serious, too.
MR. SHAPAR:
Right.
Usually, under the EPA concept
-- and it is an EPA concept of minimal federal standards the states can set more restrictive standards, more conservative standards.
That, of course, is the anthesis of compatibility, which is the basis of the present Agreement States program.
I guess some people have felt that the NEPA approach has not been a howling success in operation and that, by contrast, the 274 program has worked relatively well as a federal program.
Also, I would note a rather -
.COMMISSIONER KENNEDY:
Could you explain that a little bit more?
In what regard.do people say -- what evinence do they have to say that the NEPA program, as you put it -
I am using your words, I think -- the NEPA program has not worked well?
What does that mean?
MR. SHAPAR:
That would have to be a general impression, Commissioner.
The water quality program of NEPA, the difficulties that have been written about in connection with this implementation by the Agreement States.
That is the only example I can give you right now, but it has been a general matter of discussion.
Maybe the people who are m6re familiar with those programs would care to answer that.
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 MR. SMITH:
It has been my own personal viewpoint that EPAJs program has been very successful.
MR. SHAPAR:
Then, we have another.difference of
.opinion.
COMMISSIONER KENNEDY:
Can you find the guy who doesn*'t think that?
I am trying to find out.what~ Howard made a statement.
I am trying to find out what the statement
.means and what his bas is is.
MR.. SMITH:
I dorr't know what the basis for that statement is, either.
COMMISSI.ONER KENNEDYz Can somebody tell me?
MR. SMITH:
It is clear, when the Federal Gove.rnment asserted itself with respect to the clean water act and, in effect, established minimum national standards and aske~ the states to regulate against those, there were a lot of states who were aggravated by that federal intrusion in what they felt were purely state matters.
But I think if one looks at the program --
CHAIRMAN HENDRIE:
But that sort of thing doesn't really apply here, where the Agreement States in making the ag_reement say, *"Ye?., we will be fully compatible with your --
MR. SMITH:
Yes, we will be compatible with what that means.
MR. MEYERS:
My understanding --
MR. PEDERSEN:
165.05.30 pv 31 COMMISSIONER KENNEDY:
That is a question of fact.
What is the answer?
Does it or doesn-'t it?
.2 3
MR. SHAPAR:
It has to be compatible with our.
It 4
can-'t vary.a great.deal from our s.tandards and sti 11 be 5
compatible is the most direct answer~
It_might vary a little 6
bit and still be compatible, but it still has to be on the 7
same level.
8 COMMISSIONER.BRADFORD:
Have we informed~
the 9
states to that effect?
10 MR. SHAPAR:
We have standards published as to what
. 11 compatibility.means in actual fact; They are_ almost 12 identical
- 1 3
. COMMISSIONER KENNEDY1
.I sti 11 have never gotten 14 the answer to my question.
You made a statement, and I am 15 trying to find out.what it means and what its basis is.
So 16 far, I haven-'t gotten. anybody to tell me.
17 MR. SHAPAR:
It is a general impression, based 18 partly ~n the water program that Cli1f has mentioned.
I would 19 be gLad to provide you with further documentation about other 20 criticisms of the EPA program.
21
.COMMISSIONER KENNEDY*
I would appreciate it, since 22 nobody here seems to be able to do it -
or wi 11 i ng.
I would 23 24 just 1 i ke to know what it is.
MR. RYAN:
May I make a distinctioh between the 25 Agreement States program and the programs ~f delegation under
165.05.31 pv e*-
2 32 the EPA experience.
In jus.t about every case under the clean air act, under the FWPCA, and, as a matter of fact, the only 3
example which I can offer to the contrary is the safe drinking 4
water act, in every case the EPA program is accompanied by a 5
grant pr.ogram,.a program support, a dollar program in which -
6 in the.case.of FWPCA, it has nm into the millions of dollars 7
under the program grants for state water pollution control 8
agencie.s f.or state water agencies generally.
9 I think that is a fundamental difference between 10 the Agreement States program under Section 274 and FWPCA Act
.11.
and others.
There is no money -
12 1 3 14 15 16 water act_~
MR. SMITH:
Except with respect to the drinking MR.' RYAN:
I made that distinction.
MR. SMITH1
.Okay.
MR. RYAN:
In that case, in the drinking water act, 17 the state may elect primacy, or it may decline primacy.
18 19 MR. SMITH:
Right.
MR. SHAPARr The~e is one other factor that I think 20 needs to be mentioned to round.out the maj9r picture.
