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Informs of Jurisdictional Bases for EPA Stds for U Mill Tailings.Epa Acted within Jurisdiction in Setting Stds, Except for Requiring EPA Concurrence Before NRC Could Grant Exemptions for NRC Regulations Implementing EPA Stds
	ML20136F959
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Issue date:	04/10/1985
From:	Plaine H; NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	;
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ML20136E683	List: ML20136E674; ML20136E756; ML20136F959; ML20137M731; ML20137M739; ML20137M747; ML20137M750; ML20137M757; ML20137M791; ML20137M831; ML20137M840; ML20137M847; ML20137M854; ML20137M861; ML20137M864; ML20137N130; ML20137N172; ML20137N189; ML20137N206; ML20137N225; ML20137N275; ML20137N289; ML20137N296; ML20137N326;
References
	FRN-49FR46418, RULE-PR-40, TASK-AII, TASK-SE AB50-2-04, AB50-2-4, SECY-85-125, NUDOCS 8505020536
	Download: ML20136F959 (103)
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w@ ..... as m s m ADJUDICATORY ISSUE April 10, 1985 SECY-85-125 For: The Commissioners From: Herzel H.E. Plaine General Counsel

Subject:

URAMIUM !!ILL TAILINGS - JURISDICTIONAL BASES FOR EPA'S STANDARDS

Background:

The three most recent Commission-level events were: (1) a closed Commission meeting on September 20, 1984 to discuss litigation strategy; (2) a September 28, 198'4 precis of OGC's views on whether the Environmental Protection Agency I

(EPA) acted within its jurisdiction under the Uranium Mill Tailings Ra-diation Control Act of 1978, as amended (UTMRCA) in prcmulgating

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environmental standards for uranium mill tailings at active milling sites; and (3) publication for public comment of a Notice of Proposed Rulemaking (49 Fed.

Reg. 46418, November 26, 1984) and an advance Notice of Proposed Rulemaking (49 Fed. Reg. 46425, November 26, 1984),

both of which requested comments on how to conform NRC's mill tailings regula-

tions to EPA's mill tailings standards.

Public comments have been received on both propcsalsland have been considered in thic paper. As a separate matter, the Department of Justice, in response i ,

to an industry lawsuit challenging EPA's assertion of jurisdiction.to regulate mill tailings, has filed a brief defend-ing EPA's regulations as within its jurisdiction. The case is expected to be heard by the Tenth Circuit in June,

. 1985. .

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Summary: OGC believes that an analysis of UMTRCA 7

and its legislative history shows that:

1. Before UMTECA, EPA, not NRC, had primary authority over both the radiological and non-radiological impacts from uranium mill tailings; I

l 2. During Congressional deliberations over UMTRCA, NRC attempted to reduce substantially EPA's author-ity over radiological hazards of mill tailings by limiting it to EPA's " traditional" authority under Reorganization Plan No. 3, i.e.

authority to promulgate only generally applicable, non-site-specific radiological standards, applicable only outside the bound-aries of the tailings sites;

3. EPA opposed the NRC' attempt to

, transfer to itself EPA's authority 1

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.. to regulate mill tailings. EPA's efforts were partially successful andresultedinaCongres$1onal compromise which precluded EPA from promulgating site-specific stan-dards but which did not restrict EPA to standards applicable'only outside site boundaries. EPA was also given concurrence authority over NRC regulations for controlling non-radiologic hazards.

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4. Except for one instance, EPA acted within its jurisdiction under UMTRCA in setting environmental standards for managing radioactive emiraions and hazardous chemical wastes from uranium mill tailings; and

5. EPA exceeded its jurisdiction by stating that its concurrence would be required before the NRC could

5 grant site-specific, case-by-case exemptions from NRC regulations for implementing EPA's standards. He believe that such a concurrence role by EPA also contradicts the 1983 amendment to UMTRCA which added Section 84c. to the Atomic t

Energy Act.

The Department of Justice (DOJ), to the extent that it has addressed the issues discussed here, agrees with OGC's conclusions. A copy of the part of DOJ's brief which defends EPA's asser-tion of jurisdiction against the same challenges raised here by the AMC is also attached.

We have not been able to consider fully Mr. Tourtellotte's views on this matter because he has not provided the support-ing legal analysis as requested by Chairman Palladino.

6

.. Summary: I. EPA's Standards To understand the scope of EPA and NRC authorities over uranium mill tailings, and the legal bases for EPA's uranium mill tailings standards, it is first necessary to summarize the EPA standards at issue. They fall into two categories:

radiological and non-radiological.

The principal radiologic standard at

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issue is the limit on the rate at which a uranium mill tailings pile will be permitted to release radioactive radon gas into the atmosphere after the associated uranium mill has been closed ,

and the pile has been stabilized for the !

long-term.1 The allowable emission rate l

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There are also limits on the quantities of radioactive material allowed to leach from the tailings piles into the groundwater.

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7 is 20 piceCuries per square meter per second as measured at the surface of the pile. 40 CFR 192.32 (b) (1) (ii) .

The non-radiologic standards are divided into two categories: operational and-post-operational. These standards are ,

i designed to protect the quality of groundwater. As required by section 275b.(2) of the Atomic Energy Act, these standards are consistent with EPA's standards for regulating comparably hazardous material under subtitle C of the Solid Waste Disposal Act (SWDA).

Operational standards apply during processing and prior to mill closure.

, New mill tailings piles and extensions of existing piles must be underlain by Subtitle C of SWDA is the Resource Conservation and Recovery Act (RCRA).

_ _ - _ _ _ - _ = ._-- -

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.. impermeable liners. 40 CFR 4

102.32 (a) (1) . For existing piles, the leaching of hazardous constituents into the groundwater must be limited to specifled concentration limits. 40 CFR 192.32 (a) (2) . These concentration limits are to be monitored by wells drilled at specified compliance points, some of which are near the edges of the tailings piles. 40 CFR 192.32 (a) (iii) .3 The standards also provide for exemp-tions from the requirements for a liner and from the general limits on concentrations of hazardous chemicals in the groundwater (alternative concentration limits, or ACLs).

Ecwever, EPA views ACLs as alternative standards which the NRC or Agreement 3

These wells will also be used to monitor radiologic effluents into the groundwater.

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9 States may set only after: (1) applying the criteria in 40 CFR 2.64.94; and (2) obtaining EPA's concurrence on a site-by-site basis.

Post-operation standards apply after the closure period. 40 CFR 192.32(b). .

t These requirements are the general standards in 40 CFR 264.11:

a. minimization of the need for further maintenance; and

b. minimization or elimination of post-closure escape of hazard-ous constituents.

II. AMC Position The American Mining Congress (AMC) has fully developed the argument supporting the assertion that EPA exceeded its jurisdiction in promulgating the above-

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.. described standards. The AMC's most recent statement of its position on this issue is contained in its comments on the NRC's proposal to conform its mill tailings regulation to EPA's standards.

(See attachment) . It is useful to consider that argument first to identify the aspects of the legislative history of UTMECA which need to be examined closely. The AMC's argument can be summarized as follcws:

1. UMTRCA, by adding Section 275b. (1) to the Atomic Energy Act authorized EPA to promulgate " standards of general application" for the protection of the public health safety and the environment from radiologic and non-radiologic hazards associated with uranium mill tailings.

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2. The term " standards of general application" is a term of art derived from Reorganization Plan No. 3 of 1970. That term limits EPA to setting general standards outside the boundaries of NRC licensed facilities and vests in the NRC exclusive jurisdiction to set requirements inside the bound-aries of NRC licensed facilities;

3. By using this term of art, and by explicitly authorizing the NRC, .

through the conduct of its licens-ing activities, to implement and enforce EPA's standards, section 275d. of the Atomic Energy-Act, Congress intended in UMTRCA to I

l adopt the traditional division of responsibility between EPA and NRC 1

for regulating radiologic hazards and to extend that division of

12 responsibility to.the regulation of non-radiologic hazards; and 4

4. EPA exceeded its authority under UMTRCA because the tailings stan-dards apply inside the site boundary, e.g. established an effluent limit on radon entering the atmosphere from the surface of a tailings pile and concentration limits on chemicals entering the groundwater under a tailings pile, 4

In partial support of its position, AMC relies on two legal memoranda by EPA's General Counsel. As relevant here, these memoranda primarily address the question of whether EPA could establish work practice type requirements in the standards for abandoned tailings piles to be cleaned up by DOE. Under UMTRCA, DOE's responsibilities are different from NRC's, and EPA's standards for active tailings piles explicitly refer to standards under SWDA. Thus, the General Counsel's memoranda do not consider how the legislative history of the UMTRCA provisions affects EPA's authority to set environmental standards for tailings or active mills.

Besides not being on point, the EPA memoranda, as a matter of law, are not due much weight. An agency's interpretation is important evidence of Congressional intent only when the agency's interpretation is contemporaneous with the enactment of the statute being interpreted, not three years later, as here.

13 and in some cases required engineering features on site, e.g.

liners and monitoring wells.

III. OGC Analysis A. Backcround i

We believe that the AMC's position is inconsistent with UMTRCA, especially as illuminated by its legislative history.5 The NRC staff has the following comments on the AMC's analysis of legislative history of UMTRCA:

The material dealing with UTMRCA is highly selective and misleading. The legislative matter cited relates to the Udall version of S 2.75b. The Udall version was not enacted. Instead, the Dingell version was enacted.

T.he Dingell version omitted any reference to site boundaries and added health and safety to the scope of EPA authority. The brief does not mention the following: (1) two letters from Castle (then Administrator of EPA) to the Congress that are more authoritative legislative history than Hendrie's or Rowe's testimony since the letters provided the model for the Dingell version; (2) Part 2 of the House Report 1480, p. 46, that addresses the Dingell version on which Hendrie and Rowe testified; and (3) the testimony of Senator Randolph explaining the scope of EPA authority.

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.. To fully appreciate that history, a brief review of the overall history of the regulation of mill tailings is essential. Accordingly, we have provid-ed such a review as a preface to our review of the legislative' history of UMTRCA.

Uranium mill tailings are the sand-like wastes produced in tremendous quantities in the process of mill uranium ore.6 Prior to 1970, ,there was little Federal recognition of either the radiologic or non-radiologic ha:ards associated with mill tailings. Consistent with this belief, the Atomic Energy Commission had interpreted the Atomic Energy Act to exclude mill tailings from the statutory definitions of source, byproduct or 6

Approximately'two thousand pounds of ore are required to produce batween one and five pounds of uranium.

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+ 4 15 special nuclear materials. Because

_. these definitions are the regulatory bases for Commission's jurisdiction over radioactive materials, the exclusion of mill tailings from these definitions left the Commission without authority to regulate mill tailings. Moreover, because no other federal agency had authority over tailings, they went unregulated by the Federal Government through the mid-1970's. In fact, because of their attractive physical properties, mill tailings were used as sand in cement for roads and foundations and as fill for both public and private buildings.

Although the Federal regulation of tailings started in the mid-1970's, the regulatory situation began to change in the mid-1960's as Federal agencies l became concerned about water pollution associated with tailings piles. But the l

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- seriousness of the problem was not fully appreciated until 1970 when the public became aware of the carcinogenic effects of the radioactive radon gas which is emitted by mill tailing for hundreds of thousands of years. In 1972, Congress enacted Public Law 92-314 authorizing the federal government to devise a program to remove tailings from struc-tures in Grand Junction, Colorado. See, generally, H. Rep. No. 95-1480, Part I, 95th Cong., 2d Sess. pp 11-12 (1978).

During this period, public and Federal attention also began to fccus on the need for closer regulation of the active

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7 The source of radioactive radon in mill tailings is the radioactive decay of thorium which has a half-life of seventy-five thousand years. The thorium decays radioactively to radium which is also radioactive and decays to radon. Because the half-life of thorium is much longer than the half-life of radium, the rate of production of radon in mill tailings. remains virtually unchanged for seventy-five thousand years.

17 uranium commercial uranium milling industry. The first step in this direction was accomplished by the Resource Conservation and Recovery Act of 1976 (RCRA). That Act amended the Solid Waste Disposal Act to vest in the Environmental Protection Agency (EPA) t authority to regulate the management and disposal of hazardous wastes. This authority covered uranium mill tailings because they contain heavy metals and other hazardous wastes, as well as hazardous radioactive materials over which the Atomic Energy Commission had eschewed regulatory authority.8 I

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In 1977, the Clean Air Act was amended to give EPA authority to regulate the emission of hazardous pollutants into the air. The authority covers radioactive air pollutants such as radon from mill tailings piles. EPA has exercised this authority by relying o.n the Commission's

regulation of radon emissions.

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18 However, due to budgetary constraints and the need to deal first with more hazardous wastes, EPA did not exercise its authority to regulate mill tailings under RCRA. Rather,'che Commission indirectly regulated tailings piles at active mills by stretching NRC authority to license the processing or milling of

. uranium cre. See, generally, testimony by Chairman Hendrie at Hearings Before the Subcommittee on Energy and the Environment of the House Committee on Interior and Insular Affairs, 95th Cong., 2d Sess. pp. 75-77 (1978) (Udall Subcommittae) ; and at Hearings before the Subcommittee on Interstate and Foreign Commerce, 95th Cong., 2d Sess.

p. 216 (1978) (Dingell Subcommittee).

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

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19 impose regulatory requirements on hazardous chemicals at active milling sites and on the stabilization of tailings piles after active uranium milling was concluded and the license had been terminated. These Commission actions were taken in close cooperation I

with EPA.

Although tailings piles at-active mills were coming under Federal regulation, nothing was being done about the aban-doned mill tailings piles left over from the nuclear weapons program. To avoid repetition of the misuse of such tail-ings as at Grand Junction, the Adminis-tration, and some members of Congress, proposed legislation for the clean-up and stabilization of the abandoned tailings sites. During the course of hearings on these bills, it became clear that tailings piles at active milling sites would present the same hazards l

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.- :e 20

_. once milling had been concluded.

Because the Commission had no regulatory authority over those piles once the milling license had been terminated, the Commission had no basis for enforcing the regulatory requirements it imposed under the authority of NEPA. This regulatory hiatus concerned both the Commission and the Congress, and the Commission proposed legislation to establish explicit NRC authority over mill tailings. See, for example, the colloquy between Mr. Dingell and Chair-man Hendrie, Hearings before the Subccm-mittee on Energy and Power of the House Committee on Interstate and Foreign Commerce, 95th Cong., 2d Sess. pg. 284 (1978).

The Commission's proposed legislation was introduced by Congressman Udall as H.R. 13382. Chairman Hendrie described the intent of that bill in testimony 1

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21 before the Udall subcommittee. That bill would have divested EPA of all authority to regulate mill tailings under RCRA by defining tailings as byproduct material. Because the Atomic ,

i Energy Act applies to only the radioac- l tive aspects of regulated materials, the I

Commission still expected to rely on NEPA to regulate the non-radiologic hazardous aspects of tailings. EPA's only authority over the radiological aspects of tailings would have been the establishment of ambient environmental radiation standards under Reorganization Plan No. 3 of 1970. Hearings Before the Subcommittee on Energy and the Environ-ment of the House Committee on Interior i

and Insular Affairs, 95th Cong., 2d Sess. 135 (1978). The AMC relies very heavily on the legislative history up to this point. The AMC does not address I most of the subsequent developments i

22 which, as discussed below, led to the final form of UMTRCA.

EPA was not invited to testify on H.R.

13382 before the Udall Subcommittee.

But in a letter to Congressman Udall, Administrator Costle expressed serious reservations about transferring to the NRC the principal responsibilities for regulating mill tailings. In particu-lar, Administrator Costle was concerned that the radioactive and non-radioactive hazards in tailings be subject to the same level of regulation as was applied to similar hazards in materials regulat-ed by EPA under RCRA.' To ensure such consistency in regulation, Administrator Costle suggested that in addition to 9

For example, EPA regulates the hazards frcm radioactivity in phosphate mining wastes which, like uranium ,

mill tailings, are generated in large quantities and are i contaminated with low concentrations of radium. .

23 EPA's authority under Reorganization Plan No. 3 of 1970, EPA also be authori-zed to set environmental standards, and that NRC be required to implement EPA's standards and criteria, and that the MRC

.be required to adopt and enforce mill tailings requirements comparable to those required for hazardous materials '

under RCRA. Hearings before the Subcom-mittee on Energy and Environment of the House Committee on Interior and Insular Affairs, 95th Cong., 2d Sess. pp. 519-20 (1978).

The Udall Subcommittee responded to Administrator Costle's concerns by amending H.R. 13382 to add a proposed Section 275 to the Atomic Energy Act.

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The amended bill, H.R. 13650 (Udall l

l version), would have authorized EPA to l

promulgate generally applicable stan-

, dards for the protection of the general l environment from radiological and

24 non-radiological hazards of mill tail-ings. Such standards were to impose limits on exposures or levels, or quantities or concentrations of hazard-ous materials in the general environment outside the boundaries of processing sites. This bill was reported to both the Udall Subcommittee and the Dingell Subcommittee as H.R. 13650 (Udall version) .10 Soon thereafter, the Dingell Subcommit-tee held a hearing on H.R. 13382.

Chairman Hendrie repeated his understanding that H.R. 13382 would vest in the NRC authority to regulate both radiological and non-radiological hazards from mill tailings. Hearings O

H.R. Rep. No. 95-1480,.Part 1, 95th Cong., 2d Sess.

(1978) accompanied H.R. 13660 (Udall version). Therefore, any statements in this report are limited to the language in that. bill.

25 before the Subcommittee on Energy and

,. Power of the House Committee on Interstate and Foreign Commerce, 95th Cong., 2d Sess pp. 342-43 (1978).

Mr. Rowe, for EPA, summarized the Administrator's objections to H.R.

13382. Id. at pp. 364-66. Thereafter, I

Mr. Finnegan, Counsel for the Dingell Subccmmittee, noted that H.R. 13650 (Udall version) had attempted to address EPA's concerns. Id. at 384. Mr. Galpin and Mr. Rowe acknowledged this, but noted that there were problems with H.R. 13650 (Udall version) . For example, they were concerned that the I definition of EPA's standard-setting l

authority was too restrictive and that EPA should be authorized to establish management practices for such waste as are established for similar wastes under l RCRA. Id. at 385.

26 Mr. Finnegan also discussed with Mr. Rowe whether EPA's standards would be set so as to apply to activities within the boundaries of milling sites.

Mr. Rowe stated that, in general, EPA's standards would operate outside the.

milling sites, and referred to EPA standard setting authority under Reorganization Plan No. 3 of 1970.

Hearings before the Subcommittee on 2nergy and Power of the House Committee on Interstate and Foreign Commerce, 95th Cong., 2d Sess 392 (1978). Mr. Finnegan suggested that H.R. 13650 (Udall ver-sion) had been drafted to give EPA broader authority to set standa.rds without regard to site boundaries. Id.

at 393 and 396-97. And Mr. Galpin, for EPA, noted that the idea of a discern-ible fence or boundary might not have any meaning for tailings disposal. Id.

at 397.

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27 After the hearing, a modified version of H.R. 13650 was reported out by the full House Committee on Interstate and Foreign Commerce. This version differed from the one reported by the Udall Subcommittee in the treatment of site boundaries. The hearings cited above .

i show that the changes were deliberate, and were intended to provide a special definition for the term " standards of general application" as applied to mill tailings. H.R. Rep. No. 95-1480, Part 2, 95th Cong. 2d Sess. 46 (1978). In particular, EPA's standards were no longer limited to off-site standards.

Rather, EPA was authorized to "promul-gate standards of general application for the protection of the public health, safety and the environment from radiolo-gical and non-radiological hazards associated with [ mill tailings]".

28 To resolve the differences in the two versions of H.R. 13650, negotiations were held by representatives of EPA, NRC and the staff of the two House Commit-tees: Commerce and Interior. The resulting compromise led to the adcption of the Dingell Committee language in H.R. 13650 as the language which was eventually included in the Uranium Mill Tailings Radiation Control Act (UMTRCA).

As discussed above, the language delib-erately does not contain any reference to site boundaries. Thus, Mr. Rowe's testimony on the general inapplicability of EPA's standards to areas outside site boundaries does not apply to UMTRCA because his testimony did not address the language in the final version of the bill.

In exchange for not limiting EPA to off-site standards, H.R. 13650 did preclude EPA.from establishing site-

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I 29 specific requirements for the management

.. of uranium mill tailings. H.R. Rep. No.

95-1480, Part 2, 95th Cong., 2d Sess. 46 (1978).

The only action in the Senate relevant to the matters at issue here was Senator Randolph's attempt to further define the relative roles of EPA and NRC. He 11 The AMC relies on the unpublished transcript of a markup session by the Senate Committee on Environment and Public Works to support its claim that the Committee's staff indicated that the Senate bill S. 2584 was intended to limit EPA's authority to off-site standards. The Senate bill was not enacted and, thus, as a r.atter of law, the unpublished transcript of a markup session indicating the intent of staff members has little or no weight as legislative history of UMTRCA. As the following cases show, the " weight" of the transcript of a markup session varies with the factual circumstances such as the availability of other, more reliable, indicia of legislative intent. But, in all c&ses, to be considered at all as legislative history, the bill being marked up must have been the bill ultimately enacted into law.

Moreover, the statements made during the markup must have explicitly addressed the very issue in controversy. Recan

( v. Wald, 468 U.S. , 82 L. Ed 2d 171, 182-3 (1984). (The transcript of a markup session of the bill that ultimatly was enacted into law is part of that law's legislative history. But statements by individual legislators, unless

[ Footnote Continued]

s.

. 4 ,

.;w 30 began from his concern that the Commis-

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,e sion's regulation of mill tailings bp no less stringent than the requirements that tailings had been subject to under

\ Subtitle C of SWDA. Accordingly, he insisted that EPA retain a continuing _

role of tailings regulation by estab-lishingstandardsconsistentwit5those.

contained in Subtitle C of SWD .and that the NRC be required.to promulgate management requirements at least as

[ Footnote Continued]

very precisely directed to the intended meaning of particular words in a statute, cannot be taken as bearing materially on clear statutory language); Thomas v. Barry, 729 F.2d 1469, 1473 at n. 30 (C.C. Cir. 1984). (Statement by one of the Act's architects as recorded in the transcript of a markup session taken as indicative of legislative intent); Nevada Power Co. v. Watt, 711 F.2d 913, 922-25 and

n. 8 (10th Cir. 1983). (Transcripts of markup sessions of bill that was enacted is part of its legislative history but not officially relied on to interpret statutory language as were the Conference, House and Senate Reports.) ; Borrell v.

U.S. International Communications Agencv) 221 U.S. App. D.C.

32 682 F.2d 981 (D.C. Cir. 1982). (Remarks in markup session relied on as indicating Congressional intent).

Tagel v. Regan, 643 F.2d 1058 1060 (5th Cir. 1081).

(Colloquy in transcript markup session found persuasive where resolution of issue discussed during markup session was explicitly embodied in the language of the bill as enacted.)

5

31 stringent as requirements under SWDA.

- The only limit on EPA was that "the Administrator is to prescribe general standards of performance, not specific management requirements and not site-specific." 124 Cong. Rec. S. 18749 (1978). He further explained that such t

general standards could be siting standards, general standards for site design and preparation, use restriction standards and general pile stablization standards. He added that " limitations on environmental exposure or emissions or other introduction of radioactive or any other constituents of mill tailings in the air or ground or surface wastes, are also within the authority of the Administrator under new Section 275."

Id. Nowhere does Senator Randolph l

32

.. mention the site boundary as a limit on EPA's jurisdiction.12 As finally enacted, UMTRCA incorporated the language in H.R. 13650 as agreed to by both Committees. Section 275b. (1) ,

as amended, provides EPA authority to promulgate standards of general applica-tion:

b. (1) As soon as practicable, but not later than October 31, 1982, che Administrator shall, by rule, 12 AMC relies on a letter of August 9, 1978 from Carlton Stoiber, NRC Assistant General Counsel, to members of the staff of the Subcommittee on Nuclear Regulation on the Senate Committee on Environmental and Public Works which supposedlj reports an agreement between EPA Administrator Costle and NRC Chairman Hendrie on the agencies' respective roles under.UMTRCA. According, to that letter, EPA would limit its standard-setting to off-site standards. While that may have been the agencies' understanding as of August 9, an understanding reflected in the August 11 Udall version of H.F. 13650, it is not the understanding contained in the September 30 Dingell version of'n.R. 13650 which was enacted, nor in the Septer.ter 30 House Report acccmpanying that bill.

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33 propose, and within 11 months

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thereafter promulgate in final form standards of general application for the protection of the public health, safety and the environment from radiological and non-radiological hazards associated t

with the processing and with the possession, transfer, and disposal of byproduct material, as defined in section 11e.(2) of this Act, at sites at which ores are processed primarily for their source material i content or which are used for the disposal of such byproduct material. In establishing such standards, the Administrator shall consider the risk to the public health, safety and the environment, the environmental and economic costs of applying such standards, I

and such other factors as the

provisions of UMTRCA - all in conflict with fundamental principles of administrative law, I

.. B. i EPA Standards For Mill Tailings Are Not " Generally Applicable Standards" As Congress Intended In UMTRCA Purportedly exercising his authority under Section 275(b) of the Atomic Energy Act, EPA's Administrator signed and released to the public final uranium and thorium processing sites standards on Septemoer 30, 1983, which were thereafter promulgated on Octocer 7,1983,48 Fed. Reg. 45,926, eisec., establishing radiological and nonradiolog-ical standards for uranium and thorium mill tailings.9/

1.

Indisputably, EPA's Standards Apply Within Site Boundaries And Im-pose Design. Engineering, And Management Raouirements EPA's radiological standards require that tailings disposal sites be " designed" to assure that radon emissions f.em the surface of tailines oiles will be limited to 20 '

picoeuries per square meter per second (pCi/m2/sec) (the " radon emission standard").

48 Fed. Reg. 45,947 (1983) (to be codified at 40 C.F.R. S 192.32(b)(1)(ii. Accercing to EPA, the primary purpose of its radon emission stancard is to require a thick earthen cover, or equivalent, over the tailings pile. 48 Fed. Reg. 45,930-45,931; 45,940. All active tailings piles are within the boundaries of mill sites. EPA also requires cleanup of radium in soil within the licensed mill site area, whenever levels exceed 5 picoeuries per gram (pC1/g) in the first 15 centimeters of soil surface averaged over 100 square meters or 15 pC1/g in any 15 centimeter layer below the surface averaged over the , 9/ The final standards for uranium mill tailings are identical to those for thorium mill tailings. See 48 Fed. Reg at 45,947 (1983) (to be codified at 40 C.F.R. S 192.41). EPA's final active site standards also require thorium .mit tailings to meet the "25 millirem standard." which is already applicaole to uranium mill tailings. Comcare 40 C.F.R. 5 190.10(a) (1983) with 48 Fed. Reg. at 45.947 (1983) (to De coctiiec at 40 C.F.R. S 192.41(d)). Therefore. " mill tailings" as used herein refer to both uranium and thorium tailings.

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

1 l l Environmental imoact Statement for Standards fer the Control of Svoroduct 'f ater:als from Uranium Ore Processine (40 C.F.R. 192). EPA 520/1-33-003 (Septemoer 1983)

       -. (FEIS), Vol. II. at A.1-25 (Response to Comment 16). In theory, NRC is authorized to grant exemptions to the liner requirement, out "only if miration of hazardous constitu-ents into the groundwater or surface water would be preventec indefinitelv.' 48 Fed.

Reg. 45,941; see also 40 C.F.R. S 192.32(a)(1), incorporating by reference 40 C.F.R. 5 264.221(b)(1983); 48 Fed. Reg. 45,946-45,947 (emphasis added). EP A's liner 'standarc" operates within the boundaries of the mill tailings sites. See FEIS, Vol. II, e A.1-28 (Response to Comment 24). Moreover, the liner requirement and the implicit requi; e ent that it be synthetic are engineering or control technology requirements. EPA's secondary standard" requires that groundwater at the edge of the tailines oile de protected as if it were a source of drinking water for those constituents covered by EPA's National Interim Primary Drinking Water Regulations. 40 C.F.R. S 192.32(aX2), incorporating by reference 40 C.F.R. 5 264.92 (1983); 48 Fed. Reg. 45,347 (emphasis adcec). , Numerous other constituents are controlled at the edre of the tailines Dile, with a prohibition against any increase in backpound concentrations. 40 C.F.R. S 192.32(a)(2), incorporating by reference 40 C.F.R. SS 254.93, 264.94 (1983). See 48 Fed. Reg. 45,947 (emphasis added). Under limited conditions and subject to a showing that corrective action is impracticable, EPA authorizes NRC (or Ag eement States) to establish on a site specific basis alternate concentration limits at the edre of the tailines oile. so long as background or drinking water eencentrations will be met no further than either (1) 500 meters from the edre of the tailings oile or (2) the site boundarv. whichever is closer. 40 C.F.R. S 192.32(a)(2)(iv), incorporating by reference 40 C.F.R. S 264.95 (1983); 48 Fed. Reg. 45,947 (emphasis added). Alternate concentration limits at the edre of a tP.ilines oile that Would allow background or drinking water concentrations to be exceeded beyond (1) 500 meters from the oile or (2) the site boundarv. whichever is c!cser, may be adopted by NRC (or an Ageement State) only with EP A's concurrence. 37 revision thereof. (Emphasis f _. cupplied). < The legislative history makes clear that EPA's authority to promulgate standards for non-radiologic hazards is.in addition to its general standard setting authority under the Atomic Energy Act. Nowhere in the legislative history of the bill which was enacted into law is there any indication that this new authority is to be limited to the on-site /off-site distinction applicable to EPA's authority over radiological hazards under Reorganization Plan No. 3.13 Thus, the plain language of the i 13 The AMC has put forward three reasons which it believes show that EPA has no greater jurisdiction over the non-radiological aspects of mill tailings than over the radiological aspects of tailings. We find none of these reasons even colorably persuasive. First, AMC ignores the introductory language to Section 275b.(2), language which

explicitly requires EPA's non-radiological standards to be consistent with EPA's regulations under Subsection C of

[ Footnote Continued] l . l __ _

34 i ~ Administrator determines to be ! appropriate. l 1 l As discussed above, Congress intention- l ally deleted from this section of UMTRCA ! any explicit reference to site boundaries. While it could be argued that this deletion was intended simply to eliminate redundant language, because EPA's limitation to set standards outside the site boundary is already included in the term " standards of general application" as used in Reorganization Plan No. 3, such an interpretation of Congressional intent is not supported by the legislative history. The legislative history shows consideration of, and rejection of, the approach in Reorganization Plan No. 3. Therefore, we believe that Congress intended to permit EPA to establish on-site standards for both radiologic and non-radiologic hazards.

39 tailings standards are within the scope

   ,,                      of EPA's jurisdiction, so long as those standards are consistent with the standards EPA has promulgated under subtitle C of the SWDA. EPA's mill tailings standards satisfy this test because those standards are just a straightforward incorporation of the SWDA standards for comparable hazardous wastes.

Nor do we believe that section 275.d indicates that EPA's standards are too detailed. Section 275.d provides:

                                   "d. Imolementation and enforce-ment of the standards oremulgated pursuant to subsection b. of this section shall be the responsibility (Footnote Continued}

the onsite/offsite distinction. Thus, we find nothing of merit here. l

36 recuired under subtitle C of the Solid Waste Disposal Act, as amended, which are applicable to such hazards: Provided, here, that no permit issued by the Administra-tor is required under this Act or the Solid Waste Disposal Act, as amended, for the processing, possession, transfer, or disposal of byproduct material, as defined in section 11e(2) of the this Act. The Administrator may periodically revise any standard promulgated pursuant to this subsection. Within three years after such revision of any such standard, the Commission and any State permitted to exercise authority under section 274b. (2) shall apply such revised standards in the case of any license for byproduct material as defined in section 11e.(2) or any l 1 1 i 1 _ _ - . ~ .

41

                  " (1) the Ccmmission deems
     ..      appropriate to protect the public health and safety and the environment from radiological and non-radiological hazards associated with the proceeding i

and with the possession and transfer of such material,

                 " (2) conforms with applica-
            .ble general standards promulgated by the Administrator of the Environmental Protection Agency under section 275, and
                " (3) conforms to general requirements established by the Commission, with the concurrence of the Administra-tor, which are, to the maximum extent practicable, at least i

I I l l

38 statute implies that EPA's uranium mill [ Footnote Continued] SWDA. Instead, the AMC stops at Section 275b. (1) , which the term " standards of general application" applies to both radiological and non-radiological standards. The suggestion that this general characterization of both types of standards somehow qualifies the explicit Congressional directive in Section 275b. (2) is inconsistent with the principles of statutory construction. Second, AMC relies on its incomplete analysis of the legislative history to again argue that the onsite/offsite dichotomy was intended to apply to any statutorily required . consistency between EPA's non-radiological standards for l mill tailings and its regulations under SWDA. We find l nothing in the legislative history to support this contention. Moreover, contrary to AMC's contention, rejection of AMC's interpretation does not render Section 84a(3) superfluous. Section 84a(3) applies to mill tailings requirements promulgated by the NRC, and requires such - requirements to be consistent with SWDA. By enacting this provision, Congress simply wanted to ensure that all NRC regulations of mill tailings, including NRC regulations which are promulgated to do more than just implement EPA's general standards, are consistent with SWDA. Finally, the AMC attempts to convert a jurisdictional

argument into a substantive contradiction regarding NRC's l compliance with SWDA. SWDA was enacted before UMTRCA, and

! explicitly excluded from EPA's jurisdiction under SWDA l radioactive materials regulation by the NRC under the Atomic Energy Act. Now that UMTRCA has amended the Atomic Energy Act to include mill tailings as a byproduct material, EPA has no jurisdiction over such material under SUDA. This is correct. But it does not follow, as contended by the AMC, that there is an inconsistency between the UMTRCA requirement that NRC's regulations be consistent with EPA's regulations under SWDA and the Atomic Energy Act. Moreover, to the extent that the argument is understandable at all, it boils down to the AMC'.s interpretation of UMTRCA to require (Footnote Continued]

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

40 of the Commission in the conduct of its licensing activities under this ' Act. States exercising authority l pursuant to section 274b. (2) of this Act shall implement and enforce such standards in accor-j dance with subsection o. of such section. (Emphasis supplied.) The Commission's implementing obliga-tions under UMTRCA are explicitly provided by section 84a. of the Atomic Energy Act. It provides: . i "SEC 84 AUTHORITIES OF COMMISSION RESPECTING CERTAIN BYPRODUCT fiATERIALS.

                                                 "a. The Commission shall insure that       the management of any byproduct material, as defined in section lle.(2), is carried out in such manner as-l

i l 45 resolved definitively by the 1983

            , . amendments to UMTRCA. The amendments to sections 84 and 275o of the Atomic Energy Act vest authority in the Commis-sion and Agreeme,    States to relax NRC requirements promulgated to implement EPA's standards and to relax EPA's            .

standards themselves without EPA's concurrence. Sections 19 and 20 of Pub. s L. No. 97-415 (1983). Section 20 provides: Section 84 of the Atomic Energy Act of 1954 is amended by adding the following at the end thereof:

c. In the case of sites at which ores are processed primarily for their source material content or which are used for the disposal of '

byproduct material as defined in section 11e.(2), a licensee

E 42 comparable to recuirements applicable to the possession, transfer, and disposal of similar hazardous material i

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

                                            . _ - . .      _    ._..m,.      _.    . _ , - _ . . . . . . _ . . _ _ _ . - , _ , . , . _

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

44 obtain EPA's concurrence in the NRC's

                               " general requirements" for managing mill tailings. Such concurrence appears to be limited to the regulations which the Commission will promulgate to implement EPA tailings standards, and does not appear to apply to site-specific exemp-tions determined on a case-by-case basis. If EPA's concurrence were required on site-specific exemptions, EPA would be injected into the NRC licensing process contrary to section 275d. of the Atomic Energy Act which authorizes only the NRC tc implement and enforce EPA's standards.