Part of 21 the.disagreement arn,ong the staff regarding the, use -of the 274 22 program revolves around the ability of the NRC attorneys --
23 our statute is a little bit peculiar, because even though both 24 compatibility and adequacy are needed as grounds to enter into 25 an agreement; the only statutory basis on which the NRC can
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10 J I 1 2 13 33 terminate an agreement is on the grounds of adequacy, not compatibility.
It is the way the statute is written.
Further', there is an additional complication.
It revolv.es around the question of whether or not the NRC must terminate the entier agreement or part of the agreement~
It is ~lear from the statutory language that the NRC can terminate the entire agreement.
We think probably, although this is not clear at all, it probably can terminate an entire class, like the
.. by-product material, all of source material, all of special nuclear material in quantities insufficient to form a critical mass; We feel it is clear that a part of a class could 14*.. not be terminated.-
15 16 1 7 18 19 20 21 22 23 24 25 Those are,the three points I want to make.
COMMISSIONER KENNEDY:
But if one is going for legislation, that is a remediating e.ffect, I should think,** if nne wished to do it.
MR~' SHAPAR:
Yes.
But usually,.when one goes for legislation, one suggests a background and a concrete problem that entitles you to move forward to the Congress to ask for legislation.
As of now, no agreements have been terminated, and it has not been suggested that any be.
Beyond that, in the present context, there is an
,addit"ional prnvision of the Act in 274 that enables the NRC,
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23 24 25 34 even with an extant agreement, to reserve to itself and carve
_ out of the agreement the disposal of these tailings at any time it felt the Agreement State*was not doing adequately or, f.or that matter, for any other reason,..as long as we based it on the hazards of the material involved:
We would not even have to accept the agreement to terminate in either whole or part:
We could exercise that discretionary authority under 274 and take the tailings back if the states didn't do a good Job.
I think that illustrates the basic disagrEement.
There is one other disagr~ement between me and the off ice o.f general.c.ounsel.
COMMISSIONER GILINSKY:
You would take it back from the individual state?
MR; SHAPAR:
That wasn*'t doing* a good job.' "Right.
I don't think there is a major disagreement, but the general counselJs office suggested that this legislation should not, in so many words, deal with the preemption question.
I feel we have to; the reason being this:
When the 274 was first enacted, the government had~ in effect, already preempted the control of radioact.ive materials; there.fore, all the Congress had to say -- and in fact, it did say -
was the NRC would discontinue its authority and turn it over to the states.
Here, the situation is quite rlifferent.
Here, the NRC has never preempted this area up till now; therefore, not
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- 12 1 3 14 1 5 1 6 17 18 19 20 21 22 23 24 25 35 to say something about it in the ~tatute -- and I will be glad to negotiate the words, if the Commission wants any legislation at all -- I think it is imperative that we don-'t leave confusion, and we in some way address the question~
I think that gives the main areas of agreement, and the areas of disagre~ment.
I think I have talked too much.
I would rather turn it over to those who disagree.
MR~ KERR:
Mr. Chairman, let me add on-*- I believe that if you reassert on the basis of policy, you have to have a change to the statute.
If you reassert on the basis of a health and safety problem, we can exercise our discretionary authority, as Howard etplained it, through a regulation
.change.
CHAIRMAN HENDRIE:
Dkay; We ought to hear from the other side o1 the argument.
COMMISSJONER GIUNSKY:
How come Howard, taking the.
lead and these people disagreeing, how did it come to be assigned to Howard?
Did we ask 1or that1 Howard?
down.'
MR. GOSSICK:
You asked for draft legislation.
COMMISSIONER GILJNSKY:
Did you assign it to MR. GOSSICK:
I don-'t recall how the request came
.MR. FONNER:
I can explain how that assignment *was
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The initial Commission paper from Mr. Chilk had an ambiguity as to who the Commssion had assigned first; that NMSS see the ELD and OELD, then it *was reassigned to OGC.
COMMISS !ONER KENNEDY:
Where did that come from.?
.MRo FONNER:
I don-'t know:
MR. SHAPAR:
I think I tried to get it reassigned.
(Laughter.)
MR. FONNER:
After some period of time had elapsed and no action had occurred, I took the initiative o.f calling the secretaryJs office and calling OGC and found out that, in fact, it was understood that ONMSS and ELD should be doing the work:
We picked it up from that point on.
-COMMISSIONER KENNEDY: - And from whom did that -come.?
I am so confused now, I wish you hadn-'t asked the question.
MR. FONNER:
That came from conservations with people in the secretary-'s office and in the office of general counsel.
COMMISSIONER GILINSKY:
I was just curious as to why Cliff is in a position -- why isn't Ho.ward dissenting?
MR. SHAPAR:
I think I have some further light to shed on the matter *.