Any doubt about the extent of EPA's concurrence authority seems to have been 15 It could also be argued that EPA concurrence in NRC site-specific exemptions is tantamount to an EPA permit under SWDA in direct contradiction to section 275b.(2) of the Atomic Energy Act.

49 requirement need not be exercised site-specifically. More generally, in setting standards EPA exercised the independent judgment regarding practicability, which Congress required EPA and NRC to exercise within their respective standard-setting and implementation roles. Congress did not thereby vest NRC with jurisdiction to set, much less apply, alternative health and environmental protection ,' standards. Section 84 merely

!                                  authorizes alternate NRC require-ments to be used at a site when doing so represents maximum practi-cable adherence to NRC requirements and when doing so would also attain EPA standards.

In a related area, we believe the authority to apply alternatives cannot be exercised in advance of establishing " specific requirements adopted and enforced by the Commis-sion" under the AEA. We disagree with EPA on several grounds. I i First, although Section 84c. explicitly limits the Commission's exemption

authority to " specific requirements I.

adopted and enforced by the Commission" under the Atomic Energy Act, we believe that " specific commission requirements"

46 may propose alternatives to specific requirements adopted ! and enforced by the Commission l

                                 .                            under this Act. Such alterna-             l tive proposals may take into account local or regional conditions, including geology, topography, hydrology and meteorology. The Commission may treat such alternatives as satisfying Commission require-ments if the Commission determines that such alterna-tives will achieve a level of stabilization and containment

of the sites concerned, and a level of protection for public health, safety, and the environment from radiological and non-radiological hazards i associated with such sites, which is equivalent to, to the l extent practicable, or more

d 51 practicable, would achieve safety levels

~~

equivalent to those which would be achieved by compliance with NRC's requirements and EPA's standards. Thus, the NRC is authorized to approve an alternative which does not provide the same level of protection of public I health, safety and the environment which would be achieved if EPA's standards were complied with fully. Third, EPA reads int.o the statute a class of requirements called implement-ina requirements which EPA then asserts are the only requirements for which the NRC can approve alternatives under Section 84c. Ul1TRCA does not use this phrase; Section 84c. refers to only

          " specific requiremen*:s: adopted and enforced by the Commission."                      The general phrase is not limited to imple-menting requirements.         Rather, this phrase is clearly intended to include i

e l l 48 necessary to protect public health and'the environment. Rather it authorizes NRC to approve or employ licensee-preposed alternatives to NRC's own general implementing requirements when such alternatives would provide the level of contain-ment, stabilization, and protection ) of health and the environmen't provided by existing NRC require-I ments and EPA standards. With respect to alternate concen- . tration limits (ACLs) and delisting of hazardous constituents, EPA established, consistent with its standards under Solid Waste Dis-posal Act, as amended, general mechanisms for alternate standards based on its judgment that such mechanisms could ensure equivalent protection of public health and the environment. NRC claims that EPA overreached, because, in its view, such mechanisms involve site-speci-fic considerations that NRC

believes Section 84c placed within its exclusive purview. We disagree i

with NRC's interpretation of i Section 84c and of the concurrence issue. The fact that EPA's standards (or any standards, for that matter) operate in a manner I specific to sites render them subject to change or invalid under Section 84c. The general criteria i involved in carrying out these mechanisms for alternative standards require health and environmental judgments. These judgments are clearly within EPA's purview. Moreover, such mechanisms were provided by the SWDA standards recognized in UMTRCA, and - as NRC l is aware - EPA's concurrence i L

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

Conclusion:

In conclusion, we believe that the better legal view is that EPA generally has acted within its jurisdiction to set

generally applicable environmental standards which include generic on-site implementation provisions. He are also confident that the Commission is authorized under section 84c. of the Atomic Energy Act to grant exemptions from EPA's standards without obtaining EPA's concurrence.

l 4

                                   ,(/    -      - (C?',d'r     N Herze H.E. Plaine General Counsel Attachments:                            DISTRIBUTION:

1. AMC Comments Commissioners

2. Excerpt from DOJ Brief OGC Region IV OPE EDO OI ELD OCA ACRS OIA ASLBP OPA ASLAp SECY

I l I 50 j l can be deemed adopted without a rulemak-

ing proceeding. As EPA notes, Section i 84a(2) requires the Commission to ensure that tailings are managed in conformance with EPA's standards. This, we believe, creates a statutory obligation by the Ccmmission to enforce EPA's standards i independent of whether the Commission adopts regulations which would clarify how the Commission would enforce those standards. Thus, we believe that the Commission can now consider alternatives to EPA's standards. i Second, EPA is incorrect in asserting that licensee alternatives approved by the NRC must provide the same level of j containment, stabilization, and protec-tion of health and the environment as i provided by existing NRC requirements and EPA standards. Section 84c. explic-itly states that the NRC may approve alternatives which, to the extent

1 52 I all requirements adopted by the Commis-sion to regulate mill tailings. Thus, for example, if the Commission adopts as its requirements EPA's detailed stan-dards for water protection, the fact that these NRC requirements are also EPA standards is irrelevant to the NRC's Section 84c. exemption authority for two reasons: (1) the legally operative circumstance is that the requirements were adopted specifically by the NRC, the source of the requirements is , immaterial to the statutory scheme; and (2) Section 84c. authorizes the NRC to grant exemptions from requirements designed to achieve full compliance with EPAs standards. Finally, EPA has not effectively responded to the Commission's argument that EPA site-specific concurrence in exemptions contradicts the prohibition on EPA's issuance of a permit. Section

AMERICAN MINING CONGRESS COMMENTS RE: PROPOSED URANIUM MILL TAILINGS REGULATIONS; CONFORMING NRC REQUIREMENTS TO EPA STAN-DARDS (49 Ped. Reg. 46,418, November 26, 1984) The American Mining Congress (AMC) suomits these comments on the Nuclear Regulatory Commission's (NRC's) proposal to conform its regulations for uranium mill tailings to stancards issued by the Environmental Protection Agency (EPA). AMC is a national trade asscciation wh,1se memoers include a majority of the domestic uranium producers. l NRC's regulations for active uranium processing sites are I 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 througn closure, decommissioning and final stacilization of tailingsIf sites. implemented, these regulations will impose unnecessary and costly ievels of control o a severely depressed uranium industry. Less burdensome and less costly methods of control would provide appropriate, and in many cases greater, protection to the public trealth and safety and to the environment from any potential hazards associated with uranium milling.

SUMMARY

L NRC WOULD ABDICATE ITS CONGRESSIONALLY MANDATED LEGAL SIBILL"!ES AND FUNCTIONS IF IT ADOPTS EPA STANDARDS o Since its ratification of Reorganization Plan No. 3 of 19"O, consistent Congressional policy has been to limit EPA standard setting authority for NRC licensed facilities to generally applicaole standards," meaning stan-dards that are appiloacle outsice site boundaries and that impose no site specific design, engineering or management requirements. 1

                                                ._-           -  -_.-_.-_--t___        _-

4 5 em . G ATTACHMENT 1 b eeei..

IL BECAUSE RADON EMISSIONS FROM MILL TAILINGS PILES DO NOT POSE A SIGNIFICANT RISK OF HARM TO PUBLIC HEALTH, SAFETY OR THE ENVIRON-MENT, NRC'S REQUIREMENU SHOULD FOCUS ON STABI.LIZATION OF TAIL-INGS FOR A REASONABLE PERIOD OF TIME o Because EPA's standards are outside taat agency's juriscietion, SRC must make and just:fy, after notice and opportunity for comment, a significant risk finding tefore acepting any regulatory requirements for mill tailings. IIL NRC MUST ASSURE THAT THE COSTS OF ANY REGULATORY REQUIREMENTS FOR MILL TAILINGS ARE REASONABLY RELATED TO RISES o NRC has provided no analysis establishing that its propcsed mill tailings regulations are reasonaoly related in terms of ecsts, risks and benefits. t It must do so before finalizing any requirements. Moreover, the puolic should be given an opportunity to comment en any such analysis before finalization of requirements. IV. ANY NRC REQUIREMENU SHOULD PROVIDE FOR- DISTINCTIONS BETWEEN R2usuNG AND NEW SITES AND SHOULD ALLOW FOR MAXIMUM SITE SPECIF- _ IC FLEXIBILITY o As stated by Congressman Udall during Heuse consideration of UMTRCA: It is cut intentien that the Commission and the States, in implementing standarcs and regulations for mill tailings control, consider possible differences in applicacility of such requirements to exist:ng tailing sites relative to new tailing sites. 124 Ccng. Rec. H12969 (daily ed., October 14,19~3). _ In support of its comments, AMC is filing its comments on EPA's Active Site Standarcs, its briefs in litigation challenging EP A's active site standards, and, for the Commission's convenience, a bound volume of documents relevant to the issue of EPA's 3 l l l ..

l. American Mining Congress Comments on the Nuclear Regulatory Commission's Uranium Mill Tailings Regulations Proposal for Conforming NRC Requirements to EPA Standards I l February 11.1980 1 i l

       $$ d       '

L b5h i

a by UMTRCAi' and intruce en authority reserved by Ccngess in those acts to NRC's sound ciscretien. Accercingly, EPA's stancar:is are not ' generally applicacle stancards' as tnis concept is usec in :cta AEA anc UMTRCA anc are, therefore, a " nullity.3.! As.suen, EPA standards have no 'egal force er effect and NRC is not required by law to cenicem its requirements to EP A's standards. A. NRC is Not Legally Bound To Conform EPA Mill Tallings Standards To ne Extent nat ney Exceed ne Statutory Jurisdiction Of nat Agency Under UMTRCA Administrative agencies are statutcry creatures, and they must faithfully adhere to their statutory jurisdiction. Atchison. Teceka & Santa Fe Railway Co. v. ICC. 607 I t F.2d 1199,1203 (7th Cir.1979) (Atchisen); Summit Nursing Home. Inc. v. United States. 572 F.2d 737, 742 (Ct. Cis.1973); United States Steelworkers of Ameries. AFL-CIO v. NLRE. 390 F.2d 846, 851 (D.C. Cir.), cert. denied. 391 U.S. 904 (1968). There can be no deuct that tne authority of an administrative agency to promulgate regulations is i

 . _ _ _ . _ _  limited by the statute authorizing the regulations." Real v. Simen. 510 F.2d 557, 564 (5th Cir.1975).      Mcreover, 'it is axiomatic that no order or regulation issued by an administ ative agency can confer,en it any peater authority than it has under statute.'
                                                                                                                      )

4/ Puo. L. No. 95-404, 92 Stat. 3021 (1973). 5/ As stated by the Supreme Court in Larionoff: The power of an administrative officer or beard to administer a federal statute and to prescribe rules and regulations to that end is . . . (only} the power to adopt regulations to carry into effect the will of Congress as expressed by the statute. A reculation wnich does not do this, but coerstes

   -                          to e eate a mle cut of narmenv with the statute. ts a mere nullitv.

431 U.S. 364, 873 n.12 (1977), quoting Manhattan General Eculoment Co. v. Commissioner of Inte nal Service. 279 U.S.129,134 (1936) tempnasis accec). Accore Presovtertan S t. Luxe's- Mecical Center v. NLRS. 653 F.2d 450, 481 (10th Cir.1981).

                                                                       . . - .      ,9 ___                    _

o Congess in the Uranium Still Tailings Radiatien Control Act of 1973 (CSITRCA> adeptec the civisien of juriscietien :etween EP rst A and NRC estantisnec in the '370 Recegani:stien Plan witn respectto .scicieg: cal and nenradiciegical aspects of mill tailings. As recognizec ey EPA's general ecunsel, use of the eencept of

                            " generally applicaole standarcs" in U5tTRCA presumptively incicates that Congess intended the same meaning to apply to this phrase as estaolished in the 1970 Reorganization Plan.

All affirmative evidence in the legislative history of U51TRCA confirms that Congess intended to adept the jurisdictional division of the 1970 Reorganization Plan for 31ill Tailings. As reccgnized in Train v. Colorado Public Interest Research Greue, 426 U.S.1 (1976) (T.ain), if Congess had intended to alter the established policy of the Atomic Energy Act (AEA) in U51TRCA, whien amencs that Act, it would have said so clearly. o Incisputacly EPA's stancarcs apply within site councaries, impose c . 3 eng:neering and management requirements, and effectively preclude site specific requirements by NRC. As such, they are :eyond the jurisdiction of EPA and, consequently, are a " mere nullity" of no legal force or effect. United States v. !arionoff. 431 U.S. 364, 373 n.12 (1977) (LarienoffL o NRC's first coliga !cn is to conform its actions to Congessional intent in UMTRCA. Therefere, if NRC should adept EPA's stancards it would aedicate its responsibilities and coligations under U51TRCA in violation of its duty to abide by Congessional intent. 2-

Tha mere issuanea by EPA of mill tailings stcndards cannot ga-a tions. EPA cannot by regulation confer en itself any g eater jurisdic:i nas under UMTRCA cc al:er the coligation of NRC to achere to Ceng in es

na: act.

See Censumers' Counsel. suers. Indeed, to the ex:en: tha: EP A's standards exceed its statutory jurisdicticn. they are a " mere null!!y" and of "no effec:.' Larieneff. suora: City of San:a C! ara, suora. Under the ordinary dictionary definitten, ' nullity" means "the fact of being null and void"; "an act having no legal American validity. Heritare Dictionarv of the Enc!!sh Language (1978) at 900. Thus, NRC is under a dut*/ to conform to EPA standards only to the extent they are within s statutcry that age jurisdiction and do not intrude on jurisdiction reserved to NRC. t That no court has yet invalidated EPA's standards on jurisdiction s is not controlling. NRC's first coligation, as with any administrative agency, is to ~ to Cong essional intent. Under UMTRCA, NRC is not required to conform to g E s:andard: Secticn 84a(2) of AEA, as added by UMTRCA, requires precise conform eniv to applicaole general standards promulgatedImplicitly, oy EPA.3/ this provisien grants NRC discretion, in the firs: instance, to determine ards if EP are " generally applicaole stancards.' Furthermore, such discretion is consistent with the right of each acministrative agency :o determine, in the first ins: tien. ance, its jurisdic-F.T.C. v. Ernstthal. 507 F.2d 488, 490 (D.C. Cir.1979). Moreover, NRC's function under See:icn 84a(2) cannot tes as pre prepcsal suggests in view of Congress' further directicn that NRC pr separate rulemaking with notice and cpportunity for comment. Act of January 4.1983, af 3 contrary, Section 18(a)(3) of :ne amendments states:Nothing . On th e in ' Section 275(f)] may Oe cons: rued 'Nothing in this sucsection (i.e., as affecting the authority

   ' '~

Commission under Section 34 to cromulgate regulations er resconsibility to protec: of the safety and the enytronment." " , 2067, 2078 (1982). Act of January 4,1983, Pub. L. No.puolte 97-415, nealin anc 96 Stat.

1 7 4 e

                                                                                      -n   -,.,,--y          . - . - -            .-,

O ar

        .o l

juriscietica filed with the United States Ccurt of Appeals fcr the Tenth Circuit.1/ AMC also acepts and incer; crates its previously filed comments en NRC's crig:nauy preposed requirement anc its Generic Environmental Impact Statement.

GENERAL COMMENT

S L BECAUSE EPA'S STANDARDS FOR MILL TAILINGS EXCEED THAT AOENCY'S STATUTORY JURISDICTION AND INTRUDE UPON JURISDICTION RESERVED EXCLUSIVELY TO NRC, THE COMMISSION UNLAWFULLY ABDICATES ITS STATUTORY OBLIGATIONS BY ADOPTING EPA STANDARDS The propesal states that the purpose of this rulemaking is to conform existing NRC requirements for the licensing of uranium mills and uranium mill tailings to

                 " generally applicaole requirements" of EPA.      49 Fed. Reg. 46,419 (col. 2).1/     The preposal further asserts that the proposed changes are " essentially nondiscretionary in nature" and are " legally mandated in Section 275b(3) of the Atomic Energy Act, as amendec.' 49 Fed. Reg. 46,421 (col. 2).      For reascns that follow. NRC is acting under errenecus assumptions that are inconsistent with applicaole law.

In essence, EP A's radiolcgical and nonradiological standards - by applying within licensed mill and mill tailings disposal sites and by imposirg design, engineerirg and management requirements - exceed that agency's furisdiction under AEA,3_/ as amended 1/ Thrcughcut its comments to NRC contained herein AMC references legal documents such as AMC and EPA Oriefs or memoranda and the statements of varicus individuals suen as EPA and NRC officials. These references are puolic statements which make up part of the cumulative puolic record which addresses uranium mill tailings issues and should be evaluated as such. 1 2_/ NRC's existing requirements appear at 45 Fed. Reg. 65,521, el sec. (Octccer 3, j 1980). EPA's standards aopear at 48 Fed. Reg. 45,926 (Octccer 7,1963). 3/ Puo. L No. 33-701, 68 Stat. 919 (1954).

provided in its standards. This cenfilet between See:icns 54(a)(3) and 34 seeks :o construe: may te avoided if SRC would examine :he asic requ:.ements of I CSITRCA with respec: to :he jurisdic:!cn of the two agencies. If NRC die s cetermine that no cent'ic:

e: ween the two previsions exis:s, as NRC need conform caly to EPA standards tha; are "applicaole general standards," whien i fully documented below:

these that apply outside site boundaries and impose no site specific. design, ecgineering er management requirements. De conflict between EPA and NRC that now exis:s is unnecessary. Indeed, such ecnflicts were intended to be avoided in U31TRCA.In the floor debate en S. 2584, a related and substantially similar bill to that ultimately enacted as U$1TRCA, I S Domenici states: A basic crineiole of the agreement is the creation of a unified regime for mill tailings so that the various distinct materials which make up a single mill tailings pile need not be sucject to fr(ag' mented, duplicative and potentially conflicting regula-tery activities by cifferent government agencies. 124 Cong. Rec. S15323 (daily ed. September 18,19*S) (emphasis added). Only a clear gecraphic Ocundary Oetween the jurisdictions of the two agencies, such as the s coundaries, consistent with the pre-existing division statec in AEA achieves th principle. That tailings piles will exist into the indefinite future coes not alter the importance of a boundary in the regulatory scheme, Congress was aware ae: of t when it expressly required transfer of ownership of disposal sites to the governm and NRC licenses for them in perpetuity, wnich necessarily requires a bounca restricted area. Section 83 of AEA, as added by Ca!TRCA, 40 U.S.C. S 2113. In summary, NRC is not ooligated to adept anv standard promulgated by E tut only ' applicable general standards.' For the agency to refuse to consider wnether EPA standards are such within the meaning of U$1TRCA is an accication of its responsibilities under US1TRCA that disrupts the intended scheme of that act, rencers this rulemaking a meaningless exercise, anc creates needless centifets between t e'

1 1 Office of Censumers' Ccunsel v. FERC, 655 F.2d 1132.1148-1149 n.32 (D.C. Cir. '930 (Censume s' Ccunsel).i/ Agency action taken in excess of its statutcry 'urisdiction is a ' mere nullity' and of "ac effect." Larioneff at 364, 373 n.12 (1977); City of Santa C' ara. Califcenia v. And.us. 572 F.2d 660, 677 (9th Cir.1973), cert. denied. 439 U.S. 859 (19~3) (C!tv cf Santa Clara). Further=cre. Tilt is funcamental that an agency enarged with implementation of a statutcry framework crcinarily pcssesses no authcrity to deviate from er sedieste its statutory responsicilities." United States v. City of Detroit. 720 F.2d 443, 451 (6th Cir.1983) (City of Detroit) (emphasis added). The position taken by NRC that its actions in this rulemaking are " essentially nondiscretionary" and " legally mandated" is untenable under the well-established, funda-mental principles of statutcry construction stated aoove. NRC is the " lead" agency charged with implementation of U51TRCA.Il As such, NRC is under a mandatory, nondiscretionary duty to carry out faithfully Congressional-intent in that Act. To adhere to this primary and centrolling duty to uphold Ccngressio 4 intent. , NRC must necessari!y consider EPA's standards in relationsnip to UMTRCA's requirements cefore acepting them as a part of its regulations. For this agency to do otnerwise wculc se a violatien of its coligation to implement Congress' intent in UMTRCA and an aedication of its responsibilities under that Act. See Atchison. suers. and City of Detroit, sucre. I 1 6/ Aceced National Assee!ation of Regulated Utility Commission v. FCC, 533 F.2d IO1, 617 tD.C. Cir.1976) ("'wice latituce' tn the exeretse of celegatec powers is not equivalent of untramme!!ed freedom to regulate activities over which the statute fails to confer . . . authority"). Sy also Ernst & Ernst v. Hochfelder, 425 U.S.185, 213-14 (1976); Dixon v. United States. 381 U.S. 68, 74 (1965); Stark v. Wickard, 321 U.S. 288, 309-10 (1944); Mannattan General Eculoment Co. v. ! Commissioner of Internal ; Revenue 29" U.S.129,134 (1936); International Railwav Co. v. Davicson 257 U.S. 506, 514 (1922); Real v. Simen. 510 F.2d 557, 564 (5tn C!r.1975). f l i I 1/ H.R. Rep. No.1480, Part 1. 95:n Cong., 2d Sess.13,15-16 (1978). ! 1 i _. . _ _ . _ _ _ _ _ , . _ ___ _ _ _ _ _ _ _ _ _ _ l

same area (tne " radium in soil standard"). 48 Fed. Reg. 45,947 (1933) (to be codified at 40 C.F.R. 5 192.32(bX2)). In addition, the centrols enesen to implement these standarts must e "desirned" to be effective for 200-1,000 years (the ~1:ngevity standarc'). 43 ) , Fed. Reg. 45,947 (1933) (t: Oe codified at 40 C.F.R. 5192.32(bXIXi)) (emphasis acced). Ostensibly, EPA's poundwater standards are primarily concerned wita protection of F0uncwater from nenraciological constituents 10/ ep A s poundwater standards consist of a ' primary standarc" and a 'seconda.y standard.' In significant part, EP A's youndwater standarcs are the same standards previously adopted Oy that agency under the Solid Waste Dispesal Act for surface impcundments.11/ Indeed, EP A's Foundwater i standards for min ta!!ings merely incorporate by reference with minor exceptien, thk - detailed SWDA management requirements for surface impoundments.M/ EPA's ' primary standard" requires installation of a liner beneath all new tailings i ! piles and lateral extensions of existing piles to prevent non-radiological constituents from entering pcundwater or the soil under such oiles. 40 C.F.R. S 192.32(a)(1), incorporating by reference 40 C.F.R. 5 264.221 (1983) (with minor amendments); sm 48 Fec. Reg. 45,946-45,947. While EPA's "standarc" does not specify expressly a syntnetic liner, the Preamole to the standards states: "The primary standard, 40 C.F.R. 264.221, can usuany ce satisfied only be (sic} using liner materials (such as clastics) that can retain all wastes.' 48 Fed. Reg. 45,941 (emphasis added); see also EP A, Final i g/ EPA concluded that radiological constituents in min tailings do not pose a significant preolem to poundwater. 48 Fec. Reg. at 45,929. Nonetheless, EPA estao!Ished certain radiological roundwater standards. 48 Fed. Reg. at 45,947. ASIC's discussion applies equauy to EPA's radiological and nontaciological roundwater standards, although nonradiological constituents are emphasized :ecausu this is the primary focus of EP A's poundwater standards. g/ 45 Fed. Reg. 33,066 (Stay 19,1980). 12/ See ASIC Rely Brief in Active Site case. _ _ _ , - _ _ - . - - - _ . , - - - ~- - - ' " ~ ~ ' ' ' - - ' ' ' - ' ' ' ' - ~ ~ ~ '

                                                                                                                       ~"   '

   <                                                                                                     l
 *   ~                                                                                                   ,

D l

Envir:nmental Imract Statement for Standards for the Centrol of Sverecuet 'f ater:als frem Cramum Ore pr:cessine (40 C.F.R. 1921. EFA 520/1-33-008 (Septemcer 1953)

         - . (FEIS). Vol. II. at A.1-25 (Response to Comment 15). In thecry, NRC is authcri ed to g an exemptiens to the liner requirement, cut "only if miratien of hazardcus constitu-ents into the pcuncwater er surface water would ce preventec indefinite!v.' 43 Fed.

Reg. 45,941: see also 40 C.F.R. 5 192.32(a)(1), incorpcrating by reference 40 C.F.R. 5 254.221(b)(1983); 48 Fed. Reg. 45,946-45,947 (emphasis added). EF A's liner 'standarc" operates within de beundaries of the mill tailings sites. See FEIS, Vol. II, at A.1-28 ! (Respcase to Comment 24). Moreover, the liner requirement and the implicit requirement snat it be synthetic are engineering ce control technology requirements. EPA's " secondary standard" requires that groundwater at the edge of the tailines Oile be protected as if it were a source of drinking water for those constituents covered cy EPA's National Interim Primary Drinking Water Regulations. 40 C.F.R. 5192.32(a)(2), inecepcrating by reference 40 C.F.R. 5 264.92 (1983); 48 Fed. Reg. 45,34* (emphasis adcec). ,Numercus other constituents are controlled at the edge of the tailines cile. witn a ;rchibition against any increase in cackpeund concentrations. 40 C.F.R. 5192.32(a)(2), inecepcrating by reference 40 C.F.R. 55 264.93, 2S4.94 (1983). See 48 Fed. Reg. 45,947 (emphasis added). Under limited conditions and subject to a showing that ccrrective actic.t is impracticaole, EPA authorizes NRC (or Apeement States) to establisn en a site specific basis alternate concentration limits at the edce of the tailines cile. se !cng as backg ound cr drinking water eencentrations will be met no furder than either (1) 500 meters frem the edra of the tailings cite er (2) ee site oeundarv. wnienever is closer. 40 C.F.R. S 192.32(a)(2)(iv), incorporating Oy reference 40 C.F.R. S 264.95 (1983); 48 Fed. Reg. 45,94~ (emphasis added). Alternate concentration limits at the edge of a tailings Oile that would allow backpound er drinkirg water concentrations to be exceeded beyond (1) 500 meters fecm the oile er (2) the site coundarv. whichever is c!cser, may be adcpted by NRC (or an Apeement State) cniv with EPA's concurrence. 48 Fed. Reg. 45,34~ (emphasis added). EPA's roundwater standards also require tnat i a cetection menttering pregam be established at the ecte of *ne cile anc spec:fies a l detailed water sampling pregam fer !icensees. 40 C.F.R. 5132.32(a)(2)(iii), inecepcrat:ng y reference 40 C.F.R. S 254.98 (1983); 40 C.F.R. 5 264.98(gl(1), referencing 40 C.F 254.37(a)(1114a Fed. Reg. 45.947 (emphasis addec).M/ Thus. EP A's seccndary 'standarc" cperates within the bcuncaries of the mill sites and imposes design. engineering at:d management requirements. 2. Under UMTRCA EPA Has No Jurisdiction To Issue Standard Are Effective Within he Boundaries Of Min Site Locations Or h Impose Management, Design. Or Engineering Recuirements a (a) Use Of Similar Language In UMTRCA To That Used In The 1970 Reorganization Plan Presumptively Indicates hat Con-gress Cases Intended ne Same Jurisdiction Limits To Apply In Both Secticn 2"S(b)(1) of AEA, as added by UMTRCA, limits EPA's jurisdiction to the pecmulgation of " standards of Teneral ecolientien for the protection of puolic health, safety, and the envircnment from radiolor: cal and nonradic!cdeal hazards associatec wita" uranium miH tailings. 42 U.S.C. 's 2022(b)(1) (emphasis added). Section 2"5(b) also states that "imolem en tatien and enforcement" of suen stancarcs " responsibility" of NRC and Ageement States, respectively. 42 U.S.C. S 2022(d) (emphas added).M/ M/ As the AMC Reply Sefef in Active Site case details. EPA in its mill tailings standards adopts requirements by inecrporating its SWDA regulatory pregam numerous " management" for licensees. M/ Further, Section 34 of AEA also states that " management" of miH tailings will be carried protect cut "in suen a manner . . . as the Ccmmissten (NRCl deems apprcpriate to the puolic health and safety" "from ractoicetcal and nenradiolcefcal hazards associated with" mill tailings. 42 U.S.C. 5 2114 tan 11 tempnas:s accec); see also 42 U.S.C. S 2114(a)(3). a

   . - - .         - . . - . ~ . .                . . . - . . . . - .                         ..

t he language of UstTRCA in defining EPA's authcrity is the same er sucstantially similar to language used in Recrganization Plan Nc. 3 cf 1970. wnich was specifically ratified cy Cong ess. 5 U.S.C. App.. p. 1130-1133 (1950), 34 Stat. 2036 u970 Recrgant:a-tien Plan). Uncer ce 1970 Recrganization Plan. EPA's furtscietion was limited to pecmulgatica of 'geners!'.y applicaele environmental standarcs. wnien were defined expressly te: mean limits en radiation execsures er !evels. or eencentrattens or cuantattes of recreactive matertals. in ene general environment outstce the bouncartes of iccations uncer tne centret of cersons cessessing er ustne escicactive matertal.

5. U.S.C. App. p. 1133 (1982) (emphasis added). In his acccmpanying message, the President emphasized that the Atemic Energy Ccmmission (AEC) was to ' retain responsi-Oility for the implementation and enfoceement of radiatien standards tnreuth its !! censing authc rity." 1(emphasis added).

This division of jurisdiction between EPA and AEC (now NRC) established in the 1970 Recrganizatien Plan was thereafter affirmed en numerous occasions.l.5,/ g/ In Octecer,1973, a dispute arcse between AEC and EPA concerning division of

                        ;urisdiction est'aclished in the 1970 Recrganization Plan. Comcare Stemorandum to ne President from Dixy Lee Ray, Chairman, Atemic Energy Commission Dicticn for Summary Dispcsition), with atemerandum to the President frem Russell E. Train, Administrater, Environmental Protection Agency Ototien for Summary Disposition).

Dereafter, Rey L. Ash, Directer of the Office of Stanagement and Budget, for the President, resolved this jurisdictional dispute. In so doing, Asn stated: EPA has censt ued too breac!v Its rescensicilities. as set forts in Recrgant:atten Plan Nc. J of 1970, to set 'renerally acclicaele envtrenmental standards for the preteetten of tne ( general environment from radioactive material. ; i

e e e EPA should continue. under its current authoritv. to have i

                                         .wstotlity for setting standards f:r tne !ctal emeunt of rectation in the general environment from all factittles comoined in :ne uranium fuel eyele, i.e.. en smolent standard whicn woulc have to reflect AEC's finctngs as to the practicacility of emission controls.

         .           .         -                         .-                   .  ..                        - _                          -      --            -            _                                 .-             . _. =

1 Adoptien of terminolcgy in Section 275 and Section 34 of AEA, as add CMIRCA. that is the same as er suostantially similar to that j ased in the 1970 j i j Recrgamzat:en Plan incicates presumptively that Cong ess intended the s ! to apply in both cases, unless refuted oy clear evidence of an intent to tne centr i j (cent.) 1 i Memerandum from Roy L Asn. Director. Office of Management and Sudget, to Administrat:r Train and Chairman Ray re: responsioility for setting radiatien protec standards, cated Decemoer 7,1973 (emphasis added). (MOU) cetween EPA and AEC.This division of jurisdiction was also affirmed i 1 Fed. Reg. 32,965 (November 29,19T).See 38 Fed. Reg. 24,936 (Septemoer 11,1973) and 38 . . l i Senior Att rney, GAO-OGC, to RocertTL Allen, Jr., Assistant Directo i EPA30,1976. July Radiation Programs Standards Setting and Monitoring (GAO No. 3-166506), dated 4 i In 1975, describing its jurisdiction with respect

              - including uranium mills - EPA recognized that its jurisdiction extended                                                                                                            to onlyto NRC.                         '

,' setting "outside fr.c 40 C.F.R.190, EPA states (at page 19): the beundaries" standards. In its Final Enytronmental Impact Statem i ! Two ooints are relevant to EPA's autherity to set - - ~ envtrenmental esciat:en stancares. Fttst. . . . the standards - " ~

!                                            can acety oniv outside the E=.6 rtes of factittles crocuerne rec:cact:ve effluents. The requtrec environmental protection                                                                                                                 - '

can on!v can se provicec witnin this ecnstraint . . . Secend!v. EPA ! set standards: the authority to reeutate soecifie " ' i fae: lit:es Application was not transferrec ov Recerantzatten Plan No. 3. -~ anc enforcement of these stancarcs against i specific facilities is the responsibility of the NRC. i EPA, 40 Operat: ensC.F.R. of Aettvittes 190mEnvironmental the Urantum Fuel Radiatien Cvele: Protection Recuirements for Norma t t EPA 520/4-76-016 (Novemoer 1,1976). Final Envtronmental Statement, ' l i 16/ 1 I E Drvers v. United States. 286 U.S. 427, 433 (1932);See At! antic C:eeners Erlenbaugh l 1 denied. 452 U.S. 964 (1981);F.2d 196, 204 (10tn Cir.1973); United States . l i 1980); Samosell v. Straue.194 F.2d 228, 23019tng.Ctr.1951), (1952). 343 U.S. 927 cert. dHart eve v -~ ^ S,3e also 2A J. Sutherland, Statutorv Construction 5 51.02 (4tn ed.1973). -- - - Section 275(b)(1) uses the " parase ' standards of reneral teollestion for the protection of the puolic health, safety anc tne environment," wmle the 1970 Reorganization Plan, as ratified cy Ccngress, uses the phrase "suen renerallv acollea envirenmental standards for the protection of the general environment." That no t 5

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l 1 I - Indeed. EPA's General Counsel has acknowledged in a legal epinte to pecmulgate ' generally applicaole standards" under U3!TRCA was "mede!:ed e!cselv en comcaracle autnerit. centained in the Atomic Energy Act as transferred to E Reorganization Plan No. 3 of 1970.'.l.I./ F1r this reason, the general counsel cencluded: The concept of geners11v snould ce undentcec. tnerefcre,scoliesole standards in C'.1TRCA term 3, as usec in tnat Plan. UnderinReorgant:ation tne lient of tne same Plan .No. generally applicacie standards are " limits on radiation exposure cr levels, ce cencontrations or quantities of radioac-tive mater:als . . . .' Perry Memorandum No.1 at 3 (emphasis added). Although deleted from the quotation of the plan by this legal opinien, the 1970 Reorganization Plan centinues 'I environment outside the boundaries of locations under the control of pe or using rad!cactive materials.* 5 U.S.C. App. p. 1133 (1982) (emphasis added). Accordingly, by using the same term in Sections 275 and 84 of AEA as used the 1970 Recrganization Plan, Congress (1) limited EPA's furisdiction opment to the deve of standards for potential radioictical and nenradiolegiesi hazards effective o _ site :cundaries, and (2) preserved NRC's regulatory and licensing authc (cent.) meaningful difference was intended by Congress in these two phrases is in

the similar, which use thealthough not identical, phrases "suen tenerally language of Section 275(b)(2) and Section 94(a .

standarcs ' respectively, in cescr:otng EPNs autnerity.ecollenote standards' and 'ac ~ 17/ Tailings Radiation Centrol Act,' Memorandum of Octecer'Authcrity t 16, 1981, from Rooert M. and Radiation at 3 (Perry Memorandum No.1) (empha ' in Inactive Mill Tailings Rulemaxing,' Memorandum of Octccer 1F1981, from R M. Perry, General Ccunse!, to Kathleen M. Bennett, Assistant Administrator for Noise and Radiation (Perry Memorandum No. 2) at 2. ,

i l 1 - i

                            =anagement, casign. engineering and site specific re<;uirements nece!

offsite s:ancarcs.U/ 4 ^ (b) Intended To Limit EPA's Jurisdiction With ne Consi 19~0 Reorranization Plan The legislative history of UMTRCA at each critical stage of its development (namely, (1) as reper:ed :y the Hcuse Interice Ccmmittee, (2) asEcuse y the reper:ec c Commerce Committee and as initially passed by the House, and (3) i Senate as a suestitute amendment for the House passed mill and ther I i g/ Thisenvitcamental in other division ofstatutes. jurisdic:!:n etween EPA and NRC has been recogn 4 pc11utants.In the C!ean Water Act. EPA was given express authcrity to regulate 33 U.S.C. 5 1362(6) (1976). of that Ac:, the Supreme Court held that EPA had no authority t syecial 24 (1975).nue! ear, and byproduct material that was suoject to NRC jurtsdiction. i Inceed the Court noted that Train at intent to preserve in the Clean Water Actthe legtslative history ref;ectec Congress' 1970 Recrganizaticn Plan. % n.20. the division of authcrity set forth in the 1 42 U.S.C. S 7401, g sec. (1982).Similarly, the Clean Air Act also authorize . ' Report the f;cor manager for the bill introcuced a dccument c That document recognizes that EPA's authority to regulate racioactive a is limited to setting outside-the-fence-line emission standardsfsf " i Report (1977); Statement of Intent: . Clean Air Conference Senate Committee en Environment and Puolic Works, 95th Cong. Historv accec). of the Clean Air Act Amendments1977. of 300 (Comm. Print 1973) (empnasts term disposal of high level man-made racicactiveMost recently, in :n jurisdiction to outside the coundaries, Puo. L. No. wastes, Congress limited EPA's U.S.C. 5 10141 (1982). 9 -425, 96 Stat. 2201, 2228, 42 1 i In short, the civision of ;urisdiction first stated in the 19~0 Reorganizatio is well clear snowing estaollsned of intent to do Ccngessional so, wnten is not the policy case here.that should be deviated frem 5 m Train at 23-24 (19~6). e _ _ _ , , _ _ _ ._..- ~ - ~~" ~ " m, -. m- --r -

                                                                                  - - -    ei. , -w  >y.-- -

w +_e. y-, -e

by the House)19.'suppcrts the conclusien that Cong ess adopted a divisien of

etween NRC anc EP A equivalent to tnat of the 1970 Recrgani:ati:n Plan fer moth radielegical and n:ntadicIcgical eenstituents of mill tatlings.

(i)

                                                          ' Die House Interior Committee Bill The intent cf the House Interice Committee is unambigueus.                          IP A's jurisciction under UMTRCA was to be the same as that under the 1970 Recrganiza !cn Plan with respect to both radiolegical and nenradiological aspects of tailings. Describing EPA's intended authority, the Report of the Committee en Interior and Insular Affairs states:

AUTHORITY OF THE ENVIRONMENTAL PROTECTTON AGENCY It is the resconsibilltv of the Environmental Preduction (siel Agency to estaotisn generally apol.icaDie standards and ertteria for tne ;:retectron of tne general envtronment, eenstcering radiotorical and nonradioloarteal asceets of tatlines. The EPA stancarcs anc criter:a sneulo ce developed to limit the exco-sure (er cotential execsure) of the oub!!c and to crotect the general envtrenment frem ettner escioleetcal ce nenradiotect-est suestances to acceptacle levels througn suen means as allowaste concentrations in air or water, quantities of the su:: stances released over a period of time, or by specifying maximum allowaole doses or levels to individuals in the general not interdect pcpulatten. any The EPA standards and criteria sheuld detailec or site scec:ffe recuirements fee management. teennolcev er engineer:ce metnocs on licensees or en :ne Department et Energy Nor snculc EPA inect orate any recuirements fcr permits or licenses for activttles con-cern:ng urantum mill tailings wnien would duelleste NRC regulaterv autnerity over the tatitnes sites. 19/ of its censideration in coth the House and Senate.UMTRCA, as ultimately e providing a sacet summary of the course For NRC's convenience. AMC is comparison of Sections 34 and 275 of H.R.13650 atof its consideratien and a side-cy-side the relevant stages of their develcpment, together with related previsions appearing in S. 2584, a Senate mill dealin with the same issues, wnten passed tne Senate en Septemoer Rec. S15310-35 (daily ed. Septemcer 13, 1978). 18, 1978. See 124 Cong. in the AMC Reply Brief in Active Site case as Addendum A.The side-cy-side compartson appea

    . -_-                                .--    -                    .,               .-.       . ~ . . _ . .         - --

d Section 206 recui es tne Environmental Protecti:n Agency to set general stancares and cr:teria f:: the ;r:tection of the environment outside the boundaries of mill tai!!ngs disposal sites.

        --                                                                           The stancares anc criter:a wculd be tool!:nole to :oth radielee: cal anc nonradioterical ha: ares m tne : ties.

H.R. Rep. No.1450, Part 1, 95th Cong., 2d Sess.,16-17, 21 (1973) (emphasis added). Describing NRC's authority under UMTRCA, the House Repert states: ACTHORITY OF THE NUCLEAR REGULATORY COMMISSION e . . In establishing requirements for promutating regulations for t licersing or for oversight of the Department's (Department of Energy) remedial activities, the Commission must set all standards and recuarements relattnr to maaanement eoneeots, specifle technotory, engineertnr methods. anc procecures to i be employec to acnteve destrec levels of control for limiting publie exposure, and for protecting the general environment. ]

;                                                                           The Commission's standards and requirements should be of i                                                                           suen nature as to soecifv, for example, exclusion area restrie-tions en site bouncartes. surveillance recutrements. cetailec
    - -                                                                     enameertne recurrements. inciucing lining fer tatlings cones.

ceotn. anc tvoes of tatlines covers. Cooulations limitat: ens. cc inst: tut:enal arrangements suen as finane:al suretv recurr-- ments er site securttv m easures. The Commtssten sacute - ' tssue all necessary permits or licenses for uranium mill tailings sites. The NRC is also responsible for implementing general stan- ! dards and criteria promulgated by the Administrater of the Environmental Protection Agency. NRC must assure that the technology, engineering methods, cperational controls, surveinance requirements and institutienal arrangements em-played at the sites provide the necessary carriers and levels of control to limit public expcsure, and protect the environ-ment from radiolegical and toxic nonradiological substances associated with uranium mill tailings materials, as specified by the EP A standarcs and criteria. H.R. Rep. No.1480, Part i at 16 (emphasis added).2.0,,/ 20/ Most recently, a March 23, 1984, letter to Nunzio Palladine Chairman of NRC, j from Cong essman Udall, Chairman of tne Heuse Committee on Interior and Insular Affairs and a prime author of UMTRCA, reaffirms the historical division of jurisdict:en i i I

                                                                                                                 ..n            we

_ - , - ~ . . .- _ . . _ _-, , _ . _ , . _ _ _-, __

(ii) "the House Commerce Committee Stu 4 (cent.) Oetween NRC and EPA: Cong essienal intent in orevidies for the Envirenm en tal Proteet:en Arenev a stancarcs-setting role for u an:um mtil tallings assumec that suen role wculc te cettnec ov interagenev ag eements cevelcoec cursuant to Recerem::at:en Plan No. 3 of 1970. Under those agreements, the EP A standard wculd certain to contamination or activities outside the coundarv of the regulatec factlitv, anc would not ine!uce cetatlec engtneertnr recu:rements er site-soecific recutrements. No suosequent interagency agreements nave moctfiec tais definition of the EPA's standard-setting role, and substantial legt:.:stive history exists to indicate that Congress has continued to endorse this aoproach. The Uranium Mal Tailings Control Act and its legislative l history clearly and strongly give to the NRC the primary licensing role for tatlings sites, and prenibit dual regulat:en er cermittfrs ov any edcitional Federsi arenev. In AMC's litigation enallenging its standards, EPA argues (EPA Brief at 39, 40) , that differences in the sin (H.R.13358) as origmally introduced :y Congressman Udall

and the ot11 (H.R.13650) reported by the House Interter Committee indicate an intent to reject the apprcach of the 1970 Reorganization Plan.

i Althougn not simply stated, EPA seems to suggest that H.R.13650, as reported, directed the agency only to pr its standards inside site boundaries as it concedes H.R.13353 d The differences in language of Section 275 as provided in these two biHs is shown in AMC Reply Brief in Active Site case, Addendum A. An examination of the lar of these two blHs indicates that EPA notes a distinction without a difference. quage Both

tils speax of EPA's authority in terms of " generally acplicaole standards" 'for the protection of the general environment" "outside the Ocundaries ot mill processing and mill tailings disposal sites, much as provided in the 1970 Recrganization Plan. Indeed, the bin as reported is nothing more than a shorthand version of the original Udan mill.

Nothing intent wasincontemplated the House Interior from the CommitteeCdad biH. Report indicates that a significant change in As noted aDove, it speaks of EP A's authority in terms of the " generally applicaole standards" effects on "outside the boundary."

Moreover, the 1970 Recrganization ?!an does not state expressly that EPA standards may ecolv only outside the boundary. It too speaks only of " protecting the general environment" outside the boundartes.
sucra 14-15), But, as EP A itself has escognized (n.14, the !ntent of tne 1970 Reorganization P!an is that EPA standards may 4

                         , - .               -..,---.-----y3--,       , - - , - - - . , - . - , ,             - , . -            _ . - . , . , _ _ _ _ _ - -         ,.       ,

f - - - - - - - - -

Similarly, the intent of the bill repceted by the Meuse Interstate and Fcreign Commerce Committee was to ad:pt the jurisdictional division of the 1970 Reorganization P'an with respec to :otn radicIcgical and ncnradioleg: cal aspects of mal tailings. The

         . repce: of the Commerce Committee indicates this inten: in quoting from an August 9,                               ;

1973, letter from EPA Administra:ce Costle to Cong essman Dingell as Chairman of I tne Succommittee on Energy and Power. The repce: quotes the Castle !etter as follows: We agree that NRC weuld establish manacement recuirements for the uranium mtil tatlings: tnat suen requirements wouic ' De comparnoie, to tne maximum extent practicacle, to re-quirements applicaele to the possession, transfer and disposal of similar hazardous material under the Solid Waste Disposal Act, as amended oy the Resource Conservaticn and Recovery , Act of 1976; and that in establishing general management 4 requirements, the NRC would obtain the concurrence of EPA. l 1 Under both titles (of the billi. EP A would retain its generally acoticaole stancarcs - setting author:tv uncer tne Atomte - Ener1rv Act of 1954. as amencee . . . . The report then states *(tt he Committee is satisfied with this resolution of a very difficult pecclem." H.R. . Rep. No. ,95-1480, Part 2, at 46 (emphasis added).Il/ 4 i (cont.) ! an only outside site boundaries. In the AMC litigation en its standards EPA also argues (EPA Brief at 39-40) that the Meuse Inter:or Committee Report indicates an intent to " enlarge" its authority by its reference to EPA authority in terms of " quantities of the substances released over a period of time." This pnrase, which appears as one in a series without any reference to the inside-v ersus-ou tsid e-th e-coundarie s question, is not " clear" evidence of Congressional intent to allow EPA to apply its standards inside mill site boundaries. Given the clear use of "outside the boundaries" in descricutg EPA's authority elsewhere in the House Interior Committee Report, this statement cannot se used to imply EPA authority inside site boundaries as that agency suggests. i l Q/ The language of H.R.13650, as reported by the House Commerce Committee, speaks in terms of " generally applicable standards" but.coes not expressly define the term Nonetheless, as indicated my the report of the Commerce Committee, as quoted aoove, the affirmatively stated Intent was the same as the House Interior Committee Sul: under UMTRCA, EPA " retained" its pre-existing " generally applicaole standard 1 setting authority under the Atomic Energy Act" as stated in the 1970 Reorganization l 1 l . i

   . . -     . . . . .      - . .    - -        - - - - -                                               * ~~

l

      - . - ~ ~                        --= ' -                                    ,   _            .    ,
                                                                                                                            ~ . . . _ . _. e The c:mmi::ee was fully aware of the implicatiens of this adeptien of the cencept : hat EP A 're:ain" i:

3 ' genera!!y appI!caole s:ancard set:ing aume.::y uncer ce A:cmic EneT/ Act.' The cencept of "generai;y applicacle standa.es" was c:nsidered expressly in hearings held :efore Congressman Dinge!!'s su:ccmmi::ee in :es !=cny b EP A's own wi=ess. William D. Rowe. then Deputy Assistant Adminis:tator for Radiatten 2:cg ams, anc Jcseph M. Hend:te. then Chai: man of SRC. Deputy Assistan: Adminis::stor Rowe testified: However, any men Ierislative :cocesal shcu!d also Orevide fer EPA to cromulgate ;teneral envir nmental stancarcs for suen mater:a1 so tnat there will se conststency witn the present autheri:V of tne Atomic Enerrv Act anc Recreantza-tien P!an No. 3 of 1970 wnten gives EPA sucn autnority ove! present 1:censacte material Suen authority fer EPA standard setting and NRC regulatory autnerity sneute extenc =ctn to tne racteactive and nenradio-active asceets Of nazarccus mater:als . . . . Uranium % fill Tailines Centrol Act of 1978: Hearings en H.R.11698. H.R.12229. H.R. 12933. H.R.12535. H.R.13049. H.R.13382 and H.R.13650 Befere the Sutee en Ene gv and Power of the Meuse Committee en Interstate and Foreign Commerce. 95tn Cong., 2d Sess. 366 (August 2,1978) (hereafter the 1978 UMTRCA Hearings) (empnasis added). Chairman Hendrie testified that the language of H.R.13650 had been drawn 'argely from the 1970 Recrganization Plan. 1978 UMTRCA Hearings 396. The the committee understood the 1970 Recrganizatien Plan's division of jurisdic-tien between EPA and NRC and intended to adopt it in UMTRCA is indicated most clearly by the !cIlowing exchange between Heuse Subcommittee en Energy and Power Ccunsel Finnegan and EPA Depu:y Assistan: Administrater Rowe and NRC Chairman - Hend:ie: i (cont.) j Plan, wnich the committee understcod from the testimony of both EP A and NRC witnesses limited EPA's authority to standards : Mat apply "cutside site ocuncaries.' _we waaeve==*==e***** * * * * " ' ' * *

I

                                       .\tR. FINNEG AN.                   . . . Is it ycur intentien to set standards for actions ceycnc tne Ocuncaries of the active and inactive
                                       =111 at the deposttery sites?

SIR. ROWE. In general wnen we set a:otfescle e.eviren . ental standards, they are cutside tne Scuncar:es et tne sites. wnat we are eencernec witn ts tne ex osure to tne teneral Suclie wne tre Cutstce tne 5t*e :CunCartes. J 31R. FINNEGAN. In the same provision there are the words

generally applicamle standarcs, wnich is a term that you use ycurself en page 7 of your testimony. What is encom-

passec cy that?

4 31 R. R O W E. General [lvl acolleable standard is defined in the i Atomic Enertv Act. This is where the language comes from. 4 anc it is tne seetten that we use to set tne stancarcs outstce tne coundartes. It covers stancarcs wnsen can oe quanttttes, ecncentrations, and it is particularly defined here as concen-trations or cuan tities of material. into the teneral environment. That is now it has been definec. e . . i SIR. FINNEGAN. %!r. Chairman. I wanted to ask you whether you had any comments to make concerning Section 275 ' language at page 27 cf the e111 and how EPA would set stancards anc how they would apply to sites, either active or inactive. t

'                               31R. HENDRII. Yes, att. Finnegan. I would like to comment.

It seems to me the language I now read in H.R.13650 uncer - Section 206 of the mill is an appropriate definition. I believe the language has been drawn largely from the Reorganization Plan of 1970 wnien assigned to tne EPA the autnority for radiological health protecticn in the sense of the estactish-ment of amoient standards, generally applicacle standards for the protection of health and it now comes down to NRC, from AEC to regulate under these general standarcs and to lay soecifle requirements for licensing upon the facilities that we license meets to make the general sure that eacn of those facilities then standards. It seems to me that the Ianruare, as laid out here, defines that in a way whlen is ecmoatiote with the Receranizatfen -- Plan 3 and that makes clear tnetr (EP A'st autnort tv to - estactish these generally accliesole stancares anc at tne same - time also maxes clear tnat. as vou ecme inside the site - bounda v and begin to talk about features of tne particular fact 12ty ceing !!censec, that that cecomes then the crecer } crovince of the NRC to det! witn spectile License provistons, - 4 l l

. _ . . . . - . - - - - ---- ~ - - " ~ "" '

_ _ - - _ _ _ _ _ , _ _ _ - ~ _ _ . . _ . - . . _ _ _ ___ _ _ _ . _ _ _ . ,

                       ._.w.__.,                                        . . . . . . . . . - . .                 _.

means, metneds, and so en :: meet EP A's am0ient standards at tne site. SIR. FINNEGAN. Is is your desire inat the provisions of pararaphs 1 and 2 apply to sucn stancards only outside the ecundaries and therefore anything witnin the sites to meet tnose standarcs would te dene througn NRC - through its own rulemaking er licensing precess? 3fR. HENDRIE. That is the way I would both prefer that the arrangement be set up and would feel it would be an imoortant feature in making clear the furisdictions between the two agenetes. I think as we come within site boundaries and begin to deal with specific aspects of factuttes tnat you are ve.-v much into the NRC licensing domain and it is destraole that tne interface cetween the agenc:es ce outside that specific licens-ing. StR. FINNEGAN. Str. Rowe, do you have any ecmments? 51 R. R O W E. Yes. I ag ee with Mr. Hendrie. Our intention is to work outside the site councary. StR. FINNEGAN. You are also in ag eement that generally

                                              ;arapaphs 1 and 2 snculd :e prefacec Oy the idea it means cutside the beundaries.

E at 392-393, 396-397 (emphasis added). (iii) The Senate Bill Finally, the Senate also understood that tne phrase standards of general appIIca-tien" as used in H.R.13650 was intended to continue the division of jurisdiction of NRC and EPA censistent with the 19~0 Recrganization Plan with respect to both , radiological and nonradiological aspects of tailings. This uncerstanding is (Lst inc!cated in the Senate Envir:nment and Puolic Works Committee's markup of S. 2534. a mill

   , , _ . . . . . . . .         . . . . ~ - - - - -                     - ~ ~

{ tailings cill that is similar to the Senate version of H.R.13650, which was ultimately enacted into law. During that markup. wnen questioned on the ' extent of coordinat:en* i i Det,veen EPA anc NRC required under me oil! the committee staff ind!catec that me bill intended to limit EPA's authority over radiolog: cal anc nonradiciogiea! :onstituents

of mill tallings to "off-site' 'standart.s. as presently was the case under AEA. See i

1tearings en Precesed Committee Amendments to the NRC Auth:rizatien Bill Befere j the Senate Committee on Environment and Puolle Works. 95th Cong., 2d Sess.10-12, 13 (July 27,1973) (unpublished).E i Second such intent is supported forcefuny by the fonowing statement of Senator i Domenici, a co-sponsor of S. 2584, during Senate decate prior to the passage of that 1 bin. Senator Domenici stated: j Mr. President the present disfointed regulatory structure for mill tallings fails to provice (assurance that tallings will be properly disposed of in the future]. ... Under present law, j the Nuclear Regulatory Commission may exercise regulatory

control over mill tailings only wnile milling operations are being conducted. ...

Althougn another Federal agency, i the Environmental Protection Agency, has some authority i over the disoosal of min tailings, it lacks broad authority over the generation of the tailings . . . 4 > The amendment would reolace this disfointed terulatorv strue-ture witn a untfiec anc comprenensive regulatory program. Uncer tne amendment, NRC would have centinuous licensing and - related retrula terv autner:tv over the generatten. Tandolph that describes EPA's authority inaccording terms that,72/ In AMC's litigation to EPA, include , i m:asures that "quite clearly may apply within" mill site bouncartes. For the following t 1 rcasons. Senator Randc1ph's on-site jurisdiction under CMTRCA. statement may not ::e interpreted to imotv that EPA has I within site boundaries is not addressed by Senator Randolpn.The Furthermore, issue of whether EPA the inference ~; of on-site jurisdiction EPA attempts to draw conflicts with UMTRCA and its full legislative history. For example, his description of EPA's authority includes many " site i 1 specific" UMTRCA management, denied it. design and engmeering measures that even EPA acknowledges - ' ' Moreover, the inference that EPA attempts to draw conflicts with j ur.amoiguous statemenu, made by others during his committee's markup of S. 2584 (a i similar mill to that enactec) - wnere the Senator was present but did not ooject - that j EPA's the 1970 stancards were to Reorganization ce eff-site standards similar to EPA's existing authority under Plan. A',1C Setet in Active Site case at 19-20. i i j

pcssessien and discosal of m!!! tailings. A basic orinciole of the amendment is tne creation of a unified reeme for mt11 tallings so that the varteus distinct materials wnten make uo a suurle mill tatlings oile need not be suotect to -frearmentec {stel, cuotiestive anc potentially conflicting rectlatorv activities bv different government agene:es. :n accercance witn t::ts pr:nciple NRC wcuic ce given ene authe.-ity to set detai ed requi ements for the disposal of mill tailings, inctucing specific management requirements, and to license cispcsal sites. 124 Ccng. Rec. S13323 (daily ed. Septemcer 13,1973) (emphasis added). Oniv a e! ear boundarv :etween the turisdictien of the twe agencies with reseeet to Soth radiolecical and nentadiologiesi ascects. such as the site Scundarv. achieves this " basic Orinciole." as the present discute between NRC and EPA en this issue new amolv creves. Finally, the Senate's intent to divide jurisdiction between EPA and NRC consistent with the 1970 Recrganization Plan with respect to radiolcgical and ncnradiological constituents of mill tai!!ngs is indicated by August 9,1978, letters from Carlton Steiber, NRC Assistant General Counsel to Kevin Ccenell, then Stafority Staff Stemeer, and James K. Asselstine. then Stinority Counsel. Subcommittee en Nuclear Regulaticas, Senate Ccmmittee en Environment and Puelic Works. In these letters, Stoiber describes an ar eement :etween the EPA Administratcr, Douglas St. Ccstle, and NRC Chairmet, Josepn St. Hencrie, regarding their agencies' respective roles under which EPA would "be resconsible fer estaclishing generally ecoliesole standards and criteria fer the protection of the general environment, censidering radiolcefeal and non-esdfolceical asceets outside the coundaries of the tail!~cs sites" and NRC would then implement and enforce such' standards and criteria (emphasis added).11/ In summary, the legislative histcry centains ,no positive evidence that Ccngress ! intended EPA to exercise en-site or management jurisdicticn under UStTRCA, contrary 03/ Indeed, the Stoiber letters constitute a centemperaneous construction of the Act Dy an agency that is enarged with its implementation that courts have judged to ce entitled to great weight in determining Concpessional Intent. e

to established ;clicy in the 19~0 Recrganizatien Plan. As recepi ed by the Supreme Court in a related centext, if Ccngress had intenced 'a s ptficant alterat:en of ne pervastve replatcry sene=e emcodied in the AEA' in CaiTRCA cne would have expected "a. clear indication of *iegtslative intent' of suen a enange in policy. T si at 23-24 (1976), citing United States v. United Continental Tuna Core. 40$ C.S.164,155-169 (1975).11/ There is no sucn "cles- indication'* in either tne Ianpage er lerslative nistcry of C31TRCA. On the centrary, the lanpage and legislative hit.tcry of CMTRCA affirmatively suppcets wnat is otherwise the natural presumptien that flows from Congress' use of I the same terminolcgy in CMTRCA as previously used in the 19"O Recrganization Plan, wnien it specifically ratified. Congress intended EPA's furisdiction to promulgate both . i radiolegical and contaciclegiesi standards for mill tailings under UMTRCA to extend eniv to the develcpment of ' generally applicaole standards.' NRC and Agreement States, respectively, were te have exclusive en-site regulatcry and licensing jurisdiction to esta3tisn necessary management, desip and engineer 1ng requirements to assure ec=pliance witn EP A's generally applicaole standards. 3. As EPA Standards Apply Within Site Boundaries And Impose Site : Specific, Design, Eng:neering And Management Requirements Rey Are Not Weerally Apolicable Standards" As Intended in UMTRCA - Indisputacly, EPA's raden and radium in scil standards operate within mill stte boundaries. On its face, EPA's 20 picoeurie raden emission standard applies direet!v ever the surface of tailirss siles whien are located - without exception - within the 24/ In Puelle Interest, the ecurt held that source, byproduct and special nuclear iiiatertal were not regulatacle sy EP A under the Federal

dater Pollution Centrol Act (FWPCA), even thougn the F*dPCA defined pollutants sucject to regulation under that Act to include 'radicactive mater:als. The court reccgnized that EPA's regulatcry powers ever scurce, syprecuet anc special nuclear matettal was limited by tne 1970 Recrganization ?!an. 42 6 C.S. a t 24. n.2 0.

 . . , . . . . . . . ~ - . . . -      . - - - - -           .

beundaries of sites licensed by NRC er Apeement States. 40 C.F.R. $ 192.32(:)(U(iD; 48 Fec. Reg. 45,947. Similarly, EPA's radium in soil stancard applies exprsssly wi nin tus ~'.icenser site. 40 C.F.R. S 190.30(:M2); 48 Fed. Reg. 45,947. EPA's 20 picecurie raden emission standa c is also an impermissib!e design er engmetring requirement. Althcusa ac=inally a numerical limit, this standard is - as EP A ha acknowledgec.25,/ - a "surregate" to require a thick earthen cover ever tailings piles, based en a pclicy jueg=ent that suen a " passive' .4ethod - as opposed to " active' ce " institutional" metaccs - is necessary for long-term centrol. 48 Fed. Reg. 45,930, 43,931, 45,936, 45,940. EPA states: A design Umit for (radon} emissions addresses a primary gcal of these standards, the placement of a thick, duracle earthen cover over taiUngs, because the (rado,nl limit relates directly to the thickness of the cover . . . .:.6/ 48 Fed. Reg. 45,940. Thus, EPA seeks to do indirectly what Congress has prohibited it from doing directly. As noted earlier, the House Repcrt in discu.1 sing EPA's authcrity, states that EPA is not to " inter:ect any detailed or site speci!!c requirements for management technology ce engineering methods en licensees" ce to " duplicate NRC regulatory authcrity over tailing sites.' H.R. Rep. No.1480, Part 1, 95tn Cong., Oc Sess.16-17 (1973). Decisiens en " management coneects." "specif!c technology" and " engineering methods" - such as the appropriate "gota end tvoes of taiUrgs covers"; wnether cent:01s should te active (i.e., "institutienal") er passive (e.g., thiex earthen cover), or 5

       .5/      Washington EPA Active Site Transcript at 34-85.

26/ EPA's intent is cenfirmed by the agency's final inactive EIS. EPA states that "a Fadon emission standard impUes the need fcr sufficient earthen cover" and is a " major goal of the disposal standards.' In fact, EPA acknowledged a raden emission standard was chcsen because of its " direct re!ation to the cover recuirements for taiUngs." 1 Inactive FEIS at 129; 2 Inactive FEIS at D-33 tempnasts accec).

a ecmcinatien of both; and whether buffer. !and use er population controls shcu'd ce per .itted - were specifiesny left by Conress to NRC. Id., a t '5 (1975) (emphasis added). Aceced 104 Cong. Rec. 515323 (daily ed. Septemcer 13. 1973) (Section-cy-Section Analysis for Amendment No. 3577 to S. 2534) (emphasis accec1. Accceding!y. EPA's raden standard not only intrudes on NRC's furisdiction inside site boundaries, cut also unlawfuny attempts to preclude NRC fecm exercising its statutcry ecle of develeping management, design and engineering techniques.0.I/ EP.*'s 200 to 1,000 year lengevity stancard is similarly an eng.neering or design requirement beycnd the secpe of its jurisdiction. See 48 Fed. Reg. 45.947 (40 C.F.R. 5 192.32(b)(U(D). ( On its face, EPA's longevity standard is not a !!mit on exposure or concentratiens. Its only purpose, as indicated by the language of this rule, is to allcw EPA to control taiungs desirn and engineering requirements, which Congess specifican reserved to NRC. 42 U.S.C. 5 2231(xX2). As such, the appropriate longevity period is within the control of NRC, not EPA. EPA's primary g oundwater standard, i.e., its Uner requirement, cperates within the beundary of mill sites. I.ikewise, the designated compUance point for tne " secondary i standard" is the edce of the 'ailings cile, a point within the boundaries of miU sites. Moreover, in these cases where the EPA standards permit NRC to estabusn alternate concentratien limits at the edge of the pile, EP A's " secondary standard" cperates within 4 the boundaries, because EPA's normally applicaole backpeund or drinking water limits may not be exceeded beyond 500 meters frem the cite er the site teundarv, whichever is e!cser. Finany, EPA's requirement that it concur in alternate concentration !!mits, whenever EPA's normany app!!cacle backpound er drinking water limits mignt te exceeded beyond 500 meters frem the elle er tne site beundarv. whfehever is eleser. 27/ That EPA cannot issue " design" standarcs is reccgnized by EPA's general counsel. Erry "wcrx Memorandum practice or designNo.1 at 3 (OGC has previously Interpreted this language as p standards").

                                                                 ~ --

  - _ . ~ . ..             . . ..... ...                            ..                   .

not only unlawfully operates within the Ocuncaries of the sites. Out also interjects EPA into NRC's (cr an Apeement State's) regulatory and !! censing jurisdiet:en. Additicnally, EP A's primary liner requirement is a "detai:ed enrineer+r" require-ment (wnien specifically includes " lining for tailings ;oncs"), the application of wnien Conpess specifically centemplated to ce within NRC's scund discretion. H.R. Rep. 1480, 95th Cong., 2d Sess. Part I at 16, Part 2 at 46 (1973) (emphasis added). Similarly, EPA's attempt to mandate the use of synthetic liners estaotishes ' specific technelegy" for the sites. As the House Repcet indicates, the appropriate techncIcgy to ce employed is a matter for NRC alone to decide. & Part 1 at 16. Furtheracre, EPA's secondary groundwater standards by their incorporation of detailed management requirements are matters left to NRC's primary authority under Section 84(a)(3). In summary, EPA's standards are in violation of its statutcry jurisdiction and int..:sive upon NRC's jurisdiction. Fcr NRC to conform to them would be a violatica of its coligation to upnold Ccngessional intent and an abdication of its responsibili-tias.AF g/ Section 275(bX2)'s requirement that EP A's nentadiolegical standards provide

                      ";.. tection" of human health and the environment *censistent" witn "applicaole" standards Usuec cy .it under the Solid Waste Disposal Act (SWDA) cannot ce interpreted to give EPA merc jurisdiction with respect to nonradioicgical aspects of mill tailings than radiological aspects.

First, Section 275(bX1) states without any distinction that EPA "shall . . . promulgate standards of reneral acolicatien for the cretection of euclic health, safety, 3:d the environment from raciolog:eal anc nonrectolce: cal nazarcs associatec" with mill tailings (emphasis adcec). Sectten 275(on2), oy stat:ng at tne outset "(sluen generally ; applicaole standards promulgated for . . . nonradiolcgical" hazards, adopts the cefinition of EPA's authority in Sectica 275(b)(1) and qualifies the consistency requirement of that sucsection. , I Second, to interpret Section 275(bX2)*s censistency" requirement to pant EP A authority to develop responsibilities cannotstandards that apply within site boundaries er impose management intent. That evidence, ce squared with the overwhelming evidence of Concesstenal as cetailed accve, affirmatively supports a Conpe?sional intent to preserve the jurisdiction of the agencies first estaolished in the 1970 Recrganization Plan, for both radiological and nonradiological aspects of mal tailings. Moreover, to l

                                           , , ~ . .                   . - . - . . . .     - ..               _    .

1 l IL NRC'S REGULATIONS MUST BE BASED ON A FINDING OP. SIGNIFICANT RISK OF HARM TO PUBLIC HEALTH OR THE ENVIRONMENT In Industria! Union Decar ment. AFL-CIO v. A nerieen pet. !eu.- h stitute. 443 i _ U.S. 607 (1980) (Ben:ene). the Supreme Court invalidated a standard issued :y the Secretary of Laoce (Secretary) under Section 6(b)(5) of the Occupational Safety and Health Act (OSHA), regulating exposure to cenzene, a substance whien causes cancer at high expcsure levels. Section 6(b)(3) provided 'in promulgating standards dealing witt toxic materials or harmful physical agents" the Secretary shall set the standard I which mest adequately assures, to the extent feasible, . . . that no employee will suffer material impairment of health. . . .' 29 U.S.C. S 655(b)(5) (1982) (emphasis added). I After determining a causal connection between benzene and leukemia, the Secretary, applying his general carcinegen policy, reduced the permissible exposure limit for benzene to the Icwest feasible level, i.e., from 10 to 1 part per million (ppm). The Secretary's rationale for this new standard was g based on a finding that leukemia had ever been (cont.) interpret tne censistency requirement to permit would render Section 34(a)(3), under wnien NRC may issue " general requirementf' for mill tailings sites that conform to the extent practicaole with applicable EPA SWDA requirements meaningless, an unfavored interpretation. Third, SWDA itself states: Nothing in this (Act] shall be construed to apply to . . . any activities on suostances wnien [are] suoject to the . . . Atomic Energy Act of 1954 . . . except to the extent that suen application (cr regulation) is not inconsistent with the requirements of suen Act. j 42 U.S.C. S 6905 (1982). Under UMTRCA, the definition of byproduct material under AEA was amended to include mill tailings. Accordingly, to the extent that EPA SWDA regulations confilet with Congressional intent in AEA, as amended by UMTRCA, they must give way. Accordingly, EPA cannot adopt and force NRC to implement SWDA standards that apply within mill site bouncaries or that impose site specific, design. , engineering or management requirements.

   % =   .4               e.* * .              ..                  .4   .

t e e' e

4 ATTACHMENT 2 0

                                                  - - = , , ----e.    *

         ,.                                                                                                /LE IN THE UNITED STATES COURT OF APPEALS FOR THE. TENTH CIRCUIT
               '                      Nos. 83-2226, 83-2227, 83-2277, 83-2504, 84-1349, 84-1352, 84-1482 AMERICAN MINING CONGRESS, et al.,

Petitioners v. WILLIAM D. RUCKELSd.AUS, et al., ,

                                                                    ' ,. Respondents On Petition to Review Final Action Of The Ad=inistrator Of The Environmental Protection Agency BRIEF FOR RESPONDENTS F. HENRY HABICHT II
                                                   ,          Assistant Attorney General Land and Natural Resources Division MARGARET N. STRAND                         .