I remember discussing this with Jerry Nelson and recommending strongly that this was a legislative matter and ought to be handled by him.
I can-'t recall how the discussion came out, but a~parently some deadline was approaching and it had not been picked up.
I
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10 11 12 13 14 1 5 16 17 18 1 9 20 21 22 23 24 25 37 guess we had another discussion, and I agreed reluctantly to pick it up.
That is my best recollection.
COMMISSIONER KENNEDY:
S.omebody did something in the interest of getting the job done~
CHAIRMAN HENDRIE:
At some point, I called you and said "hustle. 11 (Laughter.)
CHAIRMAN HENDRIE:
1 guess at that poirit you already had the lead on it, Howard.
MR. SHAPAR:
I was running faster aftei that point.
(Laughter.)
MR. KELLY:
May I make a -general observation, that I think it would be.desirable to figure out just how th.is legislative responsibility should be deterirninecl, and I confess my own confusion in.this area.
MR. SHAPAR:
I can resolve it right now, if youJre willing. Just take it CHAIRMAN HENDRIE:
Be care.tu!, when Howard takes to these acts of impetuous generosity.
(Laughter.)
MR. SHAPAR:
IJve learned; CHAIRMAN HENDRIE:
Now, let-'s,see, please.
MR.* SMITH:
Okay, Mr. Chairman -
Commissioners (Laughter.)
MR. SMITH:
As Howard has already said, basically
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.1 1 12 1 3 14 1 5 16 17 1 8 19 20 21 22 23 24 25 38 our main disagreement is on how to assure that the no-tailings disposal problem is treated properly by the states.
That is the main ar.ea,of disagreement.
It is the view of my office and every staff member in the office that deals with this issue, especially those that deal with it on a day-to-day basis, that a much better approach, since we are starting, we are talking about legislation, would be an unequivocal, straightforward requirement that the states regulate in acc,ordance.with minimum nati-onal standards.
We are not talking a.bout doing away with Agreement States program.
We are simply saying that they regulate those
.mUl tailings per a national or federa.l standard.
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25 39 We find it.very difficult that we are going to have 25 agreement states with the bulk of the mill tailings and some of those with the bulk of the mill tailings operations regulat-ing those tailings ponds up to the calliber that we would like.
There is an honest difference of opinion.
Let me make just a couple of other points.
As we hav already said, the radon releases from these tailings ponds Therefore, each mill tailinqs pond that you run into effectivel constitutes a low-level radioactive waste site, which, unlike other low-level burial grounds, is going to be there.
- Hence, the potential for problems for thousands of yea~s.
The problem, as I have indicated earlier, as Dr. Hebo has indicated in his testimony, is not dissimilar to the trans-uranic problem.
So that we feel that decisions on what you do with these tailings now are to some extent irreversible decisions, because once you get several millions of tons of tailings on the ground --
COMMISSIONER KENNEDY:
Tailings are almost always at or very near the site of the mill.
MR. SMITH:
Yes, they are.
COMMISSIONER KENNEDY:
Your paper says on page 2:
"Much of the calculated health impact from radon occurs in areas of the country outside the western.milling states."
MR. SMITH:
There has been a lot of --
CHAIRMAN HENDRIE:
The radio~ctive gas.
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25 40 MR. SMITH:
the gas.
And there are also particu-lates that are picked up by the wind and transported.
COMMISSIONER KENNEDY:
How far?
What are we talking about?
What is the distribution of all this stuff?
the *gas.
CHAIRMAN HENDRIE:
Global.
MR. SMITH:
Certainly all over the United States.
COMMISSIONER GILINSKY:
It is the stuff that releases COM.l\\1ISSIONER KENNEDY.
Yes, the dust.
But -you know, in what concentration?
MR. SMITH:
The actual magnitude of the dust?
I woul have to check with --
MR.:: MILLER: u.It diffuses* eastward with the prevailing winds *because of the high concentration in the eastern part of the United States.
Even though you are getting small concen-trations, you are getting high doses.east of the western mill-ing regions.
It is the phenomena of radon, being a noble gas, being transported.
MR. CASE:
We shouldn't lose sight of the fact that there is natural radioactivity.
In order to get back to back-ground, you have to put it back to where it was.
It is not an insoluble MR. SMITH:
Let us finish, please.
We don't disagree with that.
We believe that there is disparity in the practices of the Commission and agreement states.
We do.
We have had
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25 41 some recent experience with several states and that leads us to that conclusion.
I would be glad to further furnish you infor-mation on that later.
The states, some states, are under in-tense pressure for development.
We feel that a 1.min:i.Jmum federal standard gives them an additional lever to do what is the right thing to do, no matter how hot the pressure.
Also, as has been mentioned before, at least as we understand it, maintaining compatibility is not a condition for continuing the agreement.
In other words, on~e you make the initial determination, it is our understanding that you can only terminate it or suspend it if NRC decides that such action is necessary to protect the public health and safety.
We think -- and then it gets into the whole area of this total proqram, and we simply don't agree that that mecha-nism provides a practical and realistic method for enforcing national standards.
Talking about the past just a little bit, I think there is general agreement that the past management of uranium mill tailings has been bad, not only on the parts of states, but also on the part of the Federal Government.
There are currently about 100 million tons of tailings at the 17 a6tive uranium mills in the United States.
Our projections are that we are going to be facing about a billion tons of tailing~
by the year 2000.
About half cif this will be, probably, in agreement states.
So that we believe that there should be assurances that there will not be re-occurrences of the past
mte 4 42 practices that we have had.
2 Now, over the past year NRC, through Mr. Martin and 3
Mr. Miller, has been very actively involved in trying to upgrade 4
what we do with these tailings ponds, basically using provi-5 sions of the NEPA process in terms of having them submit a 6
stabilization plan in terms of financial assurety.
We would 7
like to get a much sounder basis than NEPA for this.
We are, 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 as you know, working on a generic environmental impact state-ment on uranium mill tailings,,andwe're working on regulations that would flow out of that.
We feel, frankly, that the states need and would welcome federal national standards against which to work with, and these would be minimum good practice.
They could make them more rigid if they wanted to.
But I guess the bottom line is that establishing these regulations as a minimum national standard, in our professional opinion, provides the best assur-ance that there will not be a recurrence of the past bad situa-tion, both in the Agreement and in the non-Agreement States.
We don't say the job can't be done under the compati-bility doctrine.
We think that the job would be a lot better off to do it another way.
COl\\11.'A.ISSIONER BRADFORD:
What is it we certify annuall ?
Ace-Federal Reporters, Inc.
MR. SHAPAR:
That the programs in the Agreement State are adequate to protect the health, public health and safety, and are compatible with the program of the NRC.
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- COMMISSIONER BRADFORD:
What would happen if we failed to find compatibility?
MR. SHAPAR:
The reason that we make those findings each year is because of a dispute that the old AEC had with the Department of Labor implementing its authority under the Walsh-Healy Act.
COMMISSIONER BRADFORD:
Public contract?
MR. SHAPAR:
Yes, they did have authority, perhaps they still do.
But I thinY the Walsh-Healy -- they did have authority at that time in the Department of Labor to promulgate regulations under that statute to control occupational hazards.
COMMISSIONER BRADFORD:
This was mostly mining?
MR. SHAPAR:
-. I think it was generally..I don't know if it was restricted to mining.
The AEC got together with them and said, we are doing the job anyway, so why don't you hold off in exercising your authority.
They said, fine, but we won' do it for the states.
That turned out to be a problem in the Departrnent of Labor.
As a matter of fact, the agreement states came storm-ing into Washington, felt that the program had been impaired by the Department 0£ Labor, by what they would be doing.
We finally worked out with the Department of Labor to make this annual certification, and on that grounds -- on those grounds, the Department of Labor agreed not to exercise its Walsh-Healy authority over radioactive materials in either Agreement or
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25 44 non-Agreement States.
That very incident causes me to disagree sharply with Cliff as to what his political judgment and my political judg-ment are as to the effect of this in Agreement States.
In my opinion, if we were to assert the,principle of minimum national standards, in contrast to compatibility, my own personal opinion is that it will stir up the Agreement States very strongly.
MR. KER~:
Could I add, there is more on compatibilit.
Each individual agreement has pledges on both the state's part and ours that we will do our best to continue compatibility.
We have flexed that muscle a few times with them to get them to adopt something that we think is necessary.
It is true, as Howard said, we used this annual determination to satisfy the Department of Labor.
There are these pledges in the agreements themselves, and we used them.
COJvl.MISSIONER GILINSKY:
Have we ever failed to find -
MR. KERR:
Yes, in nine states, because of their failure to adopt Part 19, equipment for failure of certifica-tion to the Department of Labor.
The Department of Labor has not said, at this *point, how they react to that.
COMMISSIONER GILINSKY:
What is Part 19?
MR. KERR:
A lot of it was in the old Part 20, and the states had posting of notices to -- regarding the the right of employees to file complaints, the right of
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25 employee representatives to accompany inspectbrs.
COWJJ:ISSIONER GILINSKY:
What was the upshot?
MR. KERR.: Wel.iliy. we sent the letter to the Labor 45 Department.