BARRY S. NEUMAN, Attorneys Environnental Defense Section United States Department' of Justice Land and Natural Resources Division P.O. Box 23986 Washington, D.C. 20026-3986 C'! COUNSEL: (202) 633-2664 A. JAMES 5ARNES General Counsel UILLI A?! F. PEDERSEN Associate General Counsel

CHARLES S. CARTER Assistant General Counsel Enviren= ental Protection Agency Washington, D.C. 20460 l

s..

                                                                   "?                                     For the foregoing reasons, EPA has adequately denun 1.siessed the risks associa:ed with uranium =ill tailings, l    in.1 properly concluded tha: the potential long-ter= risks i

1 i 1: 3 sufficient to warrant regulation under U!ERCA. See also

                          ! 'EIS A.5-o (response to co=nen: 7) [J .A.                   ].

II. EPA RAS ACTED WITHIN ITS STATUTORY AUTHORITY IN ESTABLISHING STANDARDS OF GENERAL , APPLICABILITY THAT APPLY ON-SITE ,: gg.

                  ,                                                                                                                l 1

[ A"C contends that EPA =ay establish standards that ! .. . 1 i apply only outside the boundaries of =ill tailings sites . - l i. l Fe:.i:ioner contends tha: this restriction has been violated - 1 - j in :hree respects: EPA's radon emission limit (or " flux"

               .          s: adard), which regulates the rate of radon releases fro:

ill tailings piles; the radiu=-in-soil cl'eanup standard; l and the "pri=ary" and '" secondary" groundwater standards , 'all

- ! c:. which opera:e inside the current boundaries of =ill

l ailings , ~ t . .

                                                                                                           ~~7 I

disposal sites. (AMC Br. at 13-24). -34/ . As we demonstrate below, this challenge lacks

            .f                      ,

j : erit. The statute does not prohibit EPA fro = setting standards

hat apply wi:hin the boundaries of disposal sites, so long .

oQ . as they are generally applicable rather than site-specific. I-i

                         ~~-                                                          -

li/ It should be noted tha: the radium-in-soil cleanuo standard, l if achieved, will by definition apply to land tha': is released for unrestricted use and which :herefore will no longer be within the site. l I l

        . i ..                                                        - . . . . _ . .        . . _ . . _ . _ . . .

5 o . l l l l A. The AMC's Argument is Belied By The Plain Language of the Act As AMC notes, the starting point for determining the =eaning of a statute is "the language of the statute i 1:self." United States Lines. Inc. v. Baldridae, 677 F.2d 940, 944 (D.C. Cir. 1982). (AMC Br. a: 13). It is therefore s triking, although unders tandable , that AMC is unable to i point to any language in the stature that supports its con- -

n. 4 struc: ion. The Act simply does not 65ntain the "eff-site" i li=itation urged by AMC. To be sure, ch'e Act requires EPA 'to prc=ulgate " standards of generaT appl.ication" to protect "the l

publichealth, safety,andtheenEkronmentfromradiological and non-radiological hazards associated with" mill tailings. ' 42 U.S.C. 5 2022(b)(1) . But nothing in this mandate even i re=otely suggests tha: such standards may not apply within ' the boundaries of disposal si:es. On the contrary,- when. I 1 . .. this language is read in conjunction with the Act's stace-

                     =ent of findings and purposes, 35/ the plain meaning is at i

EPA =av promulgate regulations that apply within the boundaries of such si:es, if the agency deter =ines that they are an 1

35/ " Congress finds . . . that everv

cade to provide for the stabill: reasonable ation, disposal, effort and be '

control in a safe and environmentally sound manner of such tailines in order to prevent or mini =ize radon diffusion into :

ne environment . . . ." 42 U.S.C. S 7901(a) (enphasis added);

                     "The purposes of the Act are to provide - (2) a program to                                             ,

regulate mill tailings . . . in order to stabilize and control ; such tailings . . . ." Id. S 7901(c).

l.

I

                                                  }                                                                                                .       .

a9 propria:e =eans to protec: public health and the environment. AMC relies heavily on the requirement that EPA's i 'andards =ust be "of general application." But clearly, 1 is requirement, which prohibits EPA from promulgating

                                                     .;:e-soecific s:andards, is not the same thing as prohibiting

gulations tha: apply within the boundaries of disposal

                                                      .:es.       Petitioner's construe: ion of the Ac:' blurs this
                                               ,!      .aar     distinction. EPA's degulations are not site-specific, a                                                 ..            .                                      i i         : are generic standards that apply ~co all disposal sites.

l . A therefore has not violated this statutory =andate . [

5. The Legislative Historv Succor:s EPA's Construction 1

                                            .                        Because the Ac:'s plain =eaning provides EPA with 4

authority to se: standards that o'perate on-site to acco=plish

                                          .          :he s:atad purpose of protecting the.public health and environ .
                                 ,,      .f          nent,      this Cour: shoulb rej ect AMC's argument out gf hand,
                                         .'          and need not resort to the legislative history.                Un i t e d ' S t'a t e s ' -   -

5 j v. Orezon, 366 U.S. 643, 648 (1960); Markhamv.Colonia$.'; , j !!:r: care service Co . As sociates , Inc., 605 F.2d 566, '569' (D.C. Cir.1979) . But here, the legislative history shows that Congress delibera:ely chose not to limit EPA's authoridy in the canner suggested by AMC. In 1970, President Nixon signed Reorganization Plan No. 3, transferring to EPA some of the functions of the . Atomic Energy Coc=ission, ("AEC") (subsequently reorganized in 1974 as the Nuclear Regulatory Co= mission ("NRC")) . As a' f , 1 1 1 1 I

                                    .t                                                                   .                                                   l
                                                                                                       -        a
                                   . 4 m.                                                                                                                    l

3

           -                                                                                                                     7 I

t resul:, the former s:andard-setting and licensing functions ! t

of :he AEC are now allocated between E?A and the NRC. The 1970 plan transferred :o EPA the au:hority to se: " generally applicable environmental standards," which was defined to include "li=its on radiation exposures or levels, or concen- , a tra: ions or quanti:ies of radioactive materials , in the ! general environmen: outside the boundaries of locations under the control of persons procepsing or using' radioactive

                                                                               ,.                                             i The Obder left unaltered the.
              =acerials." (e:phasis added).

AIC's authority with respect to the licensing of com=erciai . 1 opera: ions. - I g Petitioner AMC argues tea:, in enacting U!TRCA, i Congress intended to codify all aspects.of the division of I 4 i responsibility between E?A and the AEC (now the NRC) set ;

forth in Reorganizaticn Plan No,. 3, including the limitation - on EPA's authority to set standards that applyonlh'"outside ~ the boundaries" of licensed sites . (AMC Br. a: 14-15). 36/ Su: this is not what happened. ' [. e In the House, several bills worked their way through

wo different commi::ees. Congressman Udall introduced E.R.

                                                                                                              -             i it i

AMC disingenuously argues that U!CRCA as enacted contains '

             --36/

language "that is the same as or substantially similar to" I tha: used in the 1970 Reorganiza, tion Plan. AMC Br. at 14. ' The fact is that the Reorganization Plan's reference to "outside the boundaries" is conspicuously absent from UlfTRCA. j As discussed in :he following pages, this was a deliberate ;

   .         choice on the par: of Congress.

I

i

                                                                                                                                                            ;    11352, which was referred to his Subcomnittee on Energy and
                                                              ...viron=en: of the Cc=mi::ee on Interior and Insular Affairs.
                                                    -!          4.:$ ion 206ofthat subec==ittee's draf:, da:ed July 27, 1978, I

i ded See:icn 275 to the Atomic Energy Act. It would have 1 I i . quired EPA to " pro =ulgate generally applicable standards l -: :he pro:ection cf the general environmen:" from radiological j .c! nonradiological hazards of mill tailings. It also

                                           .)  .
                                               .s.
                                                                .acified that "such standards      . . . impose lici:s on exposures                ,

l levels, or concentra: ions or quantities of ha:ardous . m.:erials in the general environment outside the boundaries o _c J.' c.rocessing or diso.csal sites (see Addendum A to this d j 3:tef, S 275(a)(2)) (e=phasis added) -- the identical language 1-a found in Reorganization Plan No. 3. I Bu:, as reported out by the full co==ittee on Augus: [ . j li, 1978, the Udall Bill (now numberdd H.R.13650), no longer 7 centained the underscored language restricting EPA-co "off-Q I size" standards. Rather :han requiring EPA to promulga e. n .. ~ s:andards that acolv "outside" mill site boundaries , the - 4 1 l p revised co=mittee draf: would have required EPA's standards e

crc:ee: :he environ =en: "outside" such sites. 37/ --

f l ( That this change in language was deliberate and ! i l c substan:ive is indicated by three factors. First, the l ., I 11/ As reported, :he bill required EPA :o " pro =ulgate generally applicable standards and criteria for pro:ection Of :he general environmen: outside the boundaries" of

                                         .                     ? ocessing and disposal sizes. H.R. Rep. No. 95-1480, Part i                      ', suora, a: 10.                                                                            ;

h i e , f w

                                                                                                           -r  i l

l Co==ittee Repor: acco=panying the bill conspiciously omits any reference to a site boundary li=itation on EPA's authority. '

Nor is any such li=ication =entioned in the su==ary of the bill, which =erely states EPA's authority to protect the i i environ =ent outside site boundaries. H.R. Rep. No. 95-1480 Part I, surra, a: 29. Second, in lieu of a limit on "off-site" standards,

                                                                 =-                      ,                  1

he report precluded " site-specific" require =ents for

                                                                       >>                                   I
                           "=anagement, technology or engineeridg" -- functions which l

1 would be lef: to the NRC as the imple=enting. agency. Ic. at [

17. '" #

Third, the House Repor: enlarged the types +of require =en:s EPA would be authorized to establish; =ost relevant here, the Repor: specifically indicated that EPA could regulate radon hazards by li=iting the "cuantities of , the substances released (by a =ill tailings pile) over a.

                                                                               ,'                  _ a a ceriod of ti=e."       Id. at 17. This is, of course, the radon              il e=ission (flux) standard approach which EPA has decided d'o '                     i 5

e= ploy; by definition it applies within the site boundaries, j and :he House Report =akes clear that EPA was to have the au:hority :o issue such require =ents. 38/

                         --38/   AMC erroneously claims that'the House Report stated                         -

that EPA's standards were to be apolicable "outside the boundaries . . . AMC Br. at 17. In fact, the Report states

hat EPA standards should protect health and the environ =ent ou: side the boundaries. H.R. Rep. No. 148U, suora, Part I a: 16-17, 21, reorinted in 1978 U.S. Code Cong. & Ad. News 7438.

i j 41-

Concurrently with the proceedings in Congress =an i

l Udall's co==ittee , Congress =en Dingell's Subec=ri::ee on . l

                .            -                                                                                                              t Mergy and Power of the Interstate and Foreign Co=merce l
                           ==it:ee was also considering H.R.13650, where the pertinent                                                      i i

[ gislative history was e'ssentially duplicated. The subco=- { l ::ee prin: dazed Augus: 4, 1978, required EPA to se: stan- 1 4 i ::ds "of general application"_ that "shall apply outside the

           .g              undaries                   . . . ." See Addendu: .B to this Brief, S 275(a)(5)                   .
    . :$                                                                      s.                                                    '(

l wever, this site boundary limitatid'n was eliminated fro:

           ,s               a full ec==ittee draft.                  In its place, as in the Interio$

n - . L s.: :::::ee Report, is si= ply a st' ate =ent that "s:resses that i' - {s :he EPA standards are not to be si'te- scecific ." H.R$ Rep.

                                                                                                                                              \
          !           Sc. 95-1480, suora, Part II at 46. (e=phasis added).
          ?

l Thus, in both co==ittees, the concept of a geography-2 - l l based li=ita ion on EPA's standard-setting authority evolved

 . j:             into a func:ional distinction based on EPA's and NRC's respec-g                                                                                                           .

j tive standard-setting and licensing roles: EPA would ' establish 3 . g s:andards of general applicability, and NRC would i=ple=eht- - t j and enforce those standards on a site-specific basis . i Following the House's passage of H.R. 13650, that ,

      ,               bill was put before the Senate, 124 CONG. REC. 36687 (1978),

s , which had already considered its own bill. Senator Garn, Chair =an of the Nuclear Regulatory Subco==ittee of the Senate Cc =it:ee on Energy and Natural Resources , proposed an a=end-t ten: (S. 2099) in the nature of a substitute to the House-passed l bill, 124 CONG. REC. 36688, which had been " coordinated in advance"

?

U . . . . . . . . . . . - - . . . . . . _ . . . ._ _ . _ , _ . . . . . ai

J. . --

                             .          ..s   .-.e. ...s   ,...s.m     .          ..         .

42 with tne House co :i::ees, id. 36695. As relevant here, 1-

I also =ade no mention of any site-boundary linitations on EPA's authority. '

The Sena:e Environmen: and Public Works Cc==ittee, chaired by Sena:or Randolph, cosponsored the Garn amendment and endorsed :he bill, 124 CONG. REC. 36696 (1978). Senator Randolph stated that the section-by-section analysis of a < si=ilar Senate bill, S. 2584, provided the basis' for his understanding and support of H.R. 13h50.

124 COSG. REC. 36697 (1978). That analysis "attemp:ed to further define" ' the relative roles of the NRC a6d EPA," and stated that "the' i i {E?A) is . . . to prescribe general standards of performance,

               '                                                                                            [

I not specific management requirements and not site-specific." i s Id. Senator Randolph, elaborating on that analysis, stated i his understanding that. EPA's regulations could include general

j standards for site design and preparation; general pile stabilization standards; and limitations on emissions ftom till tailines "in the air or ground or surface waters , . - -

                                                                                          . ;t ; ."

Id. All of the =easures described by Senator Randolph quite clearly =ay apply within the site boundary. 30/ 1

                                        .                                                                 1 I

3C/ Other portions of the legislative history relied on by AMC do not demonstrate a clear congressional intent l prohibi: E?A from regulating "cn-s ite ." For example, the to ; quo:ed remarks of Sena:or Do=enici (AMC Br. at 20) simply emphasize the need to ensure a coherent, " unified" regulatory i regise and to avoid "potentially conflicting regulatory , (Footno:e con:inued on next page) -: 4 I ab

The Garn acend=ent was adopted and passed by the fEena: eon:hesameday. 124 CONG. REC. 36699 (1978). The 2 i llowing day, Rep. Dingell pu: the Senate version of H.R. 1650 before the House, id. 38226 (197S), which approved the i j -

               ;          co:no:e 39 con:inued fro: previous page)
               '         --*~'-*es"     by EPA and NRC.              The Senator made no =ention of a
      -I   ~

ti:e bouncary" li=itation on EPA's authority; on the contrary, j =ade clear that a " unified" regulatory sche =e would be .I

             ;            hieved if EPA se: " generally applicable environ = ental                            .

L

             .           .andards" and NRC set the site-specific, detailed requirements.                                        l I

l 4 CONG. RIC. 29776-7 (1978). J . I AMC also cites a discussion a=ong several Senators-( c d co==ittee staff during a Senate Co==ictee =arkup of S.

                      '234 (AMC Br. at 19-20 and n.32>. This collocuy ar i          d cates that so=e Senators =ay have understood pre g=

ably in-existing 7 '..w :o li=it EPA's authority to off-site standards, but it does

          !           no: indicate that those Senators or the Senate as a whole
   . ,-               Zi? ended UMTRCA to continue that arrangement.

t .

         )                          AMC relies en letters fro = NRC staff to Senate,                                   -
                                                                                                      ~

i scaff (AMC 3r. at 20) which supposedly document an agree =ent j between EPA and NRC to limit EPA's standards "off-tite.", But 1 :ha: is not wha: the correspondence says; rather, it states '. J :ha: EPA would establish generally applicable standardr.co

        /             7:o:ec: the environ =ent, "c nsidering radiological and'=c'n-
        )             Iadiological aspects cursice ne boundaries of railings.' ' -

les.". (e: pnasis acced). In any event, the issue is not J

t una: arrange =en: EPA and URC =ight have worked out before the I passace of U;CRCA. The issue is wha arrange =ent U!CRCA

                              ~
    <                 itself cr vides. And as to : hat issue, the sca:ute's plain language, coup'_ed with the relevant con:e=poraneous s:a:e=ents cf Congress' in:ent, de=enstrate that Congress did not legislate a "si:e-boundary" li=itacion on EPA's standard se: ting-authority.

Finally, AMC cites a letter written by Congress =an

Udall to the NRC in 1984 (AMC Br. at 21 n. 33-). This letter i does no: clearly state the propositions urged'by AUC, that , E?A's general standards can have no effect within the tailings

si:e boundary. In any event, the letter of one Congress =an (

  .                   wri :en in 1984 provides "a hazardous basis for inferring the                                               )

in:en:" of a prior Congress. United States v. Price, 361 U.S. 304, 313 (1960). i ! 1 b bw, - .-. . . . _ . . . . . . _ , , , , _ , _ , , _ _ , ,

      . . - - - . ... _ .. -- .--- -                           .a.---.             .   .-            . . . .

8

    .  .~

t t 4 Sena:e bill (with amend =ents not relevan: here). Id. 38230. ', See also id. 37542, 37545. The final bill was signed into i j law on Nove=ber 8, 1978. ' Thus, the legislative history clearly suppor:s ! EPA's construe: ion of the Act, if any aids to interpretation , are necessary. Both Houses of Congress accepted a final i bill that eli=inated :he very proscription agains: "on-site" regulation which AMC clai=s to find in the law.<40/ Both houses of Congress specifically menEton on-site control

                     =easures, including a radon e=ission (flux) standard, as                         '

among the tools at EPA's disposal. As ulti=ately enac:ed,

he law delinea:es a sensible division of responsibility between EPA and NRC that is based on their respective functions (general standard setting vs. site-specific licensing and implementation), while recogni:(ng that EPA's regulations '

                                                                                          ~       '
                    =ay apply on-site if necessary to achie've the Act's goal,s of 1                         ;      -

protecting agains: the potentially serious.and long-terp.. - nature of the hazards involved.

                                                                                              ' z -.
                                                                                                .. c III.             THE REGULATIONS DO NOT CONSTITUTE IMPERMISSIBLE MANAGEMENT, DESIGN AND ENGINEERING RE0_UIREMENTS As discussed in the preceding Section, Congress clearly intended EPA to issue " standards of general application,"

10/ Indeed, as finally enacted, :he legisla: ion does not even lici: EPA's authority'to protection of the general environ =en: "outside the boundaries," as the Udall Co=mittee bill had provided; it broadly directs EPA to protect against i the hazards associated with =ill tailings. l _ . . . . . . - - - . - - - ----- . . -

e i; i ,

       %                                                                                                                                                                         c 4

l j leaving to NRC the . cask of determining the specific design ' s - 1 s .nd engineering requirements necessary to attain those I" !

               < andards a: each site.                                                                                AMC asserts : hat regulations r

sr:aining to radon e=issions and groundwater protectier. !

i

      }'        . as:itute 1 per=issible design and engineering require =ents.

t i:0 is wrong. - i s The Radon Flux Standard - t

     -                                                                                                                                                                  I The regulation requires that tailings piles be                                                                                                ,

{ :.spesed of so as to provide reasonable assurance that the-s j teerage radon e=issions from the pile will no: exceed 20

  -4
 .}            ;Leocuries per square meter per second ("20 pCi/c 2s").                                                                                     As j          -

A'.C nus acknowledge, the standard is "a nu=erical licit" ( 2K: 3r. a: 21), and the NRC is clearly 'left to determine , i j - the specific design and engineering c,easures that will be - i required to achieve this standard at each site. . 1 I AMC therefore attempts to sidestep the language' of . r . :, l i the regulation by arguing that it is "a ' surrogate' to,dequire , I .; :

thich earthen covers over tailings piles. . . ." AMC Br'. at !

 .                                                                                                                                                                         S
               'l. According to AMC, the decision to use earthen covers or l

sc=e a:her =eans of control is the type of " engineering" . decision that NRC, no: EPA, must make; therefore, "EP A' s

                                                                                                                                                                            'l radon standard was adopted as a ' surrogate' to do indirectly                                                                                                j wha    Congress has prohibited the agency from doing directly."                                                                                          ,

_Id. at 22. AMC's argument rests on a misleading and incomplete picture of the purpose and effect of the regulation. EPA's e

                                                                                                                                      . _                                   l

a

   . g 46-t regula: ion specifies the s:andard that a selected =ethod of                              1' i
                 ~ disposal mus: achieve; it per=its use of any =ethod that                                    I I

will provide reasonable assurance of at:aining that standard.

i, l EPA believes tha: ear: hen covers are most likelv to be used, 4 because they acco=plish several goals 41/ of the regulation 1 i si=ul:aneously and co=paratively cheaply. See 48 Fed. Reg. ( 45937 (col. 2) (J.A. ]; 1 FEIS 8-17 [J.A.

};

1 FEIS 10-1 [J.A. ]. Ther.efore, EPA's c'echnical I w i analysis generally characterized how cover technology =ight ' be used to a::ain the standard. But far fro = precluding c:her =ethods, EPA recognized that other =ethods =ight well 2 I-be used. 42/ .- AMC is correct that EPA rej ected the alterna:ive of establishing an a= bien: radon concentra ion standard (i.e., a limit on the A=ount of radon in relation to the.- volu=e of air at the site boundary) in favor of th 20 picoeurie radon flux standard. The reasons for this..desision j . .*

are discussed infra a: 55-58, in response to AMC's chall-e'nge .

41/ Those goals are; (1 ) to discourage future =isuse of tailings; (2) to protect people from radon emissions from

ailigs piles; (3) to prevent the surface spread of tailings; and (4) to protect groundwater. 1 FEIS 8-1 (J.A. };

43 Fed. Reg. 45930 (col. 2) (J.A. ]. 42/ For exa=ple, EPA recognized.tha "=ethods to inhibit the release of radon range from applying a si=ple barrier (such as an earthen cover) to such a=bitious treatments as e= bedding tailings in ce=ent or processin the= to re=ove radiu=." 48 Fed. Reg. 45930 (J.A. .

1 cf

:he =eri:s of those j udg=en:s , and all of the agency's

,~_~,. easons properly relate to the goals of the Act. The point

                        + wre , however , is that nene of those reasons converts the

' d. ,- i indon flux standard in:o so=ething it is no -- a detailed, 1s.:e-specific design or engineering requirement. 43/ The 1::gulacion requires reasonable assurance that the standard

                              .11 ce achieved; how to accocplish tha: goal will vary froc                                   -

I t.:e to site, and will be determined by the NRC, in accordance

                   #                                                                                                  (   "

44/ a c::h the statutory sche =e. ~ 1 ' t

                 ,2 I        a/       For example, it is true that EPA rej ected an ambient 1
                          -~

radon concentration s:andard in par: because it believed i .a: such a regulatory approach would not adequately, protect I :he public from mill ailings hazards over ti=e; in contrast,

               !           a radon flux standard would better serve that end because it I            auld necessi: ate controlling or reducing the emissions

:ne=selves; it does not si= ply modify the. behavior of the public by, e.g., restrie:ing access to or use of the i=cediate

            ,f             area around cne piles.                      It is absur'd for AMC to sugges: cha:

_ j :his basic judgment is reserved to the NRC under rhe. " site-j specific design and engineering" rubric. As a prac.tical j na::er, any generic policy choice or level of control prc=ulgat,ed g by EPA =ay li=i the options available for co=pliance.. It

         ,                 is within EPA's authority to determine that a particulaf .

y regulatory approach is preferable to some other approacy. s i because', inter alia, the =ethod of compliance is likely.co

      }                    fur:her c:ner legi i=a:e sta:utory goals; the exac: design and engineering aspec:s cf the compliance methoc                            (e.g.,

vhe:her to use an earthen cover and, if so, i:.+ chickness,

is:ure con:en: and con:our) are left to NRC 's ce ter=ination.

ii/ Similarly, :he requirecent of reasonable assurance that the radon'lisi: be me: for 1,000 years (or, in the excep-tional case, for 200 years) is not a site-specific prescription exceeding EPA's au:hority. To specify for how long protection should be assured is no: to dictate the means of achieving . longevi:y of control. 1, too, is a generic requirement applicable to all disposal sites and is related to the long-

ers risks that Congress intended to reduce. The NRC retains full responsibtitty to de er=ine how uastes must be disposed of, e.e., by burying, covering or :reating them, to assure long-ter= protection. .

O E L- . - . . _ . ~ . _ , . _ . , . ., ,,

      .,s.

B. The Groundwater Recuire=ents f i The regulations establish a "pri=ary standard" that

             ~ prohibits =igra: ion of con:a=inants to groundwa:er beneath all                                    i a

new :ailings piles and lateral extensions of existing piles. j 40 C.F.R. 5 1,92.32 (a) (1 ) acco=plishes this by incorporating i by. reference, in relevan: part, 40 C.F.R. 5 264.221, which are { the regulations EPA has promulgated under Subtitle C of the ; Solid 'n'aste Disposal Act , as amended, 42 U.S.C 55 6901 et sec. ("SWDA"). Because this standard can.usually be achieved only . E= . by installing a liner, 48 Fed. Reg. 45941 (col. 1) [J.A. ], , the AMC contends that this require =ent constitutes

                                                                       ~
                                                                                ?

an. imper =.issible

                    " detailed engineering requirement .                    . . ."    AMC B r . a t 24 . But again, AMC is wrong.

The non=igration requirement is authorized, if not required, by the statute because UMTRCA directs tha: standards for urani=u= mill tailIings =ust provide. " protection of hb=an health and environ =ent consistent with the. standards req 61 red .. ; under Subtitle C of [SWDA] . . . ." 42 U.S.C. 5 2022(.b)(2). j e" " < See infra a: 81. The regulation is not a specific design or i engineering requirement. It specifies the goals that must be achieved (e.e., the prevention of =igration of wastes out o f-the i= pound =ent, 40 C.F.R. 5 264.221 (a)) . Although this goal generally can only be achieved by installation of a liner, any method that achieves the obj ec:ive may be used. See 40 C.F.R. 5 264.221(b); 264.222. AInd even as to liners, the regulation does not specify the type or characteristics of a liner that must be used; it manifestly leaves to NRC and the A i

a 2 l l 2 c;cra:or of each site the determination of how to design for [ :hl se goals in terms of the composi: ion of the liner, its i :.- .ekness and c her factors based on the characteristics of e _h si:e. See also 47 Fed. Rec. 32274, 32517 (July 26, e

        },      '::2) (col. 1) and 32319 (col. 1).

s

        ?,
       ;                   IV. THE RADON FLUX STANDARD IS REASONA3LE 5

AND ADEOUATELY EXPLAINED o J

     .j                      Industry petitioners argue tha: the standards are                      (

3 1 :: a product of reasoned decisionaaling"; are not supported o

bl

     /                cherecord;arebasedonimper=issibl'epolicyassumption$
     =                                                      -

3

     }          . ;her than hard evidence; and Impose unreasonable costs in

'.a ion to the benefits of the standards. Environcintal

                :i:ioners, on :he other hand, contend that the standards cra no: stringen: enough, and that Ut!!RCA requires EPA to f

e.:ablish "s ate-of-the-art" require $ents that elicinate'all risks associated with ac:ive =ill tailings. -

Petitioners' conflic:ing views as to what UMERCA, ,

                                                                            . ~ , .

recuires points up the fact that it is EPA that ultimatbly'has j the respcasibility -- and the discretion -- to weigh ce=peting T fae: Ors under the sta:ute . The record in this case denonstr.ates .

ha: the Administrator has exercised that authority in a reasonable canner, and has adequately ar:iculated his ra:icnale.

Pe:i:ioners' challenges rest, in large measure,, on mischarac-teri:a: ions of wha: the Administrator did and the clearly 1 s:a:ed reasons for his decisions. 1 I "b' .. . . .. . .. ,

1 Q-40 , o pmAs&J g . l'* 4 9 F A dh 64 6 ni8Sc-A f.kWoHlif , YS . - hp f_[ PO # /,, ,, Dcset no. _ l[

                                                      %,                                       POL         _
                                            !     %    k      Dis'r:bution: _
                                                                                                  ~ ~      - -

W'"[j/i Ld-da_ waacame ~ ~~

                                                                             ,jp_s_s) Jr?r~
                                                                                                         ~

(Retura to wq 7 RULEMAKING ISSUE

                                                                                            '~
                                                                                                        ~

May 20. 198s SECY-85-178 (Affirmation) For: The Commissioners From: William J. Dircks Executive Directer for Operations

Subject:

FIhAL AMENDMENTS TO URANIUM MILL TAILINGS RULE TO 1 IMPLEMENT EPA STABILITY AND RAD 0N RELEASE STANDARDS Purcose: To request Comission approval to publish final amendments to 10 CFR Part 40 conforming to and implementing stability and radon release provisions of the Environmental Protection Agency's (EPA) final standards for uranium and thorium mill tailings.

Background:

Final EPA standards for uranium and thorium mill tailings were published October 7, 1983 in new Subparts D and E to 40 CFR 192 (see Enclosure C). The NRC Authori::ation Act for FY 1983 (Public Law 97-415) requires that NRC conform its tailings regulations to these final EPA standards. A two-step process was approved to modify the Commissicn's rules to fully reflect the EPA standard: (1) amendments to Appendix A of 10 CFR Part 40 published in the Federal Register for public ccmment (49 FR ac418, November 26, 1984) and (2) further amendments to 10 CFR Part 40 as described in the accompanying Advance Notice of Proposeo Rulemaking (ANPRM) (49 FR 46425, November 26,1984). Copies of the two notices are included as Enclosure A. 3 Contacts: l K. Dragonette, NMSS 427-43C0 i

 . R. Fonner, ELD                                                                      cri

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                                                                                                '4 4g og+sc 25                                     k'      5 0                      3         $

( l 9

I Discussion: The proposed amendments to Appendix A reflected conforming changes to existing provisions necessary to remove conflicts with the EPA standard and to incorpcrate the stability and radon release provisions and other provisions of the EPA standard not related to ground water. The ANPRM outlined plans for further amendments to 10 CFR Part 40 to incorporate the ground-water provisions imposed by the EPA standard and establish other requirements as necessary to satisfy the Uranium Mill Tailings Radiation Control Act of 1978, as amended, (GMTRCA) mandate for Resource Conservation and Recovery Act (RCRA)-comparable standards. Coments on the ANPRM are still under review. Coments on the ANPRM addressed many of the same general issues and raised no significant new ones. The cements on the two rulemakings, the depressed state of the industry, and the need to concentrate staff resources on implementation guidance and licensing cases have prompted staff to reconsider the nature and scope of the second rulemaking. As noted in the proposed notice in Enclosure B, a followup simple rule change to incorporate the specific ground-water protection provisions of 40 CFR 192 is one option being considered. Staff recomendations on the second step will be forwarded to the Comission as soon as the coment analysis is complete and a decision reached. Publication of the final first step rulemaking need not and should not be delayed pending a decision on the seconc step. Publication by the end of May would complete the first step in 6 months following publication of the proposed rule. The ccment period for the proposed rule originally expired on January 10, 1985 but was extended until February 10, 1985. Twenty-four comenters responded with 26 sets of coments. Six environmental groups, seven States, two Federal agencies, seven industry representatives, one individual, and one pro-nuclear group responded. Coments were offered on both general issues and the specific changes in the proposed rule notice. The coments and responses are sumarized in the final rule notice in Enclosure B. Enclosure D is a copy of the detailed staff analysis of the coments. Enclosure D also includes copies of the coments. The enclosed final rule notice in Enclosure B reflects and incorporates the Office of the General Counsel's (0GC)

,j

response to the American Mining' Congress (AMC) jurisdictional arguments and EPA's comments on the Commission Authority and Responsibility Statement. The OGC response is contained in SECY-85-125. The Commission's policy statement is included in the notice without change. After consideration of the comments, staff recommends the final rule proposed for Commission approval in Enclosure B. Staff concluded that the basic two-step rulemaking approach is still feasible and advisable. The major differences between the proposed and final rules are: (1) Addition of an insert to the Introduction requiring consideration of risks and costs in site specific licensing decisions; (2) Addition of an insert to Criterion 5 clarifying the applicability of 40 CFR 192; (3) Clarification of the general goal of permanent isolation of tailings in Criterion 1; (4) Clarification in Criterion 6 that the radon flux limits are to be met for the effective design life of the reclaimed impoundment; (5) Clarification in Criterion 8 that doses from radon emissions are to be as low as is " reasonably achievable" rather than as is " practicable"; and (6) Addition of changes to 10 CFR 150 to clarify Agreement State options to adopt alternatives under section 2740 of the AEA. Other minor clarifying and editorial changes were also made. Recommendations: That the Commission:

1. Approve publication of the final rule changes to 10 CFR Part 40 as set forth in the draft Federal Register Notice in Enclosure B.

2. In order to satisfy requirements of the Regulatory Flexibility Act (PL-96-354) certify that the final rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. The basis for this certification is summarized in the enclosed Federal Register Notice (Enclosure B) under the Regulatory Flexibility Certification heading.

3. Note:

a. Licensee compliance with Subparts 0 and E of 40 CFR 192 is an existing requirement and the proposed regulations merely incorporate specific requirements in 40 CFR 192 into NRC regulations.

EPA issued a detailed Regulatory Impact Analysis in support of its standard and there is no significant additional impact arising from the proposed changes to Appendix A. Accordingly, no additional regulatory analysis has been prepared for the changes to Appendix A.

b. EPA prepared and issued comprehensive draft and final Environmental Impact Statements in support of its standard, respecting control of radon releases, and cover longevity and stability, and the staff does not believe any additional environmental review is needed for these standards.

c. That the Chief Counsel for Advocacy of the Small Business Administration will be informed of the certification and the reasons for it as required by the Regulatory Flexibility Act.

d. That the Subcommittee on Nuclear Regulation of the Senate Committee on Environment and Public Works, the Subcommittee on Energy and the Environment of the House Committee on Interior and Insular Affairs, the Subcommittee on Energy and Power of the House Committee on Interstate and Foreign Commerce, and the Subcommittee on Environment, Energy and Natural Resuurces of the i

4

House Comittee on Government Operations will be informed by a letter similar to Enclosure F.

e. That Rep. Samuel Stratton, Chairman of the House Procurement and Military Nuclear Systems Subcomittee, will also be informed by a letter similar to Enclosure F.

f. That this final rule does not contain a new or amended information collection requirement subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.),

and that existing requirements were approved by the Office of Management and Budget approval number 3150-0020.

g. That a Public Announcement such as Enclosure E will be issued on filing of the notices with the Office of the Federal Register.

h. That copies of the notice will be distributed to all Commission uranium mill licensees and copies will be provided to Agreement States for distribution to their uranium mill licensees.

i l!