They have not indicated one way or the other how they felt about it.
CO:M~ll.1:ISSIONER BRADFORD:
Is deferring the determinatio of compatibility the same as finding incompatibility or failing to find MR. KERR:
We found them incompatible with regard to that one item, and for purpose of certifying to the Department of Labor.
Now, during this year gets up here, which will be soon and when the next paper it will be a little earlier than last year.
Ii think:-four out of nine of those completed all the action necessary to implement that regulation in the last year.
There are still five and they are working on it, and they are still outstanding.
We are continuing to pressure them to adopt that regulation.
MR. BRADFORD:
The only thing ~ou go by is whether or not they have the regulation.
You don't check to see whethe it is being enforced?
MR. KER..~:
Yes.
When we accompany their state inspec tors, we check to see if they are implementing.
MR. CUNNINGHAM:
Mr. Chairman --
CHAIRMAN HENDRIE:
Cliff, let me pursue a line. If a federal minimum standard of tailings piles for stabilizing purposes
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25 46 can be written, aren't you saying you have some things in mind?
MR. SMITH:
Yes, we do.
CHAIRMAN HENDIRE:
I suspect one would want to have some hearings on it and get comments from an assortment of people before one went final with them.
I would think that would be the process that we would want to go through, whether there was a specific feature in the statute that we would request here, saying, implement those standards.
That is, presumably, we would move to a Commission rule along this line, on whatever schedule you could move forward, which would be about as reasonably fast as you can get it done.
The auestion then is, with such a rule in process and then in place in the Commission's regulations, are you that much better off having a specific mandate for Agreement States to follow that rule with regard to tailings, as against simply picking them up on the compatibility basis; and what about the merits there?
MR. SMITH:
Well, obviously there would be a gap unti such time as the regulations were actually effective.
CHAIR7'.1AN HENDRIE:
That would be true whether you put the provi-sion into law or not.
MR. SMITH:
Right.
CHAIRMAN HENDRIE:
I presume that rule will oome as it will_;..:,_
come, no matter what the statute -- what is in the statute.
MR. SMITH:
We haven't discussed this with --
mte 9 47 MR. EILPERIN.
You can go even further when you have 2
a national stan~ard.
You can make a finding at the outset that 3
you thin~ adoption of that standard is necessary to provide 4
adequate protection to the public health and safety.
That would 5
then give you a handle if the state did not accept that.
That 6
would give you a much more forceful handle to say, okay, state, 7
if you don't buy off on that national standard, your program 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 is no longer adequate for the protection of the public health and safety, and tying it into MR. RYAN:
May I address that for a moment?
There is a great deal of worry about what the states may or may not adopt.
I think our experience justifies the claim that each time we have. presented something which, although not* labelled a-national standard, may be the equivalent of the national standard or the working example of a national standard, the states in the Agreement State programs have adopted it and they have adopted it willingly and without difficulty.
An example:
We agreed on the link of NRDC to provide an environmental impact statement on mill tailings.
After that, the Agreement States agreed to condition the licenses which may be issued beginning at that time through the completion of the generic environmental impact statement, to condition licenses on the outcome of the generic environmental impact statement.
I have no philosophical difficulty with the idea of Ace-Federal Reporters, Inc.
25 a national standard.
I don't oppose national standards as a
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way of doing business.
I just don't think, in this case, that 2
it is necessary.
I think that it should be incumbent upon the 3
proponent of the piece of legislation to justify the reasons 4
for such a legislation.
We have never had any quarrel from Dr.
5 Smith's office or any other 6
CHAIRMAN HENDRIE:
I use that ar~t, too, except when I am 7
going the other way, in which case I find it inconvenient.
8 (Laughter.)
9 CHAIRt*W HENDRIE:
I don't want to give too much weight to it,
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10 in all 'fairness.
11 MR. RYAN:
I agree that the, heal th:,pr:oblems associate 12 with tailings is a significant one.
If the various offices of 13 14 15 16 17 18 19 20 21 22 23 24 the agencies are satisfied that it is an overwhelming one, I would urge them to come forward and suggest that the programs in the Agreement States are not adequate to protect public health and safety.
If that is their reason, we will argue that point.
I haven't heard such a clamor in the past.
I do disagree -- I would like to point out, with Ace-Federal Reporters, Inc.
something that Mr. Shapar said, and that is that there is a fundamental and basic division here.
I don't think that is the case.
I think that really we are quibbling about definitions and terms, rather than about the thrust of the proposed legis-lation.
The thrust of the proposed legislation would give this agency jurisdiction over tails, and through that jurisdiction we would presumably act with the Agreement States and improve 25
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49 the situation in the Agreement States.