/,

f4;( . -: .t_x William J. Dircks Executive Director for Operations

Enclosures:

A. Federal Register Notices (2) B. Proposed Notice of Final Rulemaking C. EPA Standard D. Staff Analysis of Public Coments E. Draft Public Announcement F. Draft Congressional Letter l

 .                                      Commissioners' comments should be provided directly to the Office of the Secretary by c.o.b. Friday, June 7, 1985.

Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Friday, May 31, 1985, with an infor-mation copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected. This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of June 10, 1985. Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time. DISTRIBUTION: Commissioners OGC OPE OI OCA OIA OPA REGIONAL OFFICES EDO ELD ACRS ASLBP ASLAP SECY J

d<olor>sc htrig. .v u a u s 4 t.L.

             $4' d r> nn nwemc w /-on D st& W      r/affrf esbs~      Lsicy-Pr.,7f)

ENCLOSURE A

I 46418 Federal Register / Vcl. 49. No. 228 / M:nday. N:v;mber 26. 1984 / Proposed Rules grain is being sacked. or while the grain considerstion may not be given except is at rest in a warehouse or holding opportunity frr public comment. Today's l Ecihty in accordence with the for comments received on or before this proposal addresses that responsibility. instructions. da te. ( Previous Actions (3) "OUT" movements (other than Acomesses: Mail comments to ' cxport/. Each checkweighing of an Secretary. U.S. Nuclear Regula tory In keepmg with section 18(a) of the "OUT" movement of nonexport sacked Commission. W ashington. DC 20555. NRC Authonzation Act. the Commission grain shall be based on an official Attention: Docketing and Service suspended portions ofits October 3. 1980 m;ll tailings regulations after notice weight sample obtained from the grain Branch. Deliver comments to Room 1121. as the grain is being loaded m the 1717 H Street NW Washington DC and opportunity for public comment (4a carrt:.r or container. or while the grain is between 815 a.m. and 500 p.m. FR 35350 ALgust 4.1983). As required at rest in the carrier and container. or weekdays. by the Act, this suspension termmated while the grain is at aest m a warehouse automatically April 1,1964. Those M MTNER INFORhsATiO4 CONTACTt = or hilding facility, or while the grain is portions of the Commission's regulations being sacked in accordance with Robert Fonner. Office of the Executive which were suspended were those that s Legal Director, telephone (301) 492-8692. procedures presenbed in the or Kitty S. Dragonette. Dtvision of were determined to be in conflict or matructions. Waste Management. U.S. Nuclear inconsistent with EPA's proposed 3 (4) " LOCAL" weighing. Each regtniremente. More specifically. the ' Regulator / Commission. Washngton-checkwsignmg of a "!.OCAL" DC 20555. telephone (301) 47.7-4300. suspended portions were those that movemxnt of sacked grain shall be would require a major commitment or bIsed on an official weight sample suret.ansantany imponesAftom:The major acuan by licensees which would cbtsm:d while the grain is at rest or Nu: lear Regulatory Commission (NRC be unnecessary if:(1) The EPA proposed while the grain is bemg transferred in or Commission)is proposing standards were promulgsted in final eccordince with procedures prescribed modtfications to os regulanons for the form without modification, and (2) the in tha instructions- purpose of confornung them to generally Commission's regulations were modified applicable requirements recently to conform to the EPA standards. The

    % sag,,o,.goag3 g%g                               promulgated by the Enytronmental              objective of tl e suspension was to avoid Proten son Agency (EPA).These new

6. Sections 800.100. 800.101. 200.102. a situation where a licensee or applicant and 800.h3 would be removec. EPA requirements are contained in might mske a major commitment or take Subparts D and E of 40 CFR Part 192 (48

iPut L. 944ai. 9u we asw. e ammW a major action which would be U.S.C. rt et seq.11 FR 45926; October 7,1983), are unnecessary or ill-advised after applicable to the management of subsequent rulemaking to modify Ds<t Nm emtwr 5. M4 uranium and thonum byproduct permanently the existing regulations on Kenneth A.Gi!!as.

   .4dmimstmtor.                                     matenal. and became effective for NRC          the basis of EPA's final standards.

and Agreement State licensees ud rnio.c - r w n-a m license apphcants on December 6.1963. The final EPA standards are very

   -        comesc. m                                The action proposed herein would               similar to those that were proposed.

Nevertheless. the Commission has modify previously existing regulations of reconsidered the appropriateness of NUCLEAR REGULATORY the Commission *o conform them to the changes to Appendix A to 10 CFR Part new EPA requirements. and would OOWISSION 40 in light of the new EPA standards. incorporate certam of the new EPA requirements into the Commission'e and the need for additional supportmg to CFR Part 40 documentation. The changes proposed regulations. The affected Commissan today are more inodest than the M Tamng RW regulations are contained m Appendix A previous suspension. CWW MC Memnents to EPA to 10 CFR Part 40. which was promulgated in final form on October 3. Scop 8 oN8 N Posal 1980 (45 FR 65521). Acesev: Nuclear Regulatory In addition to conformmg its existing Commission. The modifications to Commission regulatiors to new EPA standards. regulations proposed herem will ACTION: Proposed rule, under the provisions of the UMTRCA. incorporate withm NRC regulations the Comrmssion has a further legiLlated sussesAmy:The Nuclear Regulatory some of the new EPA requirements. The responsibility:it must establish general Commission (NRC)is proposmg to action thet the Commission will take requirementa. for the mansgement of (mend its regulations governmg the with respect to the remamder of these byproduct matenal, with EPA disposal of uratuum mill tailings. The new EPA reqmrements is the subject of concurrence, which sie, to the maximum proposed rule changes are intended to an Advar.ced Notice of Pr^ posed extent practicable, at least comparable conform existing NRC regulations to the Rulemaking (ANPRM). which requests to requirements applicable to the regulitions published by the comment on that subject, also issued management of similar hazardous Environm:ntal Protection Agency for this day. These new EPA requirements matenal regulated by the EPA under the th] protection of the environment from were developed and issued by EPA Solid Waste Disposal Act (SWDAl. as these wastes. This action is being taken pursuant to sectun 275b. of the Atomar amended. The Commission deliberated to c mply with thelegislative mandate Energy Act (42 U.S.C. 20221. as added by as to how best to dea with these re:ated sect;on 206 of Pub. L 95-804. the rulemaking needs and decided on the set out in the Uranium Mill Tailings R-di:ti:n Control Act and the NRC Uramum Mill Tailings Radiation Control course of action resu' ing in this Authonzstion Act for FY 1941. Act of 1978 (UMTRCA). Under section proposal and the accompanying cart:The comment penod czpires on 18(a) of Pub. L 97-415. the Naclear ANPRM. This proposal addresses all the Regulatory Commission Authortzation changes to the eusting Commission Pnurry 10.1905. Couments received Act for fiscal years 1982 and 1983. the regulations in Appendix A to 10 CFR aft:r this date ws!! be considered if it is practic:1 to do so but assurance of Commission was directed to conform its Part 40 that can be legally promulgated regulations to EPNs with notice and without additional supporting l I _ i

Federal Register / Vol. 49. N2. 228 / M2nday. N:vember 28. N4 / Proposed Rules 46419 documentation. Other changes to the (2) Adhere to applicable requirements standards promulgsted by the 3 Commission's regulations for mill in 40 CFR Part 440 " Ore Mining and Environmental Protection Agency in 40 tailings managentent resulting from the Dressing Point Source Category: Effluent CFR Part 192. Subparts D and E." EPA standard are the subject of the Limitations Guidelines and New Source Reason:The flexibility to propose cccompanying ANPRM. Performance Standards. Subpart C. alternatives to the Commission's and The content of these two rulemakings Uranium. Radium, and Vanadium Ores EPA standards was included in Pub. L also may be charactenzed in terms of Subcategory." 97-415 changes to the AEA.The added the need for EPA concunence, although (3) Mamtsin releases of radon to the paragraph paraphrases the language in that was not the deciding factor. This atmosphere dunng operations as low as Section 64c. The added paragraph proposal consists of modifications not is practicable; explicitly acknowledges the legislative requinns EPA concurrence. including (4) Close disposal areas so as to intent and provides licensees and conforming changes to existing NRC provide reasonable assurance of applicants the opportunity to propose rules and incorporation of EPA effective control for 1.000 years, to the alternatives as a routme licensing requirements not denving from the extent reasonably achievable, and. in matter. Licensees would have to provide SWBA.Those modifications that are th., any case, for at least 200 years: a site specific rationale to enable the subject of the ANPRM accompanying (5) Limit average post closure releases Commission to make the required this proposal dertving from the SWDA of radioactive radon gas to no more than fin' ding. This genene approach was require EPA concurrence persaant to 20 picocuries per square meter per taken instead of modifpng individual i section 64 of the Atomic Energy Act. second (pCi/m8.s); and enterta to provide flexibthty. A generic Modifications addressed in the ANFRM [6) Set hrnits for residual approach avoids the chance of not I c ncentrations of radioactive radium include:(1) Incorporation mto NRC identifying a!! areas where flexibility I regulations of SWBA requirements leh m soil, above background. La onsite may be needed and preserves the clready imposed by the EPA. (2) any areas not subject to the closure existing support for Appendix A. l further modifications to NRC regulations requirements for longevity and radon Administratively, alternatives are easier

          - neassary to establish SWDA-                 release    contmL                             to process under an explic;t provision comparable requirements as called for      Propeaed Modifications and Rationale          than exceptions to rules.

by the IJMTRCA. and (3) any further i modifications needed to address in accordance with the above. the 2. Cntenon 2 Commission proposes the following presenptive provisions that were I'I " nt paragraph delete the modifications to Appendix A to 10 CR suspended pnor to Apnl1.1964 but not Part e phrase . for thousands of years proposed for modshcation by this action. * * * " and insert " * * * ." This course uf action was chosen to L Intiduction Reason:The thousands of years ellow the Commission to both conform (a)In the second sentence of the third language confli:ts with the 40 CFR its regulations to EPA's and incorporete paragra ph. change "amendability" to 192.32(b) standard of design of control non.SWDA provisions in a prompt and " amenability." measures to be effective for 1.000 years. orderly manner and deal with the Reasort This change corrects a (b)In the second listed item of the complex of SWDA requirements and typographical error first paragraph. delete the word issues in a separate. comprehensive and (b) Delete the fourth paragraph in its " usable." unified rulemaking. entirety. Reason: Both 40 CFR 264.221 and 40 Content of This Proposal Reason:This change deletes an CFR 284.92, which are included by information submittal requirement reference in 40 CFR 192.3t(s). require The new EPA requirements in 40 CFR which was established in connection isolation of contaminants from all P n 192. (48 FR 45926) included by with implementation of the onginal qualities of groundwater, net b;;t ;..able reference several sections from 40 CFR Appendix A critens.The due date groundwater sources. Part 264. promulge;ed by the EPA onginally set for submittals is past. A pursuant to authonty provided by the ### ## new due date for revised sabnattals is , Resource Conservation and Recovery not considered necessary. 14 Delete the moshrrchigh quahts " i Act (RCRA). which modified the SWDA. (c) Add the following paragraph at the for groundwater in the second sentence These SWCA (or RCRA) requirements end:"!.icensees or applicants may of the second paragraph. t imposed under 40 CFR Part 192 are propose alternatives to the specific Reason The EPA standards require addressed in the ANPRM accompanymg . requirements in this Appendix.The protection of all qualities of this proposal The few conforming altemative proposals may take into groundwater, not just high ouality

    ,        changes to NRC's existing Appendix A       secount local or regional conditions.        sources.

regulations made necessary by these including geology. topography. ! new& imposed SWDA requirements are hydrology, and meteorology. The # "### # l cddressed in this document. as are Commission may find that the proposed (a) Revise paragraph (a) by deleting j c:nforming changes and other changes attematives meet the Commission's " maximum possible flood" and insertmg i necessary to reflect and in:orporate the requirements if the altematives will " Probable Maximum Flood."

      ,      n:n-SWDA elements of EPA's new             achieve a level of stabilization and            Reason: Probable Maximum Flood requirements. These non-SWDA               containment of the sites concemed. and       reflects the appropnate hydrologic tenns l      provisions include requirements to--       a level of protection for public health. for a design basis and the onginalintent (1) Adhere to applicable requirements  safety, and the environment from             of the provision when Appendix A was m 40 CFR Part 190. " Environmental         radiolog2 cal and nonradiological            promulgated.

Ridiation Protection Standards for hazards associated with the sites. which 3, c,j,,7j,, y Nuclear Power Operations" for uranium is equivalent to, to the extent e byproduct matenal. and essentially the practicable. or more etnngent than the (a) In the first persgraph. delete ths sarae recuirements for thenum level which would be achieved by the first two sentences begmning " Steps i byproduct material: requiremeros of this Appendix and the shall be taken * * * " and ending l .

48420 Federal Register / V21. 49. N2. 228 / M:nd y,' N2v:mb r 28.1984 / Proposed Rules

       " potential uses." and the phrase " * *

an w. hen cover shall be placed over in order to secomplish this objective."in (d) At the end of Cnterion 6. add a tai'Jngs or wastes at the end of milling new paragraph to read:"*he design l

tha third sentence. operations and the waste disposal area i Recaon:The EPA groundwater requirements in this Critenon for protection standards referenced in 40 shall be closed in accordance with a longevity and control of redon releases design 8 which shall provide reasonable shall apply to any portion of a licensed CFR 192.32(a) do not permit any scepage assurance of centrol of radiological and/or disposal site unless such portion to groundwater. haurrh im fi) Br ffr. tiw tur mm contains a concentration of radium in { (b)In the first listed item under the i first paragraph beginning with thousand years, to the extent reasonably land, averaged over areas of 100 square achievable, and. in any caserfor at least meters, which, as a result of byproduct

       " Installation of * * * " delete the words                                                                                                            ,
      "hw permeabdity" as a charactenstic of 200 years. and (ii) limit releases of                      material does not exceed the bottom liners.                                   radon-222 from uranium byproduct                 backgrcund level by more than:(i) 5 Reason:The EPA groundwater                  materials, and redon 220 from thorium            picocunes per gram (pCi/g) of radium.             .!

protection standard referenced in 40 byproduct matenals, to the atmosphere 226. er in the case of thonum byproduct CR 192.32(a) requires a liner that so as to not exceed an average a release matenal, radium-228. averaged over the 'i prevents migration of wastes out of the rate of 20 picocunes per square meter first 15 centimeters (cml below the impoundment into the adiacent soil and per second (pCi/m's)." surface. and (ii) 15 pCi/3 of radium-226. groundwater. Low permeabdity implies Reason:The change replaces previous br. in the case of thonum byproduct ^ th:t some migration is allowed. Commission requirements for mmimum matenal, radium-228. averaged over 15-(c)In the second paragraph begm.nin cover thickness and post-closure radon cm thick layers more than 15 cm below "Where groundwaterimpsas * * * " 8 control with the EPA standards for the surface." dite the phrase "to its potential use longevity and radon control. De EPA Reason *.his change incorporates the befire milling operations began to the standard in 40 CFR 192.32(b) for EPA requirements for "te ef eanup environmental protection after closure outride the actual iisposal area. in as n. he EP standa in 40 CM ** * ** ** ""'I ' " ' ' * " '" ' " provide reasonable assurance that control closure standards are not re uire a o ctfv a p ram to releases f radon.222 do not exceed 20 applicable (see 40 CFR 192.32(b)(2) and restore groundwater to standards picocuries per square meter per second. 192.41). I s andardis sen !! s an te a c U a # nondegradation standard. Restoration of functi n fI ngevity and redon release (a) At the end of the first full groundwater quality only to the extent and will be determined based on paragraph. add a new sentence to read nic;ssary to restore its potennal use is meetmg the 20 value instead of 2.The Dunng operations and pnot to closure, inconsistent with EPA standard. three meter mmimutn precriptive radiation doses from radon emissions (d) Delete in its enttrety the third requirement was developed to achieve a from surface impoundments ahall be paragraph begmning "While the pnmary 2 picocune emanation rate based on the kept as low as is practicable., m:thod of protectmg groundwater shall assumed typ6:al soil conditions. Recsant his change incorporates the I be isolation * * * " and ending - . . . (b) Add to Cnterion 6 the following EPA requiremer.t imposed under 40 CFR from current or potential uses." two footnotes which accompany the 192.32(a)(4). Reason:The EPA standards for revised first sentence: footnote:(1)"The (b) Following the third full paragraph groundwater protection in 40 CFR standard applies to design. Momtormg of Crs' anon 8. rust before Critanon EA. 192.32(a) protect groundwa ter primanly for radon after installation of an insert the foll: wmg two new on the basis of background-level appropnately designed coveris net paragraphs: concentration limits for herzardous required." and footnote (2) "This " Milling operations producing or constitutents. and not m terms of current average shall apply to the entire surface invoiving thonum byproduct matenal or potential uses. The deleted sentence of each disposal area over penods of at allowed consideration of tailings in shall be conducted in such a manner as least one year, but short compared to to provide reasonable assurance that the contact with groundwater.The EPA 100 years. Radon wt!! come from both annual dose equivalent does not exceed st:ndard permits no seepage to uranium byproduct matenals and from groundwater. 25 rmilirems to the whole body. 75 covenng matensla. Radon emissions millirems to the thyroid and 25 (a)In the first sentence of the fifth from covenna mate tals should be millitems to any other organ of any p:ragraph begmnmg "Diis information . estimated as part of developing a member of the public as a result of shall be gathered * * *" delete the word closure plan for each site. The standard.

   "usible" where it modifies                                                                       exposure to the plarmed discharge of however, applies only to emissions from "groundwa ter.~                                                                                  radioective materials. redon.220 and its byprodect matenals to the atmosphere."           daughters excepted. to the general Recson:The EPA standard in 10 CFR                Recson:This change fully                    environment."

192.32(a) does not distmguish between incorporates the EPA radon control "usaile" and nonusable acquifers. The standard. " Uranium and thorium byproduct groundwater protection standard materials shall be managed so as to (c)In the fifth sentence of the first conform to the applicable provistons of apphis umversally to acquifers of any paragrapri. replace "non. soiled" mth qu:lity or potent 91 use. Title 40 of the Code of Federal "non. soil." and replace the words "to Regulanons. Part 440. Ore Mining and

6. Cnterion 6 reduce tailings ccvsrs to less than three Dressmg Point Source Category: Effluent meters" with the words "as cover Iimitations Guidelines and New Source laiDelete the first sentence in matenals."

entitaty, begmning with " Sufficient earth Performance Standards. Subpart C. Reason The first change corrects a Uranium. Radium, and Vanadium Ores cov;r * * '" and ending with "* *

typographical error. The second is an meter per second.". and in its place Subcategory, as codified on January 1.

editorial change to be conatseent with 1983." insrrt "In cases where waste byprcduct matenalis to be permanently disposed, the deletion of the three meter mmrmum Reason:Dese new pangraphs requirement as d:scussed in (a) above. incorporate EPA requirements imposed

      . it

Federal Register / Vol. 49. No. 2:a / Nfondry. November 28. 1984 / Propos;d Rules 484n undee 40 CRt 192.41(d) and 40 CFR regards uranium mill tailirigs sites and rulemaking action, can be viewed as the 19232ta){3). respectively. have no broader connotation. lead agency.

8. Cntene 2. 7.9.10.11 and 12 are not De Commission believes that affected by the new EPA standards or hcensee proposala for alternataes can Paperwork Reduction Act Statement editorial ch' anges and no modification is be an important and effecaee way to This pro;===4 rule doma not consam a proposed for sny portion of those help deal with the pmbleau associated new or amended information collection cnteria. with implementmg the new EPA requirement subject to the requirements Commission Authority and standards. The Commission expects that of the Paperwork Reduction Act of1980 ResponsiWy it may require several years to have its (44 U.S.C. 3501 et seq.). Existing conforming regulations fu!!y in place. It requirements were approved by the Secdoa 64c.of the Atomic Energy Act expects to use the fleubility provided Office of Management and Budget state that; A Uceasee may propose by section 84 in the interim to consider approval numbat 315t>0020L alternatives to spec 6c requirements and approve alternative proposals from adopted and enforced by the licensees. Secton 84c. prov des NRC R@W FIMh Cdution Commission under this act. Such sufficient authonty to independently As required by the Regulatory alternauve proposals may take into approve alternatives so long as the Flexibility Act of 1980. 5 U.S.C. 605Lb).

account local or regional conditions. Commission can make the required includmg geology, topography, .the Commission certifies that this rule determinat.on. will not,if promulgated. have a hydro'ogy and meteorology. The Commissten may treat such alternatises t d b PwW Me 8ignificant economic impact upon a as satisfying Comnusaton requirements substantial number of small entities. The Commission's action in proposing Therefore, we have not performed a if the (%=saion determmes that such these modacations to its regulations in Regulatory Flexibility Analysis.%e alternstrves will achieve a level of Appendix A to 10 CFR Part 40 is to basis for this finding is that of the stabthzatson and containment of the conform them to the new EPA licensed uranimn mills, only one sites concerned. and a level of standards. These changes are for the protecton for public health safety, and qualifies as a small entity. Almost all purpose of avoiding conflicts and the mina att owned by latie the env'.ronment from radiological and inconsistencies, and for clanfytng corporsuons."Iluwe of the mills are nonradiological hazards associated with previously existing language so as to be partly. owned by companies that could such sites, which is equivalent to to the compatible with the new requrrements. extent practicable, or more stnngent quahfy as small h-an=as according to

                                                    'Ilte action proposed here by the than 'he level which would be ackueved       Commission is a consequence of the  Small     Businaas Mn-tration by standards and req nrements adopted                                                      genenc     =an   enuty defimtion of 500 previous actions taken by the Congress        employees. However mder the and enforced by the Commission for the        and the EPA. and is legally mandstad in same purpose and any final standards                                                        Regulatory Flexibihty Act, a small section 275b(3)of the Atocuc Energy Act busmess is one that is independently promulgated by the Admmistrator of the of 1954. a s amended.

Environmectal P etect2on Agency in owned and operated.Since these three Commisswan action in this case sa accordance witn secton 275 esentially nondtscrettonary m nature- mills are not independently ownud they The Commission histencaHv has had and for purposes of environmental do not qualify as small entitiaa. the authonry and respensibihty to analysis. rests upon existing List of Sobjects in 19 Cnt Part 40 regulate the activities of persons environrnental and other rmpact licensed under the Atomic Ene gy Act of evaluanons in the followmg documents- Covernment contracts. Hazardous 1954. as amended. Consistent with that matanale-transportation. Noclear (1) " Final Environmenta! Impact authonty and in accordance with ma tenals. Penalty. Reporting and Statement for Standards for the Control recordkeepmg regmrements. Source section 84c. of that Act. the Commission of Byproducs Afatenals from Uranuam has the discret2on to reuew and Ore Processmg (40 CFR Part 19 L' matenal and Urunmm. approve site spectfic altematnes to Under the Atomic Energy Act of 1954. Volumes 1 and 2. EPA 520/1-abo 08-1 standards promulgated by the and 2. September 1983. and (2) as amended. the Energy Reorgatuzation Comnussion and by the Admmistrator of Regulatory irnpact Analysis of Fmal Act of 1974. as amended. 5 U.S C. 553. the Environmental Protection Agancy. In Ennronmental Standards for Uramum and the Uranium Mill Taihngs Radiation the exere:se of this authnnty. Secnon Mill Ta11mg at Active Sites. EPA 5:0/1- Control Act cf 1978 as amended. the 84c. does not requi e the Commission to 83-010. Sep' ember 1983. both prepared NRC is propoemg the followmg obtain the concurrence of the in support of Subparts D and E of 40 amendments to 10 CHI Part 41. Admmistrator m any s:te specific CFR Paret 192. and (31 " Final Generic alternatise which satisfies Ccmm:ssan Emironmental Impact Statement on PART 40-DOMESTIC LICENSING OF requirements for the les el of protection Uranium Millmg." NUREG-0706, SOURCE MATERIAL for public heahh. s.fe'). and the September 198a prepared in support of 1. The authonty citanon for Part 40 is environment from radiological and Appendix A of to CFR Part 40. The nonradiological hazards at uran:um mill revised to read as fonows: Commission beheves that these Authenty: Sees 62.63.64.65.81.161.182. tallmg sites. As an example, the suppornng analyses for the new EPA l 183.186. 66 Stat. 932. 933. 933. 94& 95J. 954. Commisson need not seek concurrence standards and the eusting Commission 955. as arnanded, secs. tie (21. 83. 84 Pub. L l of the Administrator is case by. case regulations provide a more than 95-604. 9:S'at. 3c13. as amended. 3039. sec. determmanons of altemative adequate environmental review for the :34. e3 Stat. 444. as amended (4:U.S C. concentration limits and delistma of standards addresed herem. and that no m 4M:1. mos3. m :on 2111. 2113. hazardous constitutents for specific add:tionalimpact analysts ts warranted 211' *' sites. it should be understood that the pb is saa SC by the conforming actions proposed l. proposed conformmg regulations deal herem. The EPA engaged m and sec. :ot. as amended. 0: 206. sa Stat.1:42. with the exercise of the Commission a completed a NEPA process with full as amended.1:44.1:46 (4: U S C. 5841. 5a42. responsibility and authonty under the 5846). Section 275. 92 Stat. Jo:1. as amended consideration of environmental by Pub L 97-41$. 96 Stat. 2067 (4:U.S.C. Atomic Energy Act of 1954. solely as concerns. and for the purposes of this 2022). I 1 , A

48421 Federal Register / Vcl. 49. No. 228 / Maid:y Nw:mber 28. 1964 / Proposed Rules Secnon to.y also issued under Pub. L 96-take into account local or regional conditions. (that is, where the need for any specially act. esc.10.32 Stat. 2061 (42 U.S.C 5851). including geology, topography, hydrology, Secnon 4a31[s) also issued under sec.122. es and meteorology. The Commission may fici constructed retention structure is ehmmated). Stat. s3e (42 USC 2152). Section 4446 also that the proposed alternatives meet the The evaluation of alternative sites and disposal methods performed by mdl issued under sec.184. es Stat. 954. as Commission's requirements if the alternativu amended 142 USC 2254). Section ta71 also operators in support of their proposed tadings l will achieve a level of stabilization and &sposal program (provided m applicants' inued under sec. ter es Stat. 955 (42 USC containment of the sites concerned, and a i 2237). environmental reports) shall reflect eenous level of protection for pubbc health, safety, consideration of thie &sposal mode. In some ! For the purposes of sec. 223. es Stat 958, as and the enytronment from ra&ological and amended (42 USC 2273); il 40.3. 40.25(d)(1). nonte&ological hazards eseociated with the snatances. below grade &sposal may not be l (3). 40.35(e)4d). 40.41 (b) and (c) en 40.51 sites, which is equivalent to, to the extent the moet environmentally sound approach. , (r) and (c), and 40.63 s e inued under sec, practicable, or more strmsent than the level such as might be the case if a groundwater 161b. es Stat. en as amended. (42 U.S.C which would be achieved by the formation is relauvely close to the surface or 2201(b)): and il 40.25 (c) and (d)(3) and (4), requirementa of this Appendix and the not very wellisolated by overlying soils and , 40Je(c)(2). 40.35(e). 40.42. 40.61. 4a82. 4ae4 standards promulgated by the Environmental rock. Also, geologic and topepephic *! and 40.06 are issued under sec.181o. Se Stat. Protection Agency in 40 CFR Port 192. conditions might make full below grade s I Geo, as amended (42 USC 2201(o)). Subparte D and E- burial impracticable: for example. bedrock may be sufficiently near the surface that AppoMig WmeMoq 1. TechnicalCnteria blasting would be required to excavate a Cnterion 1--In selecting among alternative disposal pit at excessive cost. and more

2. Appendix A to Part 40 is revised to bl' al "

teihnge &sposal utes or judgmg the ' ilab!e. l re:d as follows: adequacy of existing tailmes estes. the re fuH o buna n A foll wmg site features. which will determine practicable. rhe size of retenuon structures, A 2 PM Mid hi a am m and stze and steepnese of slopes of l Relating to the Operation of Uraniuna e l Mills and the Disposition of Taihnge of

                                                            $'d ob                          g                        a ociated exposed embankments shall be                         '

associated contammants from man and the snininused by excavanon to the maxsmum Wastes Produced by the Extraction or envtronment for t.000 years thereafter. extent reasonably achievable or appropnate Coocentration of Source Material Fross without ongoing acuve maintenance shall be given the geologic and hydrologic condiuons j

    - racoe-4 r=artir f- we                                 -d-*
                                                                                                                     'd'nO'"d'"a"n Mv""a"e dis,osai Source Material Content

Remotenese from populated areas:

betroducess '"

program will provide reasonably equiva'ent u u o ved isolauon of the tailings from natural erosional Every applicant for a license to ponen and use source matertal in conjunction with uramum or thenum m Hins, or byproduct immobilization and isolation of contaminanta from groundwater sources: and
Potential for mammng erosion.

I'Q gg gg maten:1 at sites formeriy assocated with enteria shall be adhered to whether tadin8s d2sturbance. and &spersion by natural forces or wastes are disposed of above or below such nulling. is requ: red by the provistons of over the long term. grade. t 40.31[h) to include m a heense apphcanon The site selection process shall be an (al Upstnam rainfaU catchment anse must proposed specificabons relatmg to mdimg opumazation to the maximum extent be mmimized to decrease eromon potential operations and the dispommon of tadmss or reasonably achievable in terms of these wastes resulting from such mdhng actvides. and the size of the Probable Maximum Flood features. which could erode or wesh out sections of the T1us appendix estabhshes technical. tathngs disposal area. financial. ownership, and long-term site In the selection of &sposal sites. primary emphaste sha!! be given to isolauun of (b) Topographic featune should provide surveillance entens relatma to the siting. tailmgs or westes, a matter having long. term good wmd protection. operation. decontamnauon. decoamussiorung. aod reclamation of adla impacts, as opposed to consideranon only of (c) Embankment and cover slopes shall be short. term converuence or benefits, such as relatively flat after final stabdization to cnd tailings or waste systema and sites at muumns tron of transportation or land mmimize erosion potential and to provide wtuch such mdla and systema are located. As used in this appendix. the term as low as is acquisition costs. Whde isolacon of tailings conservaun factors of safety asunna long. reasonably achievable" has the same will be e funcuon of both site and engmeenna term stability. The broad obleenve should be design. overnding consideranon shall be to contour final slopes to grades which are as meanmg as in i 31t[c] cf to CR Part 20 of this ch pter. given to sitmg featuree given the long. term close as possible to those which would be nature of the taihngs hazards. provided if taihngs were disposed of below In srany cases. flexibdity is provided in the Tadmss shall be disposed ofin a manner cntena to allow achieving an optimum grade: this could. for example. lead to slopes that no active mamtenance is required to about to honzontal to 1 vertical (10h:1v) or t:thngs disposal program on a site-specific preserve conditions of the site. brsia. H: wever, in such cases the objecoves. less steep. In general slopes should not be Critenon 2-To avoid prohferation of sman steeper than about sh.tv. Where steeper tec.*uucal alternauves and concerns wluch waste disposal sites and thereby reduce must be taken into account in developmg a slopes are proposed. reasons why a slope perpetual survedlance obhgations. byproduct less steep than Sh:1v would be mpracncable t: lings program are idenufied. As provided matertal from in situ extracnon operauons, should be provided, and compensatmg by the provtsions of ( 40.3t(h) appbcations for heenses must clearly demonstrate how such as residues from solutloo evaporatton or factors and cond2hons which make such contammated control processes. and wastes slopes acceptable should be identified. the entria have been addressed. from small remote above ground extraction The specifications shall be developed (d) A full self. sustaining vegetative cover operations shall be disposed of at existmg shall be established or rock cover employed considenns the expected full capacity of largs mdl tadmas disposal sites: unless, talmy or waste systems and the hfetime of to reduce wmd and weter erosion to md! operations. Where later expansions of considenne the nature of the wastes. such as negi:gible levels. their volume and specific activtty, and the Where a full vegetative cover ta not likely systems or operanons may be hkely (for costs and environmentalimpacts of sumple. where large quantines of ore now to be self.sustamma due to chmatic or other transportmg the wastes to a large disposal condinons. such as in semi end and and marsmally uneconomical may be stockpiled), site such offsite disposalis demonstrated to the (mendability of the disposal system to regions, rock cover shall be employed on be impracticable or the advantages of onsite slopes of the impoundment system. The NRC accommodate increased capacities without banal clearly outweigh the benefits of degradation in long. term stabdity and other wdl consider relaxing this requirement for reducing the perpetual serveillanca perfo m+nce factors shall be evaluated. obligattons. extremely gentle slopes such as those which 1.icensees or applicants may propose they may exist on the top of the pile. Cntenen 3-The "pnme option" for The followmg factors shall be considered alternanves to the specific requirements in disposal of tailings is placement below grade, in establishing the final rock cover design to this Appendix. Die alternative proposals may either m mmes or speciaUy excas sted avoidpita displacement of rock particles by _ ~_ .

Federrl Regist:r / Vol. 49. No. 228 / Monday. November 26. 1984 / Proposed Rules 46E3 human end animal traffic or by nutural smis are to be rehed upon for seepave parameters such as permeabihty shall not be process and to preclude undercutting and contruL tests shall be en.3 ducted wiih determined on the basis oflabor. tory piping: representatise teihnes solutions and c!4y enalyses of semples alone. e sufGcient

Sh pe. sire. composition. und eradetion malertels to confirm that no significant amount ofImid testing te e. pump tesist shall of rock particles teaceptma beddine m.lenal detenorahon of premeabihty or stabmly be condui.ted to assure 4t.tual field prepertit s average particles site shall be at least cobble properties will occur with continous esposure are eJequatels understood lessing shall be size or greaterg of clay to teihngs solutions. Tests shall be run tunducted to .llow estim.una (. hems.sorphon
Rock cover thickness and zonma of for a sufDrient penod of time to rescal .ny attenuation properties of underlymg soil .nd particles by size. and effects if they are qmng to occur be some nnk.
Saeepness of undertymg slopes r.mses deterioration has been obscru d to
Location estent. quehty. capacity and indmdual rock fragments shall be dense. oi; cur rather rapidly after about nme monihs i;urrent uses of any grouridwater et end near sound, and resistant to ebrasion. end shall be of esposurcil. the site.

free from cracks, seems. and other defects * %U process designs which proude the Furthermore. steps shall be t ken dunng that would tend to unduly mcrease their manimum practicable recycle of solutions stockpihng of ore to mmimize penetrahon of destruction by water and frost actions Wesk, and conservation of water to reduce the nei radionuchdes into underlymg soils: suit.ble friable, or laminated agg eg.te sha!! not be input of hquid to the tailmgs impoundment. methods include hning and/or compachon of used.

Dewetenng of taihnes by process are storage areas.

Rock covenna of slopes m.y not be devices and/or m situ dreinage systems (At Cntenon tWa cases where waste required where top covers are very thick lon new sites. tailmes shall be dewatered by 4 - bvproduct melen41 as to be perrnenently the order of 10m or greaterJ. impoundment dramate system mssalted et the bottom of the disposed an earthen cover shall be placed slopes are very gentle ton the order of 10 h.1v impoundment to lower the phreatic surface over taihngs or westes at the end of mdl.ng or less). bulk cover m4terials have mherently and reduce the dnsms head for seepage. operations and. the waste disposal ares shau favorable erosion resistance char.ctenancs. unless tests show taihngs are not amenable be cliised in accordance with a design' and. there is neghgible dramage catchment to such a system. Where in-situ dewatenng is which shell provide reasonable assurance of area upstream of the pde and good wmd to be conducted. the impoundment bottom control of radionotpcal hazards tot til Be protecuon as descnbed in po.nts (4) and (bl shall be pruded to assure that the drums are effective for 1.0u0 years. to the extent of this Cntenon. at a low pomt. The drums shall he protected reasonably achievable. and. m any case. for Furthermore, all trnpoundmens surfaces by suitable filer metennis to assure that at least 200 years, and (ii) funit releases of shell be contoured to avoid areas of drems remain free runnme The dra.nese rudon-222 fmm uranium byproduct materials. concentrated surface runoff or abrupt or system shall also be adequately sized to and radon-220 from thonum byproduct sharp changes m slope gradant. In addihon assure good drainagel, matenals. to the atmosphere so es to not to rock cover on slopes, areas toward which

Neutrahzenon to promote immobilization , , , g surface runoff might be directed shall be well of souc substances.

protected with substanti41 roc.k cover (np Where groundwater impacts are occurrms p 3 r per dW rap). In addition to proudma for stabdity of at an eusung site due to seepage. action shall m s). In computmg required taihnga cover the impoundment sysiem itself. os er4U be taken to alleviate conditions that ledd to em sd _ g ,, stabsbty. erosion poteau4L and excessive seepage impacts and restore g geomorphology of surroundmg terram shall groundwater quehty.111e specific seepage be e heated to assure th4t there are not control and groundwater protection method. c nsidered. Direct gamma esposure fmm the ongoing or potennal processes. such as gully or combmanon of methods. to be used must tathnes or westes should be reduced to erosion. which would te d to impoundment be worked out on a site-specific basis. bachground levels. ne effects of any thm matabihty. Technical specifications shall be prepared to synthenc layn shan not be taken into (e) The impoondment shall not be located control nstalianon of seepage control account in determmrr g the calculated redon near a cap ble feuh that could cause a systems. A quehty assurance. testmg. and euheletion level. If non. soil matenals are maumum credible earthquake 1 rger than inspectiori program, which includes pmp sed as covu metenals. it must be that which the unpoundment could supervision by a quahfied enameer or demonstrated that such matenals will not reasonably be expected to withstand. As scienust. shall be estabhshed to assure the crack or degrade by differenhal settlement.

 . osed m this entenon. the term " capable fault" spooficanons are met.                            weathenng. or other mechanism, over long-has the same meertir's as defined in section       in support of a tailmgs disposal system       tum ume mtuvals.

Ilitg) of Appendia A cf to CFR 100 The term Near surface cowe metenals (i e , mthin proposal. the apphcant/ operator shall supply "maumum credible earthquake

means the information concernmg the following. the top three meters) shall not mclude waste earthquake which cause rt:e maumum
The chemical and radioactive or rock that contams elevated levels of vibratory g osmd motion based upon an charactenstics of the weste solutions. radium soils used for near surface cover evaluanon of earthquake potennal *The charactensnes of the underlying soil must be essennally the same. as far as considenng the regional and local geology and geoloinc formanons parucularly as they radioactivity is concerried. es that of dnd seismology and specific CharactenshCs will Control transport of Contammants and surroundmg surface soils This is to ensure of local subeurface matenal solunons. This shall melude detailed that surface redon eshalehon is not l'1 The impoundment, where feasible. informanon concernmq extent. thickness. segnificantly above background because of should be designed to mcorporate features uniformary. shape. and onentauon of ' h ' CC * * * "
I '"'II' wh:ch mil promote deposinon. For example. underlyms strata. Hydrauhe gradients and The design requirements in this critenon design features which promote depositon of conductmties of the vanous formanons shall for i nanity and control of redon releases sediment suspended m any runoff which be determmed. Sh4H apply to any pnion of a licensed and/

flows into the impoundment area might be This mformation shall be gathered from or disposal site unless such pornon contems utihred- the oblect of such a dergn feature bonngs and field survey methods tamen a e neentration of radium in land. aversaed would be to enhance the thickness of cover within the proposed impoundment area and user time m surroundmg areas where contammients ' The standard apohes to design Mannorm fur Cntenon 5-The followmq shell be might migrate to groundwaier. The r edon after ms' a.un of an sopropneeeiy cesis =d considered. mformation gathered on boreholes shall roter is not regered

Instalianon of bottom Imers (Where mc!ude both geologic and geophysicallogs m 'This everage sh.ll apph to the ent.re surf ce of synthenc Imers are used. a leaksee detection sufficient number and degree of e*ch d'eposet area over penods of ai leoni t year system shall be mstalled immediately below sophisucation to allow determmmg but short compared so 100 years itadon wdl come the Imer to ensure maior fadures are detected significant discontmuities. fractures. and fmm both uraneum Wuct movem end hun if they occur This is m addinon to the channeled deposits of high hydrauhc j groundwater snonitonns proerem conducted conductmty if field survey methods are 7,".,7,",*3 ,[o ,,$,N p",[,7o,',,$"n',

                                                                                                       , clo .re plan for each site The standard homeser        1 as provided m Cntenon 7. Where c!ay h rs        used. they should be m addition to and           appaes only to amasions from urarue b>prodact are proposed or relatively thm. in situ clay    cahfibrated with borehole loggmg Hydrologic meiene;s so the atmosphere l

i 1 I 1 1 4L ,

46424 Federal Register / Vcl. 49. N:. 218 / M:ndry. Nmmber 26, 1984 / Pr: posed Rules over areas of 100 square meters, which. as a needed corrective actions have been result of byproduct matenal does not exceed based on Comminion-approved cost identified and implemented. Au such estimates in a Commiuton-approved plan the background level by more than: (i) 5 cessations. correcuve acuans, and re-starts pococunes per gram (pCi/3) of radium-228. or, for-(1) Decontammation and shall be reported to the approprtate NRC decommissionmg of md! buddings and b in the case of thonum byproduct material. regional office as indicated in Cntenon 8A. in milhng site to levels wh ch would allow radium-228. averaged over the first 15 wnting. withm to days of the subsequent unrestncted use of these areas upon centimeters (cm) below the surface. and (ii) restart. decomnussiomng. and (2) the reclamation of 15 pCi/g of radium-228. or. in the case of To control dusting from ta lings, that thonum byproduct matenal radium-228. tailings and/or waste disposal areas in portion not covered by standing liquids shall (veraged over 15.cm thich layers more than be wetted or chetaically stabhzed to prevent accordance with technical entena delmented 15 cm below the surface. in Secuan I of this Appendix. The licensee or mmimize blowmg and dustma to the shall submit this plan in connmenon with an Untenon 7-At trase one f ull war prior to any major site construction. a preoperational maximum extent reasonably achievable. This environmental report that addresses the requirement may be relaxed if tailmgs are expected environmentalimpacts of the monittrms program shau be conducted to effectively sheltered from wmd. such as may

provide complete basehne data on a mdimg be the case where they are disposed of below mdimg operation. decommissionmg and c;u and its environs. Throughout the tailings reclamanon, and evaluates s grade and the tadmas surface is not expowd construction and operstmg phases of the mdL to wmd. Consideranon shall be given in alternanves for mingstma these impacts. The s an operational monitonns program shall be surety shall also cover the payment of the plannmg tadmgs 6sposal programs to charge for long term surverDance and control conducted to measure or evaluate compliance methods which would allow phased covenns "

with rpplicable standards and retalations: to and reclamation of tailmes unpoundments ,,qufred by Cntenon 10. In establishms evaluate performance of control systems and specific surety arrangements. the bcensee's smce this wdl help in controlhng particulate procedures: to evaluate environmental cost estimates shall take into account total and radon emissione dunna operation. To impacts of operanon: and to detect potential control dustmg from diffuse sources, such as costs that would be incurred if an long4erm effec's. independent contractor were hired to perfortr. tadmas and ore pads where automatic Cntenon S-Milhng operations shall be the decommissiotung and reclamation work. conducted so that all airborne effluent controls do r.ot apply, operators shall develop in order to avoid unnecessary duplication

                                            ,       wntten operatir:3 procedures specfying the releases ue reduced to levels as low as is                                                              and expense, the Commission may accept reasonably achievable.The pnmary means of methods of control which wdl be utdised.                      financial sureties that have been accomplishing this shall be by means of              Milling  operabons   producing   or involving thonum byproduct matenal shall be                    consohdated with finandal or surety emismon controla. Insutunonal controls, such                                                            arrangements established to meet conducted n such a manner as to proude es extendma the site boundary and exclusion reasonable suurance that the annual dose                   requirements of other Federal or state area, may be employed to ensure that offsite     equisalent does not exceed 25 milhrems to             agencies and/or local govermns bodies for cx;,oeurs hauts are met, but only after all                                                            such decommissioning. decontamination.

pracncable measures have been taken to the whole body. 73 mdhrema to the thynod, and 23 mdhreme to any other organ of any reclamanon and long-term site surve!Uance control enusnons at the source. member of the pubhc as a result of exposures and control provided such arrangementa are Natwithstan6tig the ex2stence ofin6ndaal to the planned dacharge of radioactive considered adequate to sausfy these dose stxdards. stnct control of emissions is matenals, redon-220 and its daughters requirements and that the pornon of the necess;ry to assure that population excepted, to the general environment. surety which covers the d commissiontag exposures are reduced to tne maximum extant reasonably achievable and to avoid Uranium and thonum byproduct matenals and reclamat on of the mik mdltadmss site shall be managed so as to conform to the and associated areas. and the long-term site contammation.The g eatest potential apphcable provisions of Title 40 of the Code fundmg charge is clearly idennEed and sources of offsite ra6 anon exposure [aside committed for use m accomplishing these of Federal Regulations. Part 440. " Ore Mming from redon exposurel are dustmg from dry ""' eurfaces d the tading 6sposal area not and Dressms Pomt Source Category: Effluent I"*"""" Limitations Guidelines and New Source **"u"be reviewed annuaUy by the Commission wi i covered by tadmgs solunon and emismons ' from yslilwcake drymg and packagma Performance Standards. Subpart C. Uratuum.to . assure that sufficieet funds would be avadable for completion of the reclamation operations. Durms operations and pnor to Radium. and Vana6um Ores Subcategory / , es codified on Jantary 1.1983. plan if the work had to be performed by an closure. radiauon doses from radon independent contractor.The amount of surety ] enussions from surface impoundments of Cntena 8A-Dady mspections of tadings or waste retention systema shall be liabihty should be adjusted to recosmze any urmium or thonum byproduct matenals shau be k pt as low as is practicable. cenducted by a quahfied engineer or scienust increases or decreases resultmg from and documented. The appropriate NRC annat on. changes in engmwrms plans. Checks shall be made andlogged hourly of regional office as m6cated in Appendix D of acevities performed, and any other cu param2ters le 3. ddferential pressures and to CDt Part 20. or the Director. Office of conditions effectmg costs. Regardless of scrubber wster flow rates) which determtse inspection and Enforcement. U.S. Nuclear whether reclamation is phased through the thnflictency of ye!!owcake stack emission control equipment operauon. It shall be Regulatory Commission. Washtngton. DC hfe of the operauon or takes place at the end 20555, shall be imme6ately notified of any of operations. an appropnate portion of determmed whether or not conditons are failure in a tadmga or weste retention system surety habihty shall be retamed untd final withm a ringe presenbed to ensure that the equipmmt is operstma consistently near which results in a release of tadegs or waste compliance with the reclamation plan to pe:h cfEciency: correctve acton shall be into unrestricted areas, and/or of any determined. This will yield a surety that is at , taken when performance is outside of unusual conditions (conditions not least sufficient at all times to cover the ents contemplated in the design of the retention of decommissiorung and reclamabon of the ] presenbed ranges. Effluent control devices system) which if not corrected could mdicate areas that are expected to be disturbed 1 shall be operauve at all umes dunng drying j ad p:ckrging operations and whenever air the potential or lead to failure of the system before the next bcense renewal. h term of is exhausung from the yellowcake stack. and result in a release of tadess or waste the surety rnecharusm must be open ended. mto unrestncted areas. utdess it can be demonstrated that another Drying cad packagmg operatione sha!! termtnata when controls are inoperative. E MnoncialCriteno arrangement would provide en equivalent When checka indicate the equipment is not level of assurance. This assuranca could be operstmg withm the range presenbed for Cntenon 9-Financial surety arrangements provided with a surety instrument which is shau be established by each mdl operator wntten for a spec Ged penod of use (e g S peah cfficitney. actions shall be taken to pnor to the commencement of operations to years) yet which must be automatically restore parameters to the presenbed range. assure that sufficient funds wdl be available renewed unless the surety notiflee the When this cannot be done without shutdown to car *y out the decontanunation and beneficiary (the Commismon or the State cnd rep:trs. dryms and packagmg operations decommissiorung of the mill and ate and for shau cease as soon as precucable. regulatory agency) and the pnncipal(the the reclamation of any tailings or waste licenm) some reasonable time (e 3 90 days) Operanons may not be re. started after disposal areas.'Ilie amount of funda to be pnor to the renewal date of their intention cessation cue to off. normal performance untd ensured by such surety arrangements shall be not to renew. In such a situation the sure

Federal Register / Vcl. 49. No. 228 / Monday, Nov1mber 26.19M / Propos:d Rulcs 46425 requirement still eusts and the licensee for the disposal of any such byproduct retamma ultimate custody of the see where would be required to submit an acceptable matenal. or is essential to ensure the lung taihngs. or wastes are stored to confirm the replacement surety within a bnef penod of term stability of such disposal site. shall be integrity of the stabihzed taihngs or maste nme to allow at least 60 days for the transferred to the United States or the State regulatory agency to collect. systems and to determine the need. if any. for m which such land is located. at the option of mamtenance and/or monitonng. Resuha of Proof of forfeiture must not be necessary to such State In view of the fact that physical the mspection shall be reported to the collect the surety so that m the event that the isolation must be the pnmary means oflong. Commission within tio daya followmg each hcensee could not provide an acceptable term control. and Cosernment land mspection. The Commission may require replacement surety within the required time, ownership is a desirable supplementary more frequent site inspections if. on the basis the surety shast be automatically collected measure. ownership of certam severable of a site. specific esaluanon. such a need pnor to its espiration. The conditions subsurface interests Ifor esample. mineral appears necessary due to the features of a desenbed abose would have to be clearly nghts) may be determined to be unnecessary stated on any surety instrument which is not particular taihngs or waste disposal system. to protect the pubhc health and safety and open-ended. and must be agreed to by all the environment. In any case. howes er. the Dated at Washington. DC. this 20th day of parties. Financial surety arrangements applicant / operator must demonstrate a g g genera;ly acceptable to the Commission are: sennus effort to obtain such subsurface For the Nuclear Regulatory Commission. tai Surety bonds: nghts. and must. in the event that certam Ibl Cash deposits. Samuel O ChdL. nghts cannot be obtained. provide Secretary of the Commission. (cf Certificates of deposit; (d) Deposits of gasernment sewnties. notification* m local pubhc land records of the p % %n ,% face that she !and is bems used for the ,, , ,, tel1rresocable letters or hnes of credit. and daposal of radioactive matenal and is II) Combmations of the abose or such other subject to either an NRC general or specific - types of arranaements as may be approsed hi.ense prohibitmg the disruption and by the Commission Howewr. self msurance. disturoance of the tailmgs. In some rare M UR PM M or any ar anaement which essentially cases. such as may occur with deep burial constautes seif msursnce le g., a contract where no onacing site surveillance will be W M Mgs RgWM% with a stare or Federal agency). wi!! not required. surface land ownership transfer Ground Water Protection and Othee satisfy the surety requirement since this requirements may be waised. For hcenses lasues provides no additional assurance other than issued before Nosember 8.1961. the that which already custs through hcense Commission may take into account the status Aossocn Nuclear Regulatory requirements. of the ownership of such land and interests Commission. Cntenen to-A mmimum charge of therein. and the abihty of a licensee to

      $150.00011978 dollars) to coser the costs of           transfer title and custody thereof to the         i Acnow: Advanced notice of proposed long-term surseillance shall be paid by each          United States or a State.                              Memakmg.

mill operator to the general treasury of the D If the Commission subsequent to title Uruted States or to an appropnate State sussasaan The Nuclear Regulatory agency pnor to the termmation of a uramum transfer determines that use of the surface or subsurface estates. or both. of the land Commission (NRC) is considering or thonum mill hcense. if site surveillance or centrol requirements transferred to the United States or to a State further amendments to its uranium mill will not endanper the pubhc health, safety, tailings regulations. The future at a particular site are determmed. on the basis of a sae.specinc evaluation. to be welfare. or enuronment. the Commission rulemakmg proceeding for which this may permit the use of the surface or segmficant!> greater than those specified m notice is issued is pnmanly intended to Cntenon 1:le g.. if fencing is determined to s bsurface estates. or both. of such land m a incorporate ground water protection manner consistent with the provisions be necessary). sanance m funding prouded in these entena If the Commission provisions and other requirements requirements may be specif.ed by the permits such use of such land. it will provide established bI the Environmental Commission. In any case. the total charge to the person who transferred such land with Protection Agency for similar hazardous cover the costs of long term surseillance sha!! the nght of first refusal with respect to such wastes into NRC regulations. This be such that. with an assumed 1 percent use of such land. action is necessary to make NRC annual real mterest rate. the collected funds E. Matenal and land transferred to the requirements similar to EPA standards will ymid interest m an amount suf5cient to United States or a State m accordance with as required by provisions of the coser me annual costs of site surseillance. this Cntenon shall be transfe* red witnout The total charse will be adtusted annually Uranium Mill Tailings Radiation Control pr'or to actual payment to recoenize inflation. cost to the United States or a State other than Act. admmistratne and legal costs mcurred in The mflation rate to be used is that indicated carrymq out such transfer. Dart The comment penod espires by the change m the Consumer Pnce Indes F The provisic is of this Part respactmg January 25.1985. Comments received published by the t* S. Department of Labor. transfer of ntle and custody to land and Bureau of Labor Statistics. after this date will be considered if it is

                                                      . taihngs and wastes shall not apply m the                 practical to do so but assurance of M. Saa and Byproduct MorerialOw nerstop                case     of lands held  m trust by the United Cntenon 15-                                        States for any Indian tnbe or landa owned by consideration may not be given except sucn Indian tnbe subsect to a restnction              as to comments received on or before A. These entena relatma to ownership of            agamst ahenat.on imposed by the United                  h d *

tailmss and meir disposal sites become effectne on Nosember 8.1961. and apply to States. In the case of such lands which are ADonFSSES: Mail comments to used for the disposal of by product matenal. Secretary. U.S. Nuclear Regulatory all hcenses terminated. issued. or renewed as defmed m this Part. the beensee shall after that date. Commission. Washington. DC 20555. enter m'o arrangements with the Commission B. Any uramum or tronum milhns hcense Attention: Docketmg and Service or taihngs hcanoe shall contain such terms as may be appropnate to assure the loeg. term surveillance of such lands by the United Branch, or deliver comments to Room and condaions as the Commission Staies. 1121.1717 H Street NW. % ashington, determmes necessary to assure that pnor to DC between 8.15 a.m. and 5:00 p.m. termination of the hcense. the hcensee will E LOT Term Sas Surved/once weekdays. comply with ownership requirements of this Cntenon 12-The final disposition of cntenon for sites used for taihngs disposal. f aihngs or wastes at milhng sites should be FOR PuermEn lesponssATION cOMTAcT: C. Title to the byproduct matenal heensed such that ongoms active maintenance is not Robert Fonner. Office of Executive legal under this Part and land. meludmg any necessary to preserve isolation. As a Director. telephone (301) 492-6692, or l mterests theron lother than land owned by mmimum. annual site inspections shall be Kitty S. Dragonette. Division of Waste the United States or by a Statel which is used conducted by the govemment agency Management. U.S. Nuclear Regulatory l J ,

46428 Fedecal Register / Vol. 49. No. 229 / Monday. Nr.vimb;r 26, 1984 / Propos:d Rul:s Commission. Washington. DC 20555, would then incorporate within NRC alternative proposals as routine telephone (301) 427-4300. regulations elements of EPA's SWDA licensing actions. supptassaaf7ANY WeFCAs4AT1ose:The requirements already imposed by EPA. Nuclear Regulatory Conr.miss:on has and establish any further requirements I. Background on the Ground Water g,,,, today proposed modifications to its necessary for the NRC to have SWDA. cxistmg null tailings regulations in comparable standards as called for by The SWDA requirements imposed by Appendix A to 10 CHL Part 40 for the Section 84 of the Atomic Energy Act of the EPA in its rule published October 7. purpose of conforming them to generally 1954, as amended. 1963 (48 FR 45926) were desenbed by cpplicable standards promulgsted by The Commission considered further the EPA in that Notice as follows; the Environmental Protection Agency revisions to Appendix A to conform it to " Consistent with the standards EPA (EPA) on September 30.1983 (see 48 Rt the physical stabihty aspects of the EPA issued under the SWDA for hazardous 45920: October 7.1983). His advance standard. but did not propose them. The wastes (47 FR 32274-32388. luly 28,1982) notice of proposed rulemaking (ANPRM) EPA standard requires that the final the standard for taibngs piles has two c.nnounces that the Commission is cover design pronde reasonable parts;(1) A 'pnmary' standard that considenng proposing further assurance of effective control "for one requires use of a Imer designed to modificanons toits regulations in to thousand years to the extent reasonably prevent migration of hazardous CFR Part 40. to satisfy certam provisions achievable. and in any case, for at least substances out of the impoundment, and cf the Uranium Mill Trailings Radiation 200 years." The EPA's numerical (2) a ' secondary' ground water Control Act of 1978 (UMTRCA), and longevity standard takes a different protection standard requiring. in effect, requests public comments on pertment approach to stability than do the NRC that any hazardous consutuents that issues and questions. requirements. In Appendix A. the NRC leak from the waste not be allowed to On October 7.1983, the EPA pubhshed estabbshed numerous presenptive 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 thorium in order to assure stability without or existing waste depositones. The byproduct matenal. ne standards were active memtenance for an indefinite secondary standard applies to new and developed by the EPA in a manner to penod of time following closure. The existing portions, the point of satisfy the provisions of secnon 275 of EPA rule sets a performance standard compliance being at the edge of the the Atomic Energy Act, as amended, for a limited uma penod. In addition. the waste impoundment.The specific that for nonradiologica! hazards, the preamble to the EPA sta idard and the hazardous substances and standards "* *

shall provide for the supporting environmentel evaluation concentrat2ons (i.e background levels) protection of human health and the indicate that the EPA ccasciously that define noncomphance with the Environment consistent with the cons'dered the acceptability of relying secondary standard at each site will be standards required under Subtitle C of on active maintenance to provide estabbshed for uranium mill tailings by the Solid Waste Disposal Act. as stability fo!!owmg closure. and did not NRC and Agreement States.The SWDA unended. which are applicable to such prohibit it. Rather. the EPA standard rules however. permit alternate h:zara." To achieve this goal the EPA requires that. for nonradiological concentration limits to be established included within its requirements hazards the need for active maintenance when t! ey will not pose "* * *a published October 7.1983. selected only be minimized.NRC's Appendix A substanaal present or potential hazard provisions frcm its regulatioca issued flatly prohibits any planned rebance on to human health or the environment" as under the Solid Waste Disposal Act active memtenance. long as the alternate concentration limit (SWDA) by cross referencmg the SWDA De Commission requests comments is not exceeded. The rule also allow provisions.These specific provisions are on whether it should delete or modify (sicl ' hazardous constituents' to be now in effect and the NRC is additional provisions of Appendix A exernpted from coverage by the permit considering undertaking a rulemaking including prescnpuve requirements for based on the same criterion. EPA which would clanfy its regulations by specific design features which may not determines the alternate concentration including within them those SWDA be necessary to meet the EPA standard. standard or exemption under the requirements selected by the EPA for The presenpove requirements ut SWDA. EPA's concurrence would be application to uranium and thonum mt!! question include those for mmimizir.g required under the proposed standards t:ilings. upstream drainage area. sitmg where for taihngs?

The rulemaking under consideration there is good wmd protection. relatively The EPA went on to further describe would also be intended to satisfy a flat slopes, mandatory vegetative or the primary standard. pnmanly requirement placed upon the NRC under rock cover. cobble size rock. high quality consisting of the liner design section 84 of the Atomic Energy Act of rock cover. and rock armormg. The requirements. and clanfy the secondary !?S4. as amended. to "* *

insure that Commimon also considered deletmg standard, by saymg-the management of any byproduct the prohibit on on reliance on active "

                                                                                                  "The prunary standard. 40 CFR matenal * *

is carned out in such mamtenance. modifying Cntenon 3 264.221. can usually be satisfied only by manner as conforms to general mandanng below Frade disposal as the usmg liner matenals (such as plastics) requirements estabhshed by the pnme option. and de!eting the that can retam all wastes. Exemptions Commission, with the concurrence of the requirement for background radium permitting use of other liner materials (EPA) Administrator, which are, to the concentrations in cover materials. Relief (such as clay) that may release water or maximum extent practicable. at least from these retamed provisions is small quantities of other substances cr.

comparable to requirements apphcable as atlable throush case-by-case in some cases, pernuttmg no liner may to the possession. transfer, and disposal proposals by licensees as noted in be granted only ti nusration of of similar hazardous material regulated proposed additions to the latroducuan hazardous constituents mio the ground by the Adrninistrator under the Solid of Appendix A of 10 CFR 40. The water or surface water weald be Waste Disposal Act.as amended."The prevented mdefinitely * * *." Commission seeks comment on whether

rulemaking under consideration. which this is suff.cient flexibility in view of the "Under these standards. a!! new is the primary subject of this ANFRM. Commission's intent to consider waste storage areas (whether new

Federal Register / Vol. 49. N2. 228 / M:nd:y, Novemb;r 26, 1984 / Propos;d Ruhs 46427 waste facilities or expansions of existmg and the following sections of the SWDA 1954, as amended. Consistent with that piles) are subject to the primary regulations: authonty and in accordance with standard-the liner requirement. If new i. Subpart F: section 84c. of that Act. the Commission wastes are added to an existing pile. 40 CFR 264.91 Required programs has the discreuon to review and however, the pile must comply with the 40 CFR 264.95 Pomt of compliance approve site specific alternatives to secondary standard-the hazardous 40 CFR 264.96 Compliance period standards promulgated by the consutuent concentration standards for 40 CFR 264.97 General ground water Commission and by the Admmistrator of health and environmental protection. monitanng requirements the Environmental Protection Agency. In Whether for a new or existmg pile. if the 40 CFR 2R98 Detection monitoring the exercise of this authonty, section seccndary standards are found not to be program satisfied and subsequent corrective 84c. does not require the Comnussion to 40 CFR 264.99 Compliance monitonng actions fail to achieve compliance in a program obtain the concurrence of the reasonable time, the operator must Administrator in any site specific ii. Subpart G: cease depositing waste on that pile." alternative which satisfies Commission 40 CFR 064.117 Post-closure care and requirements for the level of protection Also in its October 7.1983 Notice. the use cf property EPA stated that " EPA's responsibilities for public health, safety, and the iii. Subpart K: environment from radiological and t es h d s e "i 40 CFR :64.228 Monitonng and 7g A e t - nonradiological hazards at uranium mil!

      ,idopun of all or p of h follwg                 mspecti n( fimp undment liners). as tailings sites. As an example. the applicable                                Commission need not seek concurrence sections of the SWDA regu;ations:

1. Subpart F. 40 CFR 264.228 Closure and postclosure of the Admimstratorin case by-case care. as applicable."

40 CFR 264.92 Cround water protection determinations of attemative The above quotations from the EPA's concentrauon limits and delisting of standard October 7.1983 Notice serve to clarify hazardous constituents for specific sites. 40 CFR 264.93 Hazardous constituents the substance of EPA's standards, the 40 CFR 264.94 Concentration limit' It should be understood that the respective agency responsibilities under proposed conforming regulations deal (These three sections are modified and the UMTRCA. and the nature and scope "" * " " " " "' adopted as i 192.32(a)(2]) " " " of the rulemaking the NRC is herein 40 CFR :64.100 Corrective action considenng undertaking. The NRC has resp nsibility and authonty under the program At mic Energy Act of 1954, solely as reviewed the language quoted and, with (This section is modified and adopted as the exception of the tunsdictional regarda uramum mill tailings sites and I 19133) concerns discussed in the following have no broader connotation. ii. Subpart G: section. believes it to be factually The Commission believes that 40 CFR 64.111 Closure performance correct and a fair representation of the licensee proposals for alternatives can standard issues addressed. be an important and effective way to (This section is adopted as part of help deal with the problems associated

                                                  !!. Commission Authority and i 192.34b)(1))                           Resp nsibility                                with implementing the new EPA iii. Subpart K*.                                                                        standards. The Commission expects that
                                         .            Section 84c.of the Atomic Energy Act      it may requite several years to have its 40 CFR 264 21 Design and cperatmg requirements for surface                  states that: A Licensee may propose           conforming regulations fully in place. it alternatives to specific requirements         expects to use the flexibility provided (Th a se non i .odified and adopted as          o[i s on e is act Such                     U '" * "            "           " ' ' " "

i 192.3Ma)(1))" * *EE*** * # *

alternative proposals may take into

        .NRC's responsibilities under             account local or regional conditions,        licensees. Section 84c. provides NRC (MRCA are to implement EPA's                 including geology, topography.                dcient authonty to depehh standard and to ** *

insure that the hydrology and meteorology. The apr ve alternatives so long as the management of any byproduct Commission may treat such attematives Commission can make the required matenal * *
is carrmd out in sus h a as satisfying Commission requirements determination.

manner as * *

conforms to general if the Commission determines that such requirements established by the !!!. Issues for Public Comments attematives will achiese a level of stabilization and contamment of the The NRC requests public comment on Commission. with the concurrence of the~ sites concerned. and a level of Admmistrator, which are. to the maximum extent practicable at least the general question of how best to protection for public health, safety. and proceed to fulfill its responsibilities comparable to requirements applicable the environment from radiological and under the Atomic Energy Act with to the possession, transfer and disposal nonradiological hazards associated with respect to establishing SWDA-of similar hazardous matenal regulated such sites, which is equivalent to. to the comparable requirements for the by the Admmistrator under the SWDA. extent practicable. or more stnngent management of mill tailmgs. to the as amended / EPA will insure that NRC's than the level which would be achieved maximum extent practicable. In this regulations satisfy these admonitions by standards and requirements adopted through its concurrence role. Relevant context. comments are requested on and enforced by the Commission for the chottes and dectsions the NRC must SWDA regulations are those embedded same purpose and any final standards in Subparts A (except Section 264.3). B. make concern.ug issues and actions that promulgated by the Admmistrator of the are within its discretion. Comments on C. D. E. F. C. H. and K. Examples of Environmental Protection Agency in the basic value, validity, lawfulness, or areas which NRC must address in accordance with section 275.

dischargeg these responsibilities appropriateness of the EPA's SWDA The Commission histoncally has had involve functions under the six sections regulations, the SWDA or the 13tTRCA the authority and responsibility t listed immediately above which are regulate the activities of persons * * " ' 9 ""I' d' incorporated into these EPA standards, licensed under the Atomic Energy Act of I JL -

43433 Fedoest Register / ML 49. N . 228 / M:ndsy. Ntvember 28, 1984 / Proposed Rules A. Tentative bilC Approach for Ground B. Issues and Questions (8) How detailed should NRC's j WaterProtection regulations be, and what should and The NRC seeks public input with The NRC has developed a tentative respect to all aspects of the question of should not be required in areas such as requ rements its gul tion . as on r ec o d of c planning and development efforts Energy Act of1954. as amended. for ve ea s o e d conducted to date.This approach is protection of ground water. He NRC concentrations, minimum detection tentative and is made a part of this also seeks public comment with respect levels, statistical treatment of data and . public announcement so efforts spent in to determinations of statistically l providing public comment might ce pro d pu bc cor ent. ente significant differences, recordkeeping better guided. It involves the d de Ge b and reporting. quahty assurance. etc.? development of additions to NRC ]9 assen ra op mo s ffered or (9) To what extent must the NRC provide supporting environmental l regulations (either a block insert at the de). end of 10 CFR Part 40 or perhaps by (!) ul the SWDA comparable impact analyses considering the nature requirements to be placed in NRC of the requirements under consideration. creation of a new Part 41) which would contain the entire set of SWDA- regulations be explicitly restated to sortie of which have already been comparable requirements. prec.sely duphcate EPA's language, or insposed by EPA and are effective? If should substantive requirementa be supporting enviromental evaluations are The additions would be on;anized in paraphrased? needed for SWDA. comparable rule terms of design. operstmg. dosure, and changes except for the requirements (2) Should all of Subpart F be post closure requirements. and would to included? What should not be included 7 already imposed by the EPA. should the the fullest extent feasible. be a complete (3) What should be induded in a NRC continue to proceed with only a statement of the requirements without listmg of hazardous constituents for mill smale rulemakma 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. In in Appendix VIII to 40 CFR Part 2s1 (10)!s the flexibility cited in the this way, the requirements could be referenced in 40 CFR 284.93? Should proposed addition to the Introduction of stated in a self-contained. unified constituents not usually present or not Appendix A 10 CFR Part 40 sufficient or mannerin one place. Coverage would present above trace levels be included? should the NRC develop and support include at least the SWDA requirements What cntena should be applied to additional modifications to conform to clready imposed by EPA (40 CE decide what constituents should be the physical stability aspects of the EPA 284.92-94. 264.100. 254.111. and 264.221). included? standard? and appropnate portions of the SWDA (4) The NRC must establish SWDA-requirements mentioned by the EPA comparable requirements to the 1.ist of Subjecta in to CFR Part 40 expbcitly as " examples of areas which maximum extent practicable. In this Covernment contracts. Hazardous NRC mu4t address"(these include 40 context. what is practicable given matenal--transportation. Nuclear CR 264 9W. 264.117. 264.228. and current practice and the current state of matenals. Penalty. Reporting and 284.228). technology? recordkeepmg requirements. Source The rule =akmg bemg considered for (5) Should NRC retain the basic matenal. and Uranium. proposal by the NRC may include most sequence embodied in Subpart F where Dated at washmaton. DC. ttus 2mh day of of Subpart F (40 CFR 254.90-100), due to licensees who detect ground water November 1964. the close relationship and contammation progress through a Fce the Nac! ear Regulatory Commission. interdependency of the separate graduated scale of action. from Samuel l. Chilk. provts: ens, and because all but 40 CFR detection monitonng. through 5,er,cery eg, c;mnussion. 264.90. "Applicabahty." is either imposed compliance momtonng. and on to % m.m , or mentioned as an exampie by the EPA. }[ect, action. thsi , an time o ce,, mm The remamder of the EPA s SWDA regulations. mcluding Subpart A (except plans and programs are being 5 268.3). B. C. D. E. F. G. H. and K would developed. reviewed. and implemented? 10 CFR Parta 50 and 55 be reviewed in developing a proposal to Would it be advisable, practicable or determme wh2ch of those requtrements appropnate to require. for example, that Operator's Ucenaea and Conforming would need to be incorporated in NRC all NRC licensees have approved Amendment regulations to establish NRC compliance momtonng programs that requ:rements which are to the maximum are automatically activated and sonwen Nuclear Regulatory implemented when needed? Commission. extent practicable. at least comparable to the EPA a SWDA requirements for (6) Should the basic SWDA scheme actoN: Proposed rule. for the tmung and duration of a similar hazardous matenal. In developics this proposal the NRC " compliance" period a " closure" period. sunsasann The Nuclear Regulatory and a " post closure care" period be Commission is proposing to amend its would distmguish between substantive maintamed? What modifications. regulations to (1) clanfy the regulations requirements and EPA's procedural deletions, additions should be made? p:rmittmg requirements because it does for the issuance oflicenses to operators (?) To what extent. how, and uader and senior operators;(2) revise the not believe the UMGCA mandate what conditions should leak detection requirements and scope of wntten requires the NRC to adopt anf portion of systems under single-liner exammations and operstmg tests for the procedural permittmg aspects of impoundments be allowed to fulfill the EPA's regulatwns. The NRC's operators and senior operators. requirements for a detection monitonng includmg a requirement for a simulation estabitshed procedures for licensing. program that otherwise requires a inspection, and enforcement would be facility; (3) codify procedures for the monitanng wellin the uppermost administration of requalification used with respect to implementation. aquifer? examinations: and (4) describe the form 1

                                                                                                            ,                           i i

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[7590-01] NUCLEAR REGULATORY COMMISSION 10 CFR PARTS 40 and 150 Uranium Mill Tailings Regulations: Conforming NRC Requirements to EPA Standards AGENCY: Nuclear Regulatory Commission. ACTION: Final rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is issuing amendments to its regulations governing the disposal of uranium mill tailings. These changes conform existing NRC regulations to the regulations published by the Environmental Protection Agency (EPA) for the protection of the environment from these wastes. The changes also incorporate some of the EPA requirements. Commission plans for the remainder of the EPA require-ments dealing with ground-water protection was the subject of a separate rulemaking notice. This action is being taken to comply with the
legislative mandate set out in the Uranium Mill Tailings Radiation Control Act (UMTRCA) and the NRC Authorization Act for FY 1983.