I don't think it is as 2
fundamental or as bitter a disagreement as has been suggested.
CHAIRMAN HENDRIE:
I don't find it particularly bitter at all.
~----
4 MR. SHAPAR:
I would like to follow up on that remark, 5
that 7
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 CHAIRMAN HENDRIE:
Are you bitter?
MR. SHAPAR:
No.
(Laughter.)
MR. SHAPAR:
There is some confusion about, I think, from this discussion as to how the minimal standard would work, the federal standard.
In essence, you have to divide the situ-ation between a state that wants to come in and sign an agree-ment with the situation after that point, where a state has already signed an agreement.
We are talking about a new state that comes in.
The Commission defines the rules of compatibili y, so the Commission's standards have to be accepted by the state if we define compatibility in that matter, or we won't sign the agreement.
The only real problem is, what happens if a state who has signed an agreement no longer maintains its compati-bility?
That is tJ1e only difference in the logical sense that I can see from this discussion.
CHAIRMAN HENDRIE:
Go ahead.
MR. SMITH:
I wanted Mr. Martin, who is assistant ce-Federal Reporters, Inc.
25 director for our Fuel Cycle Division -- you wanted to comment
mte 12 e-7 50 a little bit more, Jack, on the problems -- not just the stabi-2 li~ation, but the front end, just the sitings of this tailings 3
problem?
4 MR. MARTIN:
I think the major consideration here, 5
at least for the short term, is, as Cliff said, that once these 6
tailings start being laid down it is almost an irreversible 7
problem, and that a great deal of the national standards will 8
focus on properi :siting and obtaining the engineering and siting 9
and other comrni tments of that sort prior to creation of the 10 11 12 tailings.
It is not somethiimg that only applies years later after they are laid down.
CHAIRMAN HENDRIE:
That doesn't really affect the argument here.
13 much, does it?
Those standards will come into existence in a 14 15 16 17 18 19 20 21 22 23 24 useable form on whatever schedule you are capable of do-ing it.
That won't matter, whether there is a piece of language in the proposed legislation that says the states will follow those or whether the standard is headed as a Commission rule to be urged upon the states under the compatibility rule; and it will be available when it is available, and presumably used when it is useable, quite apart from that detail which we are talking about.
Ace-Federa! Reporters, Inc.
I might also comment that the national standard lan-guage is not all that clear.
It is a standard that is approved by the American National Standards Institute, and what we are talking about here are Commission rules, guides, or whatever.
25
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25 51 MR. PEDERSEN:
There is a point that shouldn't be overlooked.
The compatibility becomes important when you are negotiating the agreement, but once the agreement is negotiated the state can diverge from that compatibility and on that basis alone you cannot terminate unless you make a finding that healt and safety has been adversely affected.
MR. SHAPAR:
That is not correct.
There is another section that gives us discretionary authority to take over the disposal of anything if we think the hazard is justified.
MR. PEDERSEN:
That is once again MR. SHAPAR:
And leave the rest of the agreement in effect.
MR. PEDERSEN:
That is a health and safety aareement.
What happens if a state adopts a higher standard?
COMMISSIONER KENNEDY:
The standards are for the purpose of health and safety in the first place.
MR. PEDERSEN:
\\\\Jhat if they adopt a higher standard?
On what basis could we terminate that agreement?
COMMISSIONER KENNEDY:
A tougher standard?
CHAIRMAN HENDRIE:
If you had a higher standard, you wouldn't d6 it on the health and safety basis.
MR. PEDERSEN:
How could you?
CHAIRL'\\1AN HENDRIE:
Why would you want to?
- MR. PEDERSEN:
My point is, earlier he was concerned about the use of the term "minimal federal standards" that
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25 would encourage states to adopt higher standards.
They are not free to do that now.
CHAIRMAN HENDRIE:
At 28 minutes after 12 : 00, it is a point am perfectly willing to overlook.
(Laughter.)
COMMISSIONER KENNEDY:
I have a couple of questions.
CHAIRMAN HENDRIE:
All right, shoot.
COMMISSIONER KENNEDY:
Assume that this full program, as outlined here, was undertaken.
How much manpower is in-volved for the NRC, and I am speaking about headquarters and regional offices.
What is it going to cost, and have we got that manpower in hand?
Where will it come from?
Have we got the money in hand and where will it come from?
And how would an implementation plan work?
MR. SMITH:
Are you talking, Commissioner Kennedy, with respect to this minimum --
COMMISSIONER KENNEDY:
Yes, sir.
We assert full jurisdiction on minimum standards.