EFFECTIVE DATE: (30 days after publication). ADDRESSES: Comments received on the proposed rule as well as the

; Regulatory Impact Analysis and the Final Environmental Impact Statement i

prepared by EPA and NUREG-0706 prepared by NRC may be examined at the Commission's Public Docket Room, 1717 H Street NW., Washington, DC between 8:15 a.m. and 5:00 p.m. weekdays. 1 y

[7590-01] FOR FURTHER INFORMATION CONTACT: Robert Fonner, Office of the Executive Legal Director, telephone (301) 492-8692, or Kitty S. Dragonette, 1 Division of Waste Management, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301)427-4300. SUPPLEMENTARY INFORMATION: Introduction and Backaround The Nuclear Regulatory Commission (NRC) is issuing modifications to its regulations for the purpose of conforming them to generally applicable requirements promulgated by the Environmental Protection Agency (EPA). These EPA requirements, contained in Subparts D and E of 40 CFR Part 192 (48 FR 45926; October 7, 1983), are applicable to the management of uranium and thorium byproduct material and became effective for NRC and Agreement State licensees and license applicants on December 6, 1983. This action modifies previously existing regulations of the Commission to conform them to the EPA requirements and incorporates some of the EPA requirements into the Commission's regulations. The affected Commission regulations are contained in Appendix A to 10 CFR Part 40, which was promulgated in final form on October 3, 1980 (45 FR 65521). Proposed changes were published on November 26, 1984 (49 FR 46418). The comment period originally expired on January 10, 1985 but was extended until February 10, 1985 (50 FR 2293, January 16, 1985). The action that the Commission will take with respect to the remainder of the EPA requirements, primarily those dealing with ground-water protection, was the subject of an Advanced Notice of Proposed Rulemaking (ANPRM) which requested comment on that subject (49 FR 46425, November 26, 1984). Under section 18(a) of Pub. L. 97-415, the Nuclear 2

[7590-01] Regulatory Commission Authorization Act for fiscal years 1982 and 1983, 1 the Commission was directed to conform its regulations to EPA's with notice and opportunity for public comment. Overview of Comments on Proposed Rule Changes Twenty-four commenters responded with 26 sets of comments. Six environmental groups, seven states, two Federal agencies, seven industry representatives, one pro-energy (pro-nuclear) group and one individual responded. Comments were offered on both general issues and the specific changes in the proposed rule notice and reflected diverse views. The general I issues addressed the Commission Authority and Responsibility Statement, procedural and jurisdictional issues, the scope of the rulemaking, the validity and merits of the EPA standard, and other miscellaneous topics. Commenters on the Commission Authority and Responsibility Statement were divided. The environmental groups and EPA disagreed with all or part of the statement. Industry advocated an alternate approach relying on general agency roles. One state supported the flexibility in the Statement. Procedural and jurisdictional issues raised included industry challenging any conforming action to an EPA standard that is improper on jurisdictional grounds and delaying conforming action until the Tenth Circuit cases are settled. Three commenters challenged the legality of not meeting the six month date to conform and conforming in two steps. Comments on the scope of the first step rulemaking included general views that NRC should undertake completely new rulemaking and a number of specific additional changes. One environmental group and industry urged 3

[7590-01] NRC to undertake new rulemaking to replace both EPA and NRC rules. Addi-tional conforming changes suggested included tailings cover specifica-tions, reliance on active maintenance, and changes based on the earlier suspension of portions of Appendix A and initial staff recommendations to l the Commission. All categories of commenters suggested additional changes to 10 CFR 40, Appendix A not related to conforming to the EPA standard. Virtually all categories of commenters expressed dissatisfaction with the EPA standards in 40 CFR 192 as either too lax or too stringent. A number of other miscellaneous topics were raised inclJding Agreement State implementation of the alternatives provistor which tracks the language in section 84c of the AEA. Comments on the addition of the flexibility provisions of section 84c of the Atomic Energy Act (AEA) to the Introduction of Appendix A generally did not take issue with the addition itself since it paraphrased the law. States and environmental groups expressed concerns about implementation. Some of the industry commenters favored extensive supplemental rulemaking to reduce the burden on licensees to develop alternatives. Comments on proposed changes to Criterion 1 on the time frame for protection reflected confusion on goals or objectives versus requirements and disagreement on what the times and reliance on active maintenance should be. State and environmental comments urged times greater than the 1,000 year EPA design standard on cover longevity and no reliance on maintenance. Industry favored a 200 year goal and reliance on maintenance. Comments on the proposed change in Criterion 4 to replace " maximum possible flood" with " Probable Maximum Flood" reflected divergent views on the appropriate design flood to be used in analyses. Environmental 4 { . ..

[7590-01) commenters favored maximum conservatism and industry advocated less conservative assumptions than either the existing or proposed language. Proposed changes to Criteria 1, 3, and 5 were all intended to reflect that the EPA standard starts from a premise that no seepage from new or expanded impoundments or degradation of ground water are allowed and that all ground water is to be protected regardless of quality or use category. Industry strongly opposed protecting non-usable ground water, recommended deferring all ground-water changes, and argued that the EPA ground-water standards are invalid because they fail the Congressional test of comparability to standards for wastes of similar hazard (for example, mining wastes). Commenters objected to incorporation of the EPA longevity and radon design standards into Criterion 6 in general and opposed specific aspects of the proposed changes. Many of the arguments were directed against the EPA standard as being too lax to adequately protect health and the envi-ronment or more stringent than warranted by the risks. Several commenters urged NRC to keep its more restrictive radon limit and 3-meter minimum cover. Industry opposed including any EPA standards for thorium byproduct material. Several state and environmental commenters objected to tha incorpora-tion of the EPA footnote qualifying the longevity and radon standard as a design standard not requiring confirmatory monitoring. Averaging provi-sions and disregard of the radon from cover materials were also of concern 4 on Criterion 6 changes. Commenters questioned implementation aspects of the Criterion 8 change to add the as low as practicable goals for radon releases during operations. One commenter argued for the current terminology reflected in 10 CFR Part 20 5

[7590-01] for keeping releases as low as reasonably achievable (ALARA) as the true EPA intent. A staff analysis of all the comments received is available in the NRC's Public Document Room (POR). The following discussion summarizes and responds to all comments of major or generic significance and to all comments that prompted additional rule changes. Commission Authority and Responsibility Statement The notice included a statement on " Commission Authority and Respon-sibility." The statement summarized the Commission's policy on the exercise of its responsibility and authority for mill tailings, including the authority to approve site specific alternatives proposed by licensees under section 84c of the AEA. Comments. Commentars were divided on this issue. The environmental groups and EPA disagreed with the statement. Industry advocated an alternate approach. In industry's view, reliance on the basic require-ments of UMTRCA with respect to the jurisdiction of the agencies would be a stronger legal position and eliminate the need to rely on section.84c. One State supported the statement and the need for NRC and Agreement States to review and approve site specific alternatives to standards without EPA concurrence. EPA disagreed with NRC's interpretation of section 84t:. EPA stated "Section 84c does not confer on NRC authority to approve or employ alter-native standards or to substitute its judgment for EPA's regarding the level of protection necessary to protect public health and the environment. Rather it authorizes NRC to approve or employ licensee-proposed alter-natives to NRC's own general implementina requirements . . ." Further, 6

[7590-01] EPA argued that its standard that requires EPA approval of site specific alternative concentration limits is within its authority, not NRC's under section 84c. In EPA's view, NRC must also establish specific require-ments before it can consider alternatives to them. The environmental groups were in basic agreement with EPA. Response. The Commission conducted an independent review of UMTRCA and the legislative history surrounding this issue. The Commission reaffirmed that it is authorized under section 84c of the AEA to grant exemptions from EPA's standards without obtaining EPA's concurrence. The basis for this conclusion covers four points: First is the belief that " specific Commission requirements" can be adopted without a rulemaking proceeding. Section 84a(2) requires the Commission to ensure that tailings are managed in conformance with EPA's standards. Section 84a(2) creates a statutory obligation on the Commis-sien to enforce EPA's standards independent of whether the Commission adopts regulations which would clarify how the Commission would enforce those standards. Second, section 84c expli;itly states that the NRC may approve alter-natives which, g the extent practicable,.would achieve safety levels equivalent to those which would be achieved by compliance with NRC's , requirements and EPA's standards. Thus, the NRC is authorized to exercise judgment on the level of protection of public health, safety and the envi-ronment achieved by a proposed alternative. Third, UMTRCA does not use the phrase " implementing requirements." Section 84c refers to only " specific requirements adopted and enforced by the Commission." This phrase is clearly intended to include all require-ments adopted by the Commission to regulate mill tailings. The source of 7 l 1 i

[7590-01] the adopted requirements is immaterial to the statutory scheme and may include EPA's detailed standards. Finally, EPA's comment does not effectively respond to the Commis-sion's argument that EPA site specific concurrence in exemptions con-tradicts the prohibition on EPA's issuance of a permit in section 275b.(2) of the AEA. Comments questioning NRC's motives or intent are offset by the find-ings required of the Commission in section 84c in order to exercise the flexibility to approve alternatives. Assertion of legal right does not equate to an intent to abuse a right. The AMC jurisdiction issue is addressed in the following section. The statement an " Commission Authority and Responsibility" is repeated i in this notice without change to reaffirm the Commission's position, t Procedural and Jurisdictional Issues Comment. The American Mining Congress (AMC) presented extensive legal arguments on the EPA /NRC jurisdictional issue. The AMC comments focused on the following legal points: (1) Since its ratification of Reorganiza-tion Plan No. 3 of 1970, consistent Congressional policy has been to limit EPA standard setting authority for NRC licensed facilities to " generally applicable standards," meaning standards that are applicable outside site boundaries and that impose no site specific design, engineering or manage-ment requirements; (2) Congress, in UMTRCA, adopted the division of jurisdiction between EPA and NRC first established in the 1970 Reorganiza-tion Plan; and (3) EPA's standards are nct " generally applicable standards" and are therefore beyond the jurisdiction of EPA. Consee,uently, the EPA 8

[7590-01] standards are a " mere nullity" of no legal force or effect and NRC is not legally bound to conform to the standards. Response. As noted earlier, the Commission conducted an independent review of UMTRCA and its legislative history. The Commission concluded that EPA generally acted within its jurisdiction and found the AMC argu-ments flawed. The following points summarize the Commission's findings:

1. Before UMTRCA, EPA, not NRC, had primary authority over both the radiological and non-radiological impacts from uranium mill tailings;; 2. During Congressional deliberations over UMTRCA, NRC attempted to reduce substantially EPA's authority over radiological hazards of mill tailings by limiting it to EPA's " traditional" authority under Reorganiza-tion Plan No. 3, i.e., authority to promulgate only generally applicable, non-site specific radiological standards, applicable only outside the
boundaries of the tailings sites;: 3. EPA opposed the NRC's attempt to trant.fer to itself EPA's author-ity to regulate mill tailings. EPA'seffortt,w{trepartiallysuccessful and resulted in a Congressional compruniise which precluded EPA from prom-ulgating site specific standards but which did not restrict EFA to standards applicable only outside site boundaries. EPA was also given concurrence authority over dRC regulations for controlling non-radiological hazards.; 4. Except for one instance, EPA acted within its jurisdiction under UMTRCA in setting environmental standards for managing radioactive i

emissions and hazardous chemical wastes from uranium mill tailings; and

5. EPA exceeded its jurisdiction by stating that its concurrence would be required before the NRC could grant site specific case-by-case exemptions from NRC regulations for implementing EPA's standards. The 9

[7590-01] Commission believes that such a concurrence role by EPA also contradicts the 1983 amendment to UMTRCA which added section 84c to the AEA. Comments. Environmental groups and EPA commented on the legslity of not meeting the six-month Congressional mandate to conform by April 1, 1984 and conforming in two steps. Commenters asserted that NRC's action is illegal, that it does not meet the explicit intent of UMTRCA, and that NRC should conform to the ground-water standards in 40 CFR 192 immediately. Concern that a four year rulemaking on ground water delays compliance with EPA's ground-water requirements was expressed. Commenters objected to NRC's position that conforming to EPA's ground-water standards should be combined with developing a rule that fully meets the mandate in sec- ! tion 84a(3) to have general requirements that are comparable to EPA's i requirements for similar materials regulated under the Solid Waste Disposal Act. EPA argued that the EPA standards in 40 CFR 192 already meet this requirement to be comparable. Response. While it is true that section 275f(3) of the AEA required the NRC to conform its tailings regulations to EPA's tailings standards a by April 30, 1984, immediate conformance is not necessary because the NRC is applying appropriate aspects of 40 CFR 192 in individual licensing actions. Section 275d requires the NRC to implement and enforce the EPA standards during the conduct of NRC licensing activities. The Commis-sion's general obligations under section 275d may be implemented in whole or in part by the NRC's conformed regulations promulgated in accordance with section 275f(3). In the absence of revised regulations under sec-tion 275f(3), the Commission must apply EPA's standards on a case-by-case basis as determined to be appropriate in each licensing action. 10

[7590-01] The NRC's responsibility to implement EPA's standards in individual licensing actions, independent of whether the NRC's regulations are conformed to those standards, explains why Congress did not attach any consequences to any NRC failure to meet the deadline in section 275f(3). Therefore, until the NRC conforms its regulations, the public health, safety and the environment will be protected by the NRC's case-by-case application of EPA's standards. The scope and timing of the second-step rulemaking is still under consideration. Comments on the ANPRM are being analyzed. x simple rule change to incorporate the specific ground water protection provisions of 40 CFR 192 is one option being considered. Comment. One environmental group and industry urged that NRC delay conforming action until the legal challenges to the EPA standard in the Tenth Circuit are settled. Response. EPA's rules, where consistent with their jurisdiction, must be deemed valid unless and until modified by a court. EPA contonds that its rules were issued in accordance with the statutory authority and requirements applicable to those rules. Therefore, EPA contends that its rules have the force of law. Because the Commission does not sit as a reviewing court, it must accept EPA's rules as lawful, unless they are based on an interpretation of statutory authority addressed to the Commission, e.g., section 84c. Thus, absent a judicial decision to the contrary, the Commission must exercise its statutory responsibilities by implementing EPA's standards which do not conflict with the Commission's interpretation of its own statutory authority. 1 11

[7590-01] Scope of Rulemaking Comments. Commenters offered a wide range of views on the scope of the rulemaking. NRC was urged to undertake in. dependent new rulemaking. An environmental group advocated complete revision of 10 CFR Part 40, Appendix A, as issued in October, 1980 to provide more protection from radon. Industry argued that NRC must undertake a completely new independent rulemaking to replace both the EPA and NRC rules. Industry asserted that EPA's standards are not adequately supported by analysis relating ccsts and risks and are outside EPA's jurisdiction and that NRC has provided no analysis establishing that Appendix A of Part 40 require-ments are reasonably related in terms of cost, risks, and benefits. A key point in industry arguments was the 1983 (Pub.L. 97-415) addition to section 84a(1) of the AEA requiring the Commission to insure that the management of byproduct material takes " . . . into account the risk to the public health, safety, and the environment, with due consideration of the economic costs and such other factors as the Commission determines to be appropriate." The industry arguments imply that this addition mandates a total reconsideration and revision of NRC rules. Industry also noted the depressed econcmic state of the industry and early stabilization plans that have resulted since the 1980 rule. Response. To the extent that commenters have challenged EPA's compliance with section 84a(1), that challenge is not properly before the Commission. As explained above, except for matters of interpretation of the Commission's statutory authority, the Commission must take as legally binding EPA's regulations, unless and until they are modified by a court. As for the contention that the 1980 regulations did not properly take into account risks and economic costs, the legislative history of 12

[7590-01] section 84a(1) clearly showed that Congress had no intention of requiring the Commission to completely redo the rulemaking on uranium mill tailings. Section 84a(1) of the Atomic Energy Act of 1954 was amended to explicitly authorize the Commission to consider the risk to public health, safety and the environment with due consideration of the economic costs of its requirements. In explaining this amendment, the Conference Report explicitly eschewed any attempt to require cost-benefit analysis for the 1980 regulations. The Conferees stated: The conferees do not intend and specifically oppose by this language affecting any pending litigation or appeal or judicial decisions based on the fundamental missions or responsibilities of the agencies. The conferees note tha*. this language reflects accurately the current regulatory approach of the agencies. The language agreed to by the conferees should not result in any delays in establishment of remedial action standards. EPA, for example, has already advised the conferees that it is considering costs in formulating its inactive site require-ments. In addition, the NRC has testified before Congress that it, too, took costs into account in promulaating its Uranium Mill Licensino Requirements. Moreover, in adopting the language, the conferees intend neither to divert EPA and NRC from their principal focus on protecting the public health and safety nor to require that the agencies engage in cost-benefit analysis or optimization. T5e conferees are of the view that the economic and environmental costs associated with standards and requirements established by the agencies should bear a reasonable relationship to the benefits expected to be derived. This recognition is consistent with the 13

[7590-01] accepted approach to establishing radiation protection standards, and reflects the view of the conferees that, in promulgating such general environmental standards and regulations, EPA and NRC should exercise their best independent technical judgment in making such a determination. At all times, the conferees fully intend that EPA and NRC recognize as their paramount responsibility, protection of the public health and safety and the environment. [H.R. Rep. No. 97-884 (Conference Report), 97th Cong., 2d Sess. 471 (1982) (emphasis supplied).] , Moreover, it would be duplicative for the NRC to consider again risks i and costs as part of the process of conforming its requirements to EPA's standards. EPA has already taken risks and costs into account in formulating its standards under section 275b(1). Recognizing that EPA would take these factors into account, the statute explicitly does not require the NRC to consider the same factors as part of the conformance process, see section 275f(3). This statutory provision, by its simplicity, just emphasizes Congress' intent to make the conformance procedure as straightforward an adoption of the EPA standards as possible. The Commission views the mandate in section 84a(1) as applying to all aspects of its uranium recovery program. Thus section 84a(1) should be emphasized in Appendix A to make it clear that the NRC will in fact consider risks and economic costs and site specific needs in general. I The insert to the Introduction to Appendix A that paraphrases sec- ~ tion 84a(1) will explicitly emphasize this point. 14

[7590-01] The Commission also believes that implementation of " practicable" should be consistent with the intent of section 84a(1) and with the "as low as reasonably achievable" (ALARA) Commission policy stated in i 10 CFR Part 20. This point is clarified by paraphrasing 10 CFR 20.1(c) in an addition to the Introduction to Appendix A. Industry comments on the depressed state of the industry are valid and licensees are faced with early reclamation. However, the Commission believes that this situation only emphasizes the site specific decisions needed and does not support the need for new rulemaking. Comments. All categories of commenters advocated specific sugges-tions to expand the scope of the proposed rulemaking. Commenters j generally fell into three categories - those advocating: (1) additional changes needed to conform to the EPA standards, (2) additional changes that would make 10 CFR Part 40 more explicit or more protective of public health, safety, and environment but that are not directly related to conforming to the EPA standards, and (3) additional changes that would make Part 40 less restrictive or conform to the collective intent of Congress expressed in various legislation and hearing records rather than the EPA standards. Comments in the first category were considered within i the scope of this rulemaking. Comments in'the latter two categories will i be considered along with comments received on the accompanying ANPRM. One commenter suggested that the Commission require that design calculations for covers incorporate a design margin to account explicitly for changes in moisture content and porosity, external erosional forces, and internal chemical reactions in order to meet the reasonable assurance provision of the EPA radon and longevity standard over the long term. 15

[7590-011 Response. The factors identified are important to consider in evaluating expecte'i cover performance. Hosever, these factors are very site specific an'd represeit a level of detail that NRC normally relegates to guidance or procedural documents. The design margin recommended is essentially applied in the staff's use of conservative material param-eters in the site specific evaluation of the design of soil and rock covers. -

                                                  -               4-     .'

Comment. NRC,was urged to add an active monitoring prog *3d for tailings stability"to the commission's ruiss. . Response. Criterion 12 of the Commission's rules has a rainimum requirementforannualinspectionsbythecustodialgovernee.kasencyto confirm;the integrity of stabilization and the need for'any maintenance. Comment. Industry recommended a numb'e$ of changes based on tfie-Commission's earlier suspension action. The recommended changes and k rationale fLr action were 'es entially the same as presented in the , s . _ suspension notices. Examples include deletion of below grade or equivalent as the pri:ne option in Criterion 3 and deletion of radium content restr!ctions on cover materials in ' Criterion 6.' s Response. The purpose of this action is to pra;36,lgate non-discretionary conforming changes in order to eliminate Conflicts and inconsist(ncies, add imposed standards and Congressionsl' direction, and make minor editorial or clarifying changes. Industry cessnenti, were 2 mainly statemertr 6; claims based on what "may not be ensejt*Ec" and would require extensive new rulemaking and are thus considered cutside the scope of the present action. . y 16 . .

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(7590-01] Comments on 40 CFR 192 Comment.. Virtually all categuries of commenters offered comments on the validity and merits of the EPA standard. The majority reflected dissatisfaction. Response. As noted in the accompanying ANPRM (49 FR 46427), the Commission must focus on choices and decisions it must make on actions within its discretion. Until or unless court action sets aside the EPA standards, they are binding on NRC snd Agreement State licensees. NRC licensees are faced with two sets of effective regulations that contain conflicting or inconsistent requirements. Under law, NRC must implement and enforce both. Consistent with the Commission Authority and Responsibility state-ment, the Commission will not fenlement and enforce 40 CFR 192.32(a)(2)(iv), which requires EPA's concurrence on site-specific NRC alternatives to other requirements under Part 192, because that paragraph is contrary to the Commission's statutory aathority under section 84c. The Commission believes that removing conflicts and inconsistencies in the two sets of regulations and using site specific alternative authority to deal with occasional site specific problems represents the best regulatory approach. Thus, comments on the lawfulness, merits, and Jalue of the EPA standards were considered outside the scope of this action and were nat a factor in developing this final rule. Other Comment. One State questioned how the process of dealing with alter-natives using the type of flexibility afforded by section 84c of the AEA would work in Agreement States. 17

   .,                                                                      [7590-01]

Response. Section 19 of Pub.L 97-415, the NRC Authorization Act for fiscal years 1982 and 1983, added the following option to section 274o of the AEA for Agreement States: ". . . the State may adopt alternatives _(including, where appropriate, site-specific alternatives) to the require-ments adopted and enforced by the Commission for the same purpose if, after notice and opportunity for public hearing, the Commission deter-mines that such alternatives will achieve a level of stabilization and containment of the sites concerned, and a level of protection for public health, safety and the environment from radiological and non-radiological hazards associated with such. sites, which is equivalent to, to the extent practicable, or more stringent than the level which would be achieved by standards and requirements adopted and enforced by the Commission for the same purpose and any final standards promulgated by the Administrator.of the Environmental Protection Agency in accordance with section 275. Such alternative State requirements may take into account local or regional conditions, including geology, topography, hydrology and meteorology." The Commission must determine that alternative standards adopted by the State achieve the required levels of protection. Further, the Commis-sion must notice the alternatives and provide an opportunity to request public hearing. This additional flexibility to adopt generic or site speciffc standards is available to the State regardless of the status of the State's regulations. The comment does point out that 10 CFR 150.31 should be amended to add the option quoted above. Including the language in Part 150 is not legally required for the State to exercise the option, but the ar%ndment te Part 150 would clarify the situation. 18

[7590-01] No comments were received on the Regulatory Flexibility Certifica-tion or Paperwork Reduction Act Statement in the notice. No specific comments were received on the NEPA discussion under Impact of the Amendments. COMMENTS ON SPECIFIC PROPOSED MODIFICATIONS TO APPENDIX A 10 CFR 40 The proposed rule preamble listed the specific modifications and rationale for each change. The list followed the order of 10 CFR 40, Appendix A. In the following analysis, each of the modifications are summarized and addressed. The numbering system from the propused rule preamble is used. Introduction Modification 1. (a). Typographical error and no comments were received. Modification 1.(b). This proposed change deleted an outdated infor-mation submittal requirement associated with the 1980 publication of Appendix A. Comment. One commenter expressed concern that the deletion would mean that detailed information on licensees' programs showing how they meet the criteria in Appendix A would not be required. Response. Licensee compliance with Appendix A and the EPA standards is being handled and documented in the routine course of licensing and enforcement activities. A specific or separate submittal is not needed and would represent an unwarranted burden on licensees. 19

[7590-01] Modification 1.(c). This change would add a paraphrase of the pro-visions of section 84c of the AEA. The language provides applicants and licensees the opportunity to propose alternatives to the specific require-ments of Appendix A. Comments. Comments on the addition of the flexibility provisions of section 84c to the Introduction generally did not take issue with the addition itself since it paraphrased the law. States and environmental groups expressed concerns about implementation. Some of the industry commenters favored' extensive supplemental rulemaking to reduce the burden i on licensees to develop alternatives. Response. The Commission agrees that additional guidance on how to implement the section 84c flexibility may be needed. Generic guidance is difficult to prepare absent experience with specific proposals. NRC has used this flexibility only once. In addition, detailed implementation guidance is normally not included in the Commission's rules. It is developed in more flexible guidance documents. Criterion 1 Modificatien 2.(a). This change would delete, " thousands of years," and add the 1,000 year time frame in the EPA design standard. Editorial errors confused the specifics of this modification. The first paragraph of proposed modified Criterion 1 should have read: "In selecting among alternative tailings disposal sites or judging the adequacy of existing tailings sites, the following site features which will determine the extent to which a program meets the broad objective of isolating the tailings and associated contaminants from man and the environment during 20

1 [7590-01] operations and for 1,000 years thereafter, without ongoing active mainte-nance, shall be considered." Comments. Comments on proposed changes to the time frame in Criterion 1 reflected confusion on goals or objectives versus require-ments and disagreement on times and reliance on active maintenance. State and environmental comments urged times greater than the 1,000 year EPA design standard on cover longevity and no reliance on maintenance. Industry favored a 200 year goal and reliance on maintenance. Response. Comments highlighted an important reason for the reac-tions to the existing language and the proposed change. The first para-graph of Criterion 1 is a statement of a very general goal or objective, not a specific standard or requirement. The proposed change and asso-ciated editorial errors compounded the problem. It was intended to prevent misunderstandings due to the reference to thousands of years, not to repeat the specific design standard being added to Criterion 6. Comments advocating a 200 year goal are directed at the EPA design standard and how it will be implemented in site specific actions. EPA's primary design standard is 1,000 years. Accordingly, the Commission has no discretion to promulgate a different design standard for a shorter period. Nor is the Commission authorized to establish a longer period as a stabilization requirement. The Commission's authority under sec-tion 84c(1) must be read in conjunction with the limits on that authority in section 84a(2). Taken together, these provisions authorize the Commission to exercise its discretion within the bounds established by EPA's standards. Further, as a general goal, permanent isolation with no planned reliance on active maintenancG is consistent with the findings in the GEIS, the EPA standard and the Congressional intent in section 161x(2) 21

l [7590-01] of the AEA that states: "

                                                                              . . . the need for long term maintenance and monitoring .     .  . will be minimized and, to the maximum extent practicable, eliminated." Because Congress did not flatly-prohibit maintenance, NRC may consider it, out the preference for no maintenance is clear.

The first paragraph of Criterion 1 is being clarified to emphasize that it states a goal and not a standard, and to delete any specific time frame. "Shall" is being changed to "should" in the fourth paragraph of Criterion 1 to further emphasize the goal concept. Modification 2.(b). This change would delete the ground-water modifier " usable" to be consistent with the primary thrust of the EPA standard to protect all ground water. Comments. State and environmental commenters supported this change and industry opposed it for reasons discussed under Criterion 5 modifications. Response. The general goal of the EPA standard is to protect all ground water. The proposed change was not intended to set aside the site specific option to pursue alternate concentration limits which may be based in part on the existing and potential use of the ground water. The existing language in Criterion 1 referring to " . . . isolation of con-taminants from usable groundwater sources" conflicts with the EPA standard. Criterion 3 Modification 3.(a). This change would delete the ground-water modi-fiers "high quality" to be consistent with the primary thrust of the EPA

standard. No new issues were raised on this change. 22 l

                                                                .       [7590-01]

Criterion 4 Modification 4.(a). This change would delete " maximum possible flood" and insert " Probable Maximum Flood" (PMF). Comments. Comments on the proposed change in Criterion 4 to replace

 " maximum possible flood" with " Probable Maximum Flood" reflected divergent views on the appropriate design flood to be used in analysis.        Environ-mental commenters favored maximum conservatism and industry advocated less conservative assumptions than either the existing or proposed language.

Response. The intent of paragraph (a) in Criterion 4 is to require that siting of tailings disposal areas minimize the upstream catchment area to reduce the potential for erosion regardless of the magnitude of the design flood. The modifiers " maximum possible" and " probable maximum" are both inappropriate since this criterion is not intended to discuss design ficod requirements. Decisions on design flood requirements will be tied to a necessary showing that the tailings pile will remain stabilized for the 1,000 year period in the EPA longevity standard. In order to emphasize the primary purpose of the requirement, the Commission is replacing " probable maximum flood" with " floods." Criterion 5 Proposed changes to Criteria 1, 3, and 5 were all intended to reflect that the EPA standard starts from a premise that no seepage from new or expanded impoundments or degradation of ground water are allowed and that all ground water is to be protected regardless of quality or use category. 23

[7590-01] Comments. Industry strongly opposed protecting non-usable ground water, recommended deferring all ground-water changes, and argued that the EPA ground-water standards are invalid because they fail the Congressional test of comparability to standards for wastes of similar hazard (e.g., mining wastes). EPA made a general comment that more distinction between existing and new sites is needed. Response. The comments clearly reflect confusion about the status of the EPA ground-water protection standards, the status of 10 CFR 40 Appendix A requirements, and the basis for proposing the few changes related to ground-water protection in advance of more comprehensive rule-making on ground water. As discussed earlier, the EPA standards have been applicable since December 6, 1983. NRC rulemaking is not required to impose the EPA standards. The proposed changes to Appendix A, and Criterion 5 in particular, were all intended to reflect that the EPA ; standard reflects the RCRA ground-water protection strategy and starts from a premise that no seepage from the impoundments or degradation of ground water is allowed and that all ground water is to be protected regardless of quality or use category. The changes were intended to remove language that explicitly conflicted with this basic strategy. They were not intended to fully conform to or to modify the EPA ground-water protection standard in any way. The EPA comment that the distinction between new and existing sites was not reflected was based on the brief rationale for the proposed change rather than the changes themselves. The rationale did not address the complex site specific options provided under the EPA standard (i.e., the use of site specific alternate concentration limits as the secondary 24

[7590-01] standard). Criterion 5, as modified in this rulemaking does not impact the existing /new site provisions and site specific provisions of 40 CFR 192 and no additional changes are warranted on this basis. Specific clarification of the dual regulatory situation on ground water is needed and an insert at the beginning of Criterion 5 is being added. Modification 5.(a). This change would delete language implying i that seepage to ground water is acceptable if it does not change the use category. No new issues were raised on this change. ! Modification 5.(b). This change would delete language referring to bottom liners of " low permeability." Comment. Commenters generally raised issues similar to those raised elsewhere on ground water. One commenter opposed this modification on technical grounds and pointed out that no material is totally impermeable and that state-of-the-art liners have permeability ratings on the order of 10 12m/sec. Response. The observation that in an absoluta and theoretical sense even synthetic liners are permeable, is correct. Commission concern is that most people reading the reference to " low permeability" will not consider the absolute or theoretical concept and that most readers would consider clay as low permeability and synthetic materials as impermeable. Deletion of " low permeability" leaves the issue of what type of liners ) are acceptable to the more specific EPA standards. 25

[7590-01] Modification 5.(c). This change would delete a reference to poten-tial use category as a standard. Comments. Commenters questioned implementation aspects. One commenter stated that deletion would leave the issue of degree of ground-water restoration open and another that deletion allows NRC to be more restrictive in degree of restoration than the EPA standard. Response. Deletion of the requirement to restore to ground water "to its potential use before milling operations began to the maximum extent practicable," does leave the degree of restoration open. The degree of restoration will be determined on a site specific basis in accordance with the EPA ground-water protection standards. Modification 5.(d). This change would delete references to use cate-gory and tailings in contact with ground water. No significant new issues were raised in comments on this proposed change. Modification 5.(e). The ground-water modifier " usable" would be deleted. No significant new issues were raised in comments on this proposed l change. Criterion 6 Modification 6.(a). This change would delete the two picocuries per square meter per second radon flux and minimum 3-meter cover thickness provisions and insert EPA's radon flux and longevity and stabilization l l standard. 26

[7590-01] Comments. Commenters objected to incorporation of the EPA longevity and radon design standards into Criterion 6. Many of the arguments were j directed against the EPA standard as being too lax to adequately protect health and the environment. On the other hand, many commenters argued that the standards were more stringent than warranted by the risks. I Response. As noted earlier, comments directed at the validity and ! merits of the EPA standard are considered outside the scope of this rule-making proceeding. Comments. Several commenters urged NRC to keep its more restrictive radon limit and 3-meter minimum cover. Commenters urging NRC to keep its more restrictive radon limit argued that the 2 picocurie flux is ALARA, is easily met based on the ' Department of Energy's (DOE) Title I research experience and is cost effective. Comments urging that the 3-meter requirement be retained based their position primarily on the protection 3 meters of earth affords against erosion and intrusion. Response. The new issue raised on the radon limit is the reference to Title I research. The DOE Title I research experience compared costs for different types of cover strategies; however these studies did not include analyses which would result in conclusions on the warranted levels of radon releases from covered tailings. To truly investigate whether the meeting of the 2 pCi/ma s flux criterion is ALARA would require a cost-benefit analysis, which EPA did in promulgating its standard. EPA established the radon flux limit at 20 pCi/m s and 2 NRC must conform. ; i The specific thickness of 3 meters was set to meet a 2 picocurie or l l twice-background performance criteria and is inconsistent with the higher EPA 20 picocurie flux limit. Alternatives to earth or in conjunction with earth may be adequate to meet the new, higher flux limit. Further,

1 27 i

l [7590-01] l well designed rock covers on the tops and side slopes of reclaimed tailings can provide sufficient erosion and intruder protection so that 3 meters of earth cannot be justified on the basis of the EPA longevity standard. Therefore, the three meter requirement has been deleted as inflexibly inconsistent with EPA's radon flux standard. Comment. One State objected to including the 200 year minimum longevity requirement based on the small incremental costs and practical-ity of meeting the longer (1,000 year) time and the longevity of the hazards from tailings. Response. The 200 year minimum longevity requirement provides relief in those unique reclamation situations where the 1,000 year cri-terion can be shown to impose too much of a cost hardship. The Commission - views the EPA longevity standard to be 1,000 years unless site specific circumstances preclude meeting 1,000 years. Comment. One State objected to NRC's proposed use of design stand-ards and suggested that NRC rules explicitly require proof that the design has been met by the reclamation actions. Resoonse. The EPA longevity and radon standard is written as a design standard. Requirements to confirm adequacy of design during and after construction have merit but will be very site and design specific. Normal inspection and enforcement activities would include quality control and compliance with designs approved and specified in license conditions. If unique site circumstances warrant, a requirement to confirm design parameters after the fact is not precluded. Comments. Three commenters offered clarifying suggestions. They included clarifying the reference to " permanent disposal," defining the term " disposal area," and addressing how the longevity design standard 28

[7590-01] will be implemented. One commenter also suggested that the standard be clarified to make it clear, that to the extent practicable, the cover would still meet the 20 picocurie flux limit at the end of the 1,000 year design period. Response. The Commission is implementing the suggestion to clarify

   " permanent disposal" but believes that " disposal area" is adequately addressed in the context of the proposed changes.        The suggestion to address implementation would result in a level of detail in the rule normally relegated to NRC guidance documents.

The Commission agrees that the EPA standard is not completely clear that the flux limit is to be met throughout the effective design life to the extent practicable and is clarifying this point. Comments. Industry opposed including any EPA standards for thorium byproduct material or, if some standard is included, suggested that explicit flexibility for site specific decisions should also be included. Industry also suggested a 50 year stabilization time period for thorium byproduct materials. Response. The comments opposing incorporation of the EPA standards for thorium byproduct material generally express dissatisfaction with the EPA standard itself. The thorium standards proposed for insertion are already in effect on NRC and State licensees and are nondiscretionary. The EPA standard in 40 CFR 192.42 provides for substitute generic provisions to those in Subpart E, but with EPA concurrence. NRC has the authority to consider and approve site specific alternatives if the finding in section 84c of the AEA can be made. 29

[7590-01] Modification 6.(b). This change would add the two radon flux modify-ing footnotes from the EPA standard that specify that no monitoring is required, averaging is allowed, and cover materials do not have to be considered in meeting the flux limit. Comments. Several State and environmental commenters objected to the incorporation of the CPA footnote qualifying the longevity and radon standard as a design standard not requiring confirmatory monitoring. Averaging provisions and disregard of the radon from cover materials in the footnotes were also of concern. Response. The footnotes quoted from the EPA standards in 40 CFR 192 are necessary to define how EPA intended the longevity and radon standards to be used. The footnotes set the conditions which EPA supported as a reasonable balance of cost and benefit that would be achievable with present state of the art. The practical problems which led EPA to issue a design standard and NRC experience in radon attenuation measurements and calculations convince the Commission that flux monitoring should not be mandated. Measurement of flux levels in the field is difficult and subject to wide variations due to factors such as sensitivity to measure-ment methods, meteorological variations, nonhomogeneity of the tailings piles, and disturbance of the radon releases by the monitoring process. NRC's current method for providing reasonable assurance that the EPA flux standard will be met focuses on the selection and application of param-eters and calculational methodology for radon barrier design. NRC expects to review quality assurance records during construction to assure that the approved design is implemented in the field. The Commission notes that Agreement States can adopt more restrictive standards than EPA or NRC and may mandate monitoring if desired. 30

[7590-01] l l NRC experience also supports the need for averaging over the impound- I ment. The tailings are not homogeneous. As a practical matter, radon transport offsite results in mixing before the public is exposed so that doses are reflected by average values. Details on calculation methods are more appropriate in guidance documents that can be tailored to site specific conditions and track state-of-the-art experience. Concern about high radium content of cover materials is addressed in the second paragraph of the proposed modified Criterion 6. The second paragraph contains the requirements on low radium content that were already in Appendix A. The footnote only clarifies that the EPA standard applies to the tailings flux through the cover and that radon from cover materials are not to be included in demonstrating compliance with the 20 picocurie flux. Modification 6.(c). This change would correct a typographical error and delete the 3-meter requirement. No new issues were raised on this change. Modification 6. (d). This change would add the threshold radium levels for applicability of the EPA standard on longevity and control of radon releases. Comments. One State expressed the view that the provision allowing averaging of radium content over 100 square meters allows highly con-taminated small areas to be ignored and is therefore insufficiently protective. Other comments were based on the validity and merits of the EPA standards, particularly the thorium standards. 31

[7590-01] Response. The proposed language is needed to reflect the conditions under which EPA intended the longevity and radon standard to apply. The modification as proposed would allow NRC to be more restrictive if warranted by site specific conditions. NRC may require some degree of control for areas contaminated above background but below the threshold levels. A rule change is not needed to maintain this option on a site specific basis. Criterion 8 Modification 7.(a). The change would add the EPA standard on the "as low as practicable" goal for radon releases during operations. Comments. Commenters questioned implementation aspects of the Crite-rion 8 change. One commenter argued for the current terminology reflected

in 10 CFR Part 20 for keeping releases as low as reasonably achievable (ALARA) as the true EPA intent.

Response. The Commission agrees that EPA's intent was to impose the ALARA principal and that ALARA is more consistent with Commission radia-i tion protection policies as reflected in 10 CFR Part 20. The actual language in a standard has greater legal force than the preamble for the rule, but in this case, since numerical values or other specific pro-visions are not involved, the Commission has more flexibility in cc.1 forming. J Modification 7.(b). These changes would add language from the EPA standard imposing 40 CFR 190 equivalent limits for thorium byproduct materials and compliance with 40 CFR Part 440, Subpart C. 32

[7590-01] Comments. One environmental commenter objected to the " reasonable assurance" language. Industry repeated objections to all the thorium standards. Industry recommended that waiver provisions from a recent EPA rulemaking under the Clean Air Act (50 FR 5190, February 6,1985) be incorporated into the thorium dose limits. Industry also opposed adding the language requiring compliance with 40 CFR Part 440, Subpart C stating that these regulations are invalid since EPA lacks authority to regulate byproduct material under the Clean Water Act. Response. The proposed text was quoted verbatim from the EPA stand-ard in 40 CFR 192. No deletions or modifications of existing NRC rules are involved. The proposed change incorporates for clarity standards that are already binding on NRC licensees and eliminates the need to refer to 40 CFR 192 for any requirements other than ground-water protec-tion. The waiver provisions suggested may have merit in considering site specific situations but are outside the scope of this rulemaking. The Commission sees no merit in arguments that 40 CFR 440, Subpart C, is invalid as a standard incorporated by reference into 40 CFR 192. Modification 8. Criteria 2, 7, 9, 10, 11, and 12 are not affectad by proposed changes. Changes to these criteria recommended by commenters are outside the scope of this rulemaking. 1 Modifications The Commission is issuing the following modifications to Appendix A to 10 CFR Part 40: 33

[7590-01]

1. Introduction.

(a) In the second sentence of the third paragraph, change "amand-ability" to " amenability." (b) Delete the fourth paragraph in its entirety. (c) Add the following two paragraphs at the end:

       " Licensees or applicants may propose alternatives to the specific requirements in this Appendix. The alternative proposals may take into account local or regional conditions, including geology, topography, hydrology, and meteorology. The Commission may find that the proposed alternatives meet the Commission's requirements if the alternatives will achieve a level of stabilization and containment of the sites concerned, and a level of protection f,r public health, safety, and the environment from radiological and nonradiological hazards associated with the sites, which is equivalent to, to the extent practicable, or more stringent than the level which would be achieved by the requirements of this Appendix and the standards promulgated by the Environmental Protection Agency in 40 CFR 192, Subparts 0 and E."
       "All site specific licensing decisions based on the criteria in this Appendix or alternatives proposed by licensees or applicants will take into account the risk to the public health and safety and the environment with due consideration to the economic costs involved and any other factors the Commission determines appropriate.       In implementing this Appendix, the Commission will consider " practicable" and " reasonably achievable" as equivalent terms. Decisions involving these terms will take into account the state of technology, and the economics of improve-i ments in relation to benefits to the public health and safety, and other 34 l

l t

[7590-01] societal and socioeconomic considerations, and in relation to the utiliza-tion of atomic energy in the public interest."

2. Criterion 1.

(a) Revise the first paragraph to read:

           "The general goal or broad objective in siting and design decisions is permanent isolation of tailings and associated contaninants by minimizing disturbance and dispersion by natural forces, and to do so without ongoing maintenance.        For practical reasons, specific siting decisions and design standards must involve finite times (e.g., the lon-gevity design standard in Criterion 6).        The following site features which will contribute to such a goal or objective must be considered in selec-tingamongalternativetailings[isposalsitesorjudgingtheadequacy of existing tailings sites:"

(b) In the second listed item of the first paragraph, delete the word " usable". (c) In the fourth paragraph delete the word "shall" and insert "should".

3. Criterion 3.

(a) Delete the modifers "high quality" for ground water in the third sentence.

4. Criterion 4.

(a) Revise paragraph (a) by deleting " maximum possible flood" and inserting " floods".

5. Criterion 5.

(a) Add the following paragraph at the beginning:

          " Licensees and applicants are reminded that Subparts D and E of 40 CFR 192 have been applicable since December 6, 1983.          The goal of 35

[7590-01] the EPA standards in 40 CFR 192 is nondegradation of all ground water. The primary ground-water standard in 40 CFR 192.32(a)(1), which applies to new or expanded impoundments, does not include consideration of existing or future ground-water quality. The secondary standard in 40 CFR 192.32(a)(2) applies to management of all byproduct material including existing and new or expanded impoundments. In the secondary standard, several ground-water quality criteria are considered, especially in site specific decisions on applications for alternate concentration limits. Criterion 5 supplements and does not conflict with or modify provisions of 40 CFR 192. Until or unless the Commission undertakes addi-tional rulemaking as described in the advance notice of proposed rule-making published in the Federal Register on November 26, 1984 (49 FR 46425), licensees and applicants should consult 40 CFR Part 192 for the applicable ground-water protection requirements. In the interim, the Commission is applying appropriate aspects of 40 CFR 192 in individual licensing actions on a case-by-case basis through license conditions and orders." (b) Delete in its entirely the first paragraph beginning " Steps shall be taken. . ." and ending ". . . this objective." and insert the follow-ing: "In developing and conducting ground-water protection programs, applicants and licensees shall consider the following: ". (c) In the first listed item under the first paragraph beginning with " Installation of..." delete the words " low permeability" as a char-acteristic of bottom liners. (d) In the second paragraph beginning "Where ground water impacts..." delete the phrase "to its potential use before milling operations began to the maximum extent practicable." 36

(7590-01] (e) Delete in its entirety the third paragraph beginning "While the primary method of protecting ground water shall be isolation..." and ending "...from current or potential uses." (f) In the first sentence of the fifth paragraph beginning "This information shall be gathered..." delete the word " usable" where it modifies " ground water."

6. Criterion 6.

(a) Delete the first sentence in entirety, beginning with "Suffi-cient earth cover..." and ending with ". .. meter per second.", and in its place insert "In disposing of waste byproduct material, licensees shall place an earthen cover over tailings or wastes at the end of milling operations and shall close the waste disposal area in accordance with a design 1 which provides reasonable assurance of control of radiological hazards to (i) be effective for one thousand years, to the extent reasonably achievable, and, in any case, for at least 200 years, and (ii) limit releases of radon-222 from uranium byproduct materials, and raden-220 from thorium byproduct materials, to the atmosphere so as to not exceed an average 2 release rate of 20 picocuries per square meter per 2 second (pCi/m s) to the extent practicable throughout the effective design' life determined pursuant to (i) above." (b) Add to Criterio'n 6 the following two footnotes which accompany the revised first sentence: Footnote (1) "The standard applies to design. Monitoring for radon after installation of an appropriately designed cover is not required," and footnote (2) "This average applies to the entire surface of each disposal area over periods of at least one year, but short compared to 100 years. Radon will come from both uranium byproduct materials and from covering materials. Radon emissions from covering 37

[7590-01] materials should be estimated as part of developing a closure plan for each site. The standard, however, applies only to emissions from l byproduct materials to the atmosphere." (c) In the fifth sentence of the first paragraph, replace "non-soiled" with "non-soil," and replace the words "to reduce tailings covers to less than three meters" with the words "as cover materials." (d) At the end of Criterion 6, add a new paragraph to read:

   "The design requirements in this Criterion for longevity and control of radon releases apply to any portion of a licensed and/or disposal site unless such portion contains a concentration of radium in land, averaged over areas of 100 square meters, which, as a result of byproduct material does not exceed the background level by more than:      (i) 5 pico-curies per gram (pCi/g) of radium-226, or, in the case of thorium bypro-duct material, radium-228, averaged over the first 15 centimeters (cm) below the surface, and (ii) 15 pCi/g of radium-226, or, in the case of thorium byproduct material, radium-228, averaged over 15-cm thick layers more than 15 cm below the surface."

7. Criterion 8.

(a) At the end of the first full paragraph, add a new sentence to read "During operations and prior to closure, radiation doses from radon emissions from surface impoundments must be kept as low as is reasonably

achievable."

(b) Following the third full paragraph of Criterion 8, just before Criterion 8A, insert the following two new paragraphs:

         " Milling operations producing or involving thorium byproduct mate-rial must be conducted in such a manner as to provide reasonable assur-ance that the annual dose equivalent does not exceed 25 millirems to the 38

[7590-01] whole body, 75 millirems to the thyroid, and 25 millirems to any other organ of any member of the public as a result of exposures to the planned discharge of radioactive materials, radon-220 and its daughters excepted, to the general environment."

      " Uranium and thorium byproduct materials must be managed so as to conform to the applicable provisions of Title 40 of the Code of Federal Regulations, Part 440, Ore Mining and Dressing Point Source Category:

Effluent Limitations Guidelines and New Source Performance Standards, Subpart C, Uranium, Radium, and Vanadium Ores Subcategory, as codified on January 1, 1983."

8. Criteria 2, 7, 9, 10, 11, and 12 are not affected by this action.

The Commission is also issuing the following change to 10 CFR Part 150:

9. At the end of 9 150.31, a new paragraph (d) is added to read:

"In adopting requirements pursuant to paragraph (b)(2) of this section, the State may adopt alternatives (including, where appropriate, site-specific alternatives) to the requirements adopted and enforced by the Commission for the same purpose if, after notice and opportunity for public hearing, the Commission determines that the alternatives will achieve a level of stabilization and containment of the sites concerned, and a level of pro-tection for public health, safety and the environment from radiological and nonradiological hazards associated with such sites, which is equiva-lent to, to the extent practicable, or more stringent than the level which would be achieved by standards and requirements adopted and enforced by the Commission for the same purpose and any final standards promulgated 39

[7590-01] by the Administrator of the Environmental Protection Agency in accordance with section 275. Alternative State requirements may take into account local or regional conditions, including geology, topography, hydrology and meteorology." i The Commission is also adopting the standard convention on imposing an obligation or expressing a prohibition. This convention is endorsed by the Office of the Federal Register and is being implemented throughout all Federal regulations. In this convention, "shall" is used to impose an obligation on an individual or a legal entity capable of performing the required action, "must" is used as the mandatory form when the subject is an inanimate object and "may not" is used to express a prohibition. All of Appendix A now reflects this standard convention. Ccmmission Authority and Resoonsibility Section 84c. of the Atomic Energy Act states that: A Licensee may propose alternatives to specific requirements adopted and enforced by the Commission under this act. Such alternative proposals may take into account local or regional conditions, includ-ing geology, topography, hydrology and meteorology. The Commissicn may treat such alternatives as satisfying Commission requirements if the Commission determines that such alternatives will achieve a level of stabilization and containment of the sites concerned, and a level of protection for public health, safety, and the environment from radiological and nonradiological hazards associated with such sites, which is equivalent to, to the extent practicable, or more 40

[7590-01] stringent than the level which would be achieved by standards and requirements adopted and enforced by the Commission for the same purpose and any final standards promulgated by the Administrator of the Environmental Protection Agency in accordance with Section 275. The Commission historically has had the authority and responsibility to regulate the activities of persons licensed under the Atomic Energy Act of 1954, as amended. Consistent with that authority and in accord-ance with section 84c. of that Act, the Commission has the discretion to review and approve site specific alternatives to standards promulgated by the Commission and by the Administrator of the Environmental Protection Agency. In the exercise of this authority, section 84c. does not require the Commission to obtain the concurrence of the Administrator in any site specific alternative which satisfies Commission requirements for the level of protection for public health, safety, and the environment from radiological and nonradiological hazards at uranium mill tailings sites. As an example, the Commission need not seek concurrence of the Admini-strator in case-by-case determinations of alternative concentration limits and delisting of hazardous constituents for specific sites. It should be understood that the proposed conforming regulations deal with the exercise of the Commission's responsibility and autnority under the Atomic Energy Act of 1954, solely as regards uranium mill tailings sites and have no broader connotation. The Commission believes that licensee proposals for alternatives can be an important and effective way to help deal with the problems asso-J ciated with implementing the new EPA standards. The Commission expects 41

                     ,-  -                           --  - ---- -  .-,     -,     ,-,w-

[7590-01) that it may require several years to have its conforming regulations fully in place. It expects to use the flexibility provided by section 84 in the interim to consider and approve alternative proposals from licensees. Section 84c. provides NRC sufficient authority to independently approve alternatives so long as the Commission can make the required determination. Impact of the Amendments The Commission's action in issuing these modifications to its regu-lations in Appendix A to 10 CFR Part 40 is to conform them to the new EPA standards. These changes are for the purpose of avoiding conflicts and inconsistencies between the text of the two rules, and for clarifying previously existing language so as to be compatible with the new require-ments. The action taken here by the Commission is a consequence of previous actions taken by the Congress and the EPA, and is legally mandated in section 275b(3) of the Atomic Energy Act of 1954, as amended. Commission action in this case is essentially nondiscretionary in nature, and for purposes of environmental analysis, rests upon existing environmental and other impact evaluations in the fo' lowing documents: (1) " Final Environmental Impact Statement for Standards for the Control of Byproduct Materials from Uranium Ore Processing (40 CFR Part 192)," Volumes 1 and 2, EPA 520/1-83-008-1 and 2 (FEIS), September 1983, and (2) " Regulatory Impact Analysis of Final Environmental Standards for Uranium Mill Tailings at Active Sites," EPA 520/1-83-010 (RIA), September 1983, both prepared in support of Subparts 0 and E of 40 CFR Part 192.1 1 Single copies of the FEIS and the RIA, as available, may be obtained from the Program Management Office (ANR-458), Office of Radiation Programs, U.S. Environmental Protection Agency, Washington, DC 20460; telephone number (703)S57-9351, 42

                                                  ~
                                                                                                    '[3dwu-uAJ and (3) " Final Generic Environmental Impact Statement on Uranium Milling,"

NUREG-0706, September 1980, prepared in support of Appendix A of 10 CFR Part 40.2 The Commission believes that these supporting analyses for the EPA standards and the existing Commission regulations provide a more than adequate environmental review for the standards addressed in this rule-making and that no additional impact analysis is warranted by the con-forming actions issued in this final rule. The EPA engaged in and completed a NEPA process with full consideration of environmental concerns, and for the purposes of this rulemaking action, can be viewed as the lead agency. PAPERWORK REDUCTION ACT STATEMENT i This rule does not contain a new or amended information collection requirement subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). Existing requirements were approved i by the Office of Management and Budget approval number 3150-0020. REGULATORY FLEXIBILITY CERTIFICATION i As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission certifies that this rule will not hase a significant 2 Copies of NUREG-0706 may be purchased by calling (202)275-2060 or by

writing to the Superintendent of Cocuments, U.S. Government Printing Office, P.O. Box 37082, Washington, DC 20013-7982 or purchased from the National Technical Information Service, Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161.

f 43

[7590-b1] 4 _ _[ economic impact upon a substantial number of small entities. There fore , no Regulatory Flexibility Analysis has been prepared. TIebasisfor ,- this finding is that of the licensed uraniem mills, only one qualifies as a sma'll entity. Almost all the mills are owned by large corporations. Three of. the mills are partly-owned by trynpanies that could qualify as small businesses, according to the Small Business Administration generic small entity definition of 500 emplo)Ns. However, under the Regulatory Flexibility Act, a small business is one that is independently owned and- - operated. s Because these three mills are not independently owned they do l not , qualify as small ent,ities. i O - i . LIST OF SUBJECTS IN 10 CFiC PARTS 40 AND 150 Part.40 - Governm nt contracts, Hazardous materials-transportation,'

                                                                                                            ,                 l Nuclear materials, Penalty, Reporting and recordkeeping requiregnents,

Source material, Uranium. ,

P4rt 150 - Hazardous materials-transportation, Intergrov'stnmental

                                  -                  s        -

relations, Nuclear materials, Penalty, Reporting and recordkeeping requirements, Security measures, Source mattti al, Special nuclear v , J material., - n Under the Atomic Energy A!:t of 1954, as amended, the Energy Reorgani-i

                                                                                      ,  q         -.

zation Act of 1974, as amenced, 5 U.S.C. 553, and the cranium #,ill Tail-ings Radiation Control Act of 1978, as amended, the NRC is issuing the following a.mendments to 10 CFR Parts 40 and 150. ' j A# e b * l 44 .- .; 4

g. e- e f

                            *g                                     . , , .
                                                            -    +

[7590-01] PART 40 DOMESTIC LICENSING OF SOURCE MATERIAL

1. The authority citation for Part 40 is revised to read as follows:

AUTHORITY: Secs. 62, 63, 64, E5, 81, 161, 182, 183, 186, 69 Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs. 11e(2), 83, 84, Pub. L. 95-604, 92 Stat. 3033, as amended, 3039, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2014(e)(2), 2092, 2093, 2094, 2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); secs. 274, Pub. L. 86-373, 73 Stat. ' 688 (42 U.S.C. 2021); secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846). Sec. 275, 92 Stat. 3021, as amended by Pub. L. 97-415, 95 Stat. 2067 (42 U.S.C. 2022). Section 40.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5851). Section 40.31(g) also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 40.46 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 40.71 also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237). For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273); SS 40.3, 40.25(d)(1)-(3), 40.35(a)-(d), 40.41(b) and (c), 40.46, 40.51(a) and (c), and 40.63 are issued under sec. 161b, 68 Stat. 948, as amended, (42 U.S.C. 2201(b)); and SS 40.25(c) and (d)(3) and (4), 40.26(c)(2), 40.35(e), 40.42, 40.61, 40.62, 40.64 and 40.65 are issued under sec. 161o, 68 Stat. 950, as amended (42 U.S.C. 2201(o)). i 1 , 45 l l l l l

[7590-01] t l

2. Appendix A to Part 40 is revised to read as follows: l Appendix A to Part 40 - Criteria Relating to the Operation of Uranium Mills and the Disposition of Tailings or Wastes Produced by the Extraction or Concentration of Source Material From Ores Processed Primarily for Their Source Material Content. l l

Introduction. Every applicant for a license to possess and use source material in conjunction with uranium or thorium milling, or bypro-1 duct material at sites formerly associated with such milling, is required by the provisions of S 40.31(h) to include in a license application pro-posed specifications relating to milling operations and the disposition of tailings or wastes resulting from such milling activities. This appen-dix establishes technical, financial, ownership, and long-term site surveillance criteria relating to the siting, operation, decontamination, decommissioning, and reclamation of mills and tailings or waste systems and sites at which such mills and systems are located. As used in this appendix, the term "as low as is reasonably achievable" has the same mean-ing as in S 20.1(c) of 10 CFR Part 20 of this chapter. In many cases, flexibility is provided in the criteria to allow achieving an optimum tailings disposal program on a site-specific basis. However, in such cases the objectives, technical alternatives and con- ; l cerns which must be taken into account in developing a tailings program are identified. As provided by the provisions of S 40.31(h) applica- l tions for licenses must clearly demonstrate how the criteria have been addressed. The specifications must be developed considering the expected full capacity of tailings or waste systems and the lifetime of mill operations. Where later expansions of systems or operations may be likely (for example, 46

[7590-01) where large quantities of ore now marginally uneconomical may be stock-piled), the amenability of the disposal system to accommodate increased capacities without degradation in long-term stability and other perform-ance factors must be evaluated. Licensees or applicants may propose alternatives to the specific requirements in this Appendix. The alternative proposals may take into account local or regional conditions, including geology, topography, hydrology, and meterology. The Commission may find that the proposed alternatives meet the Commission's requirements if the alternatives will achieve a level of stabilization and containment of the sites concerned, and a level of protection for public health, safety, and the environment from radiological and nonradiological hazards associated with the sites, which is equivalent to, to the extent practicable, or more stringent than the level which would be achieved by the requirements of this . appendix and the standards promulgated by the Environmental Protection Agency in 40 CFR 192, Subparts D and E. All site specific licensing decisions based on the criteria in this Appendix or alternatives proposed by licensees or applicants will take into account the risk to the public health and safety and the environment with due consideration to the economic costs involved and any other factors the Commission determines to be appropriate. In implementing this Appendix, the Commission will consider " practicable" and " reasonably achievable" as equivalent terms. Decisions involving these terms will take into account the state of technology, and the economics of improve-ments in relation to benefits to the public health and safety, and other societal and socioeconomic considerations, and in relation to the utiliza-tion of atomic energy in the public interest. . 47

[7590-01] I. Technical Criteria Criterion 1--The geraral goal or broad objective in siting and design decisions is permanent isolation of tailings and associated contaminants by minimizing disturbance and dispersion by natural forces, and to do so without ongoing maintenance. For practical reasons, specific siting decisions and design standards must involve finite times (e.g., the longevity design standard in Criterion 6). The following site features which will contribute to such a goal or objective must be considered in selecting among alternative tailings disposal sites or judging the ade-quacy of existing tailings sites: Remoteness from populated areas; Hydrologic and other natural conditions as they contribute to continued immobilization and isolation of contaminants from ground-water sources; and Potential for minimizing erosion, disturbance, and dispersion by natural forces over the long term. The site selection process must be an optimization to the maximum extent reasonably achievable in terms of these features. In the selection of disposal sites, primary emphasis must be given l to isolation of tailings or wastes, a matter having long-term impacts, as opposed to consideration only of short-term convenience or benefits, such as minimization of transportation or land acquisition costs. While isola-tion of tailings will be a function of both site and engineering design, overriding consideration must be given to siting features given the long-term nature of the tailings hazards. Tailings should be disposed of in a manner that no active maintenance l is required to preserve conditions of the site. l 48

[7590-01] Criterion 2--To avoid proliferation of small waste disposal sites and thereby reduce perpetual surveillance obligations, byproduct material from in situ extraction operations, such as residues from solution evapo-ration or contaminated control processes, and wastes from small remote above ground extraction operations must be disposed of at existing large mill tailings disposal sites; unless, considering the nature of the wastes, such as their volume and specific activity, and the costs and environmental impacts of transporting the wastes to a large disposal site, such offsite disposal is demonstrated to be impracticable or the advantages of onsite burial clearly outweigh the benefits of reducing the perpetual surveillance obligations. Criterion 3--The " prime option" for disposal of tailings is place-ment below grade, either in mines or specially excavated pits (that is, where the need for any specially constructed retention structure is eliminated). The evaluation of alternative sites and disposal methods performed by mill operators in support of their proposed tailings disposal program (provided in applicants' environmental reports) must reflect serious consideration of this disposal mode. In some instances, below grade disposal may not be the most environmentally sound approach, such as might be the case if a ground-water formation is relatively close to the surface or not very well isolated by overlying soils and rock. Also, geologic and topographic conditions might make full below grade burial impracticable: for example, bedrock may be sufficiently near the surface that blasting would be required to excavate a disposal pit at excessive cost, and more suitable alternative sites are not available. Where full below grade burial is not practicable, the size of retention structures, and size and steepness of slopes of associated exposed embankments must 49

[7590-01] be minimized by excavation to the maximum extent reasonably achievable or appropriate given the geologic and hydrologic conditions at a site. In these cases, it must be demonstrated that an above grade disposal program will provide reasonably equivalent isolation of the tailings from natural erosional forces. Criterion 4--The following site and design criteria must be adhered to whether tailings or wastes are disposed of above or below grade. l l (a) Upstream rainfall catchment areas must be minimized to decrease erosion potential and the size of the floods which could erode or wash out sections of the tailings disposal area. (b) Topographic features should provide good wind protection. (c) Embankment and cover slopes must be relatively flat after final stabilization to minimize erosion potential and to provide conser-vative factors of safety assuring long-term stability. The broad objec-tive should be to contour final slopes to grades which are as close as possible to those which would be provided if tailings were disposed of l _ below grade; this could, for example, lead to slopes of about 10 hori-zontal to 1 vertical (10h:1v) or less steep. In general, slopes should not be steeper than about Sh:1v. Where steeper slopes are proposed, reasons why a slope less steep than Sh:1v would be inpracticable should be provided, and compensating factors and conditions which make such slopes acceptable should be identified. (d) A full self-sustaining vegetative cover must be established or rock cover employed to reduce wind and water erosion to negligible levels. 50

[7590-01] Where a full vegetative cover is not likely to be self-sustaining due to climatic or other conditions, such as in semi-arid and arid regions, rock cover must be employed on slopes of the impoundment sys-tem. The NRC will consider relaxing this requirement for extremely gentle slopes such as those which may exist on the top of the pile. The following factors must be considered in establishing the final rock cover design to avoid displacement of rock particles by human and animal traffic or by natural process, and to preclude undercutting and piping:

         -     shape, size, composition, and gradation of rock particles (excepting bedding material average particles size must be at least cobble size or greater);
         -     rock cover thickness and zoning of particles by size; and
         -     steepness of underlying slopes.

Individual rock fragments must be dense, sound, and resistant to abrasion, and must be free from cracks, seams, and other defects that would tend to unduly increase their destruction by water and frost actions. Weak, friable, or laminated aggregate may not be used. Rock covering of slopes may be unnecessary where top covers are very thick (on the order of 10m or greater); impoundment slopes are very gentle (on the order of 10 h:1v or less); bulk cover materials have inherently favorable erosion resistance characteristics; and, there is negligible drainage catchment area upstream of the pile and good wind protection as described in points (a) and (b) of this Criterion. Furthermore, all impoundment surfaces must be contoured to avoid areas of concentrated surface runoff or abrupt or sharp changes in slope 51

[7590-01] gradient. In addition to rock cover on slopes, areas toward which sur-face runoff might be directed must be well protected with substantial rock cover (rip rap). In addition to providing for stability of the impoundment system itself, overall stability, erosion potential, and geomorphology of surrounding terrain must be evaluated to assure that there are not ongoing or potential processes, such as gully erosion, which would lead to impoundment instability. (e) The impoundment may not be located near a capable fault that could cause a maximum credible earthquake larger than that which the impoundment could reasonably be expected to withstand. As used in this criterion, the term " capable fauld' has the same meaning as defined in S III(g) of Appendix A of 10 CFR 100. The term " maximum credible earth-quake" means that earthquake which would cause the maximum vibratory ground motion based upon an evaluation of earthquake potential consider-ing the regional and local geology and seismology and specific character-istics of local subsurface material. (f) The impoundment, where feasible, should be designed to incor-f porate features which will promote deposition. For example, design i features which promote deposition of sediment suspended in any runoff f t which flows into the impoundment area might be utilized; the object of such a design feature would be to enhance the thickness of cover over time. ' Criterion 5--Licensees and applicants are reminded that Subparts 0 and E of 40 CFR 192 have been applicable since December 6, 1983. The goal of the EPA standards in 40 CFR 192 is nondegradation of all ground water. The primary ground-water standard in 40 CFR 192.32(a)(1), which applies to new or expanded impoundments, does not include consideration 52'

[7590-01] of existing or future ground-water quality. The secondary standard in 40 CFR 192.32(a)(2) applies to management of all byproduct material including existing and new or expanded impoundments. In the secondary standard, several ground-water quality criteria are considered, especially in site specific decisions on applications for alternate concentration limits. Criterion 5 supplements and does not conflict with or modify provisions of 40 CFR 192. Until or unless the Commission undertakes addi-tional rulemaking as described in the advance notice of proposed rule-making published in the Federal Register on November 26, 1984 (49 FR 46425), licensees and applicants should consult 40 CFR Part 192 for the applicable ground-water protection requirements. In the interim, the Commission is applying appropriate aspects of 40 CFR 192 in individual licensing actions on a case-by-case basis through license conditions and orders. In developing and conducting ground-water protection programs, applicants and licensees shall consider the following: Installation of bottom liners (Where synthetic liners are used, a leakage detection system must be installed immediately below the liner to ensure major failures are detectcd if they occur. This is in addi-tion to the ground-water monitoring program conducted as provided in Criterion 7. Where clay liners are proposed or relatively thin, in-situ clay soils are to be relied upon for seepage control, tests must be conducted with representative tailings solutions and clay materials to confirm that no significant deterioration of oermeability or stability properties will occur with continuous exposure of clay to tailings solu-tions. Tests must be run for a sufficient period of time to reveal any effects if they are going to occur (in some cases deterioration has been observed to occur rather rapidly after about nine months of exposure)). 53 l

i [7590-01] l

                                  -' Mill process designs which provide the maximum practicable recycle of solutions and conservation of water to reduce the net input of liquid l

l to the tailings impoundment.

                                  -   Dewatering of tailings by process devices and/or in-situ drainage systems (At new sites, tailings must be dewatered by a drainage system installed at the bottom of the impoundment to lower the phreatic surface and reduce the driving head for seepage, unless tests show tailings are i

not amenable to such a system. Where in-situ dewatering is to be con-ducted, the impoundment bottom must be graded to assure that the drains are at a low point. The drains must be protected by suitable filter materials to assure that drains remain free running. The drainage system must also be adequately sized to assure good drainage).

                                  -   Neutralization to promote immobilization of toxic substances.

Where ground-water impacts are occurring at an existing site due to seepage, action must be taken to alleviate conditions that lead to excessive seepage impacts and restore ground-water quality. The specific seepage control and ground-water protection method, or combination of * ! methods, to be used must be worked out on a site-specific