MR. SMITH:
With respect to setting out minimum standards which the Agr~ement States would go by, there wouldn' be any additional manpower that I can think of.
CHAIRMAN HENDRIE:
I presume that it is in your work plan now and under way.
MR. SMITH:
We are already developing standards in concert with the GEIS for the non-Agreement States.
The states
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25 53 program office will take those and use them with respect to the compatibility doctrine.
The concept of a minimum federal reg, or whatever would be an appropriate term to use, doesn't appear to us that it is going to cost us a lot of -- any manpower problems, not at all.
CHAIRMAN HENDRIE:
With regard to regulating MR. SMITH:
If the state for some reason said, we won't adopt those, and then it is our ball game with respect to licensing, that is NRC, then we probably need something on the order of two or three more people.
We are not*talking a lot of people, really.
CHAIRMAN HENDRIE:
Let me ask a broader question.
You already are struggling with the licenses on mills, old ones to upgrade and new ones to get up to *snuff, and you are trying to deal with getting into those things.provisions on the tailings as it stands :now.
Off hand, I don't see any immediate significant impacts if this piece of legislation, in whatever form it came into being.~<- Someplace down the line, presumably, you will have to be keeping an eye on a number of tailings situations where the mills have shut down.
So that could add a little bit.
MR. SMITH : In non-Agreement states.
CHAIRMAN HENDRIE:
In non-Agreement states.
MR. SMITH:
I don't see that as a significant impact.
.COMMISSIONER KENNEDY:
What aboutI&E?
MR. SMITH:
I&E, of course, inspects already with
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25 respect to non-Agreement States.
They don't inspect in Agreement States.
I can't see that their workload would change.
COMMISSIONER GILINSKY:
Instead of checking against compatibility, you could check against something else.
COMMISSIONER KENNEDY:
I want to be sure.
CHAIRT\\12'.lli HENDRIE:
I don't see it as a significant problem.
M.t;>,. SMITH:
I would like to ask Jack:
Do you see it as a significant --
MR. MARTIN:
No.
In fact, it might be decreased manpower because there is right now -- you know,* *we spend quite a bit of time jaw-boning Agreement States and talking to them and having workshops and Meetings, and that might drop off quite a bit if there were some standards that everybody under-stood.
But I can't quantify that.
I expect it to be equiva-lent or less so.
CHAIRMAN HENDRIE: It doesn't look offhand like a manpower --
COWUSSIONER KENNEDY:
The other question is, this applies only to uranium mill tailings piles, is that right?
MR. SMITH:
Yes, sir.
MR. SHAPAR:
Yes, sir.
COMMISSIONER KENNEDY:
And there won't be any ques-tion about that.
- COM.MISSIONER GILINSKY:
As opposed to what?
COMMISSIONER KENNEDY:
As opposed to --
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25 CHAIRNLAN HENDRIE:
Phosphate COMMISSIONER KENNEDY:
-- sludge piles from the geothermal plants in California, which are being emitted out at a greater rate than the uranium mill piles.
MR. SHAPAR:
I don't think there's any question.
COMMISSIONER KENNEDY:
Okay.
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CHAIRMAN HENDRIE:
If I could, if I could poll the Commission and find out -- let me go back to the fundamenta issue.
Is it the sense of the Commission that we would like to move forward and propose legislation by which the radioactiv material and the tailings would come under our regulation out beyond a time when the mill license has lapsed?
COMMISSIONER KENNEDY:
Yes.
CHAIRMAN HENDRIE:
That is the first and fundamental issue.
COMMISSIONER GILINSKY:
Yes.
COM..MISSIONER BRADFORD:
Yes.
CHAIRMAN HENDRIE:
Let us note, then, that the Corrmission J.
is unanimously supportive of going forward with the legislation which captures to the NRC regulation over the long-term of the radioactive materials that are in the tailings piles from uranium mills.
Now, the second item is one of whether the Commission would prefer to go with the draft legislation, leaving to the compatibility requirements of the Atomic Energy Act the muscle to get states to adopt our standards in the Agreement States, o
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23 56 whether -- which would mean the legislation as presented in the base stock paper, attachment "E", I believe, or whether you would like to see a specific requirement in the proposed legis-lation that, with regard to the tailings matters, that the Agreement States must conform -- I'm not sure what the words ought to be.
I am not sure whether minimum national standards are the right words because they are a peculiar language for NRC to use.
I know it is the EPA colloquialism and that fits well.
But for us, I think we might have to find something else.
MR. MEYFRS:
Criteria would be another, better word.
MR. SMITH:
Criteria?
MR. MEYERS:
International criteria.
,1 CHAIRMAN HENDRIE:
Or NRC criteria, at aLy rate.
So~ the question is, which way would one prefer to go there?
You would like to se~*it,explicit?
COMMISSIONER GILINSKY:
Yes.
CHAIRMAN HENDRIE:
Peter?
COMMISSIONER BRADFORD: The same.
CHAIRMAN HENDRIE:
Dick?_
COMMISSIONER KENNEDY:
I think it would be preferable to be explicit if we are going to do it.
CH.Z'i.IRMAN HENDRIE:
So ordered.
We will go forward and ask the drafters to -- I guess, Howard, you will remain the principal 24 agent for this document, !*but I hope that OGC will cooperate Ace-Federal Reporters, Inc.
25 and NMSS and others, and Mr. Ryan's office will put their two
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The concepts to be incorporated into the draft lan-guage are: first, that NRC has or proposes to have criteria or rules or whatever language seems most flexible, I would look for at this point, for control of these materials; secondly, that the state, the Agreement State program should meet as a minimum those stana.ards -- the implication being, if a state wants to muscle up a little tougher than that, they presumably could.
MR. MEYERS:
On that score, the EPA legislation spe-cifically says a state may, if they elect, be more restrictive.
We don't have to do that.
"Ne can just say, they meet ours, period.
CHAIRMAN HENDRIE:
Any sense of the Comnission on that? Actually, i' 14 I would just -- I would just prefer that they meet our require-15 ments, rather than carry on with this other language.
16 COMMISSilCmER BRADFORD:
I would not want to preclude 17 a state from being more restrictive if they desired to do it.
18 COMMISSIONER KENNEDY:
And if these are mim+/-murn stan-19 dards, then by definition --
CHAIRMAN HENDRIE:
Keep the minimum standard concept in that, 21 then.
Okay?
22 COMMISSIONER KENNEDY:
The one thing I would suggest -
- v, 23 i CHAIRMAN HENDRIE:
Let us worry a little bit about the following 24 things.
As we move forward on this, there are several coordina-Ace-Federa1 Reporters, Inc.
25 tion points.
First of all, we ought to let our friends at EPA
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25 58 know about the Commission's decisionv so they are fully aware o, it.
We have been trying to keep them informed one way or another.
I am not sure --
Bill, it might be time for me to go and have lunch again, or perhaps you or somebody could just make an informal.'. contact over there.
Okay.
Secondly, with regard to the Agreement States, do the state officers have any idea what is going on here?
MR. RYAN:
Not in specific terms, no.
CHAIR111AL'J HENDRIE:
I think it would be useful pretty briskly to
)
begin to acquaint them with the directions we are likely to be moving in terms of these criteria, and in fact see if some of the state people have some comments to make.
I would look for some form of a state participation and comment on our criteria as we move forward in the implementation.
I trust that putting together the tailings stabilization criteria is going to go on, whether or not this legislation flies or falls.
MR. SMITH:
Yes, that's right.
Cfl.2\\IRM.<ill HENDRIE:
We need that for our own purposes.
MR. SM~TH:
That's right.
We are working on it now.
CHAIRMAN HENDRIE:
That means that the coordination -- and you know, keeping the state people well informed is an important part of that effort which goes.
Okay?
MR. SMITH:
Fine.
CrlAIRMAN HENDRIE:
I will ask the congressional affairs people to make known to the authorization committee staffs, although I
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25 59 see that one of them won't be surprised by the news -- that we are moving in this direction.
And you can indicate the shape of the thing that is coming.
But clearly, we don't have the language that would go up right at the moment, because we have to include this, the standard --
MR. SHAPAR:
You want a package, section by section analysis, and everything else?
CHAIRMA!"'\\J HENDRIE:
I think so.
COM_MISSIONER KENNEDY:
I think the states should be aware that is the direction we are moving, not just waiting until we get the criteria.
They should know we are going to do this.
It should not come as a surprise when this legisla-tion drops into the basket.
CHAIRMAN HENDRIE:
Individual states may very well want to' talk ' -
to their congressional delegations with regard to their view on this and have input into the legislative process.
I would much rather that everybody be fully informed and know where we stand and get a fair chance to do that, whether they are for it or against it.
One final admonition:
I do have some concern that we keep our Agreement States amiable through these things.
I think the drafting of this requirement into the language, into the proposed legislation -- if you find ways to phrase it which are likely to be more happily received than other ways, why, use the happy ones.
Okay?
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25 adjourned.)
Are there comments?
(No response.)
CHAIRMAN HENDRIE:
Thank you very much.
(Whereupon, at 12:40.p.m., the meeting was 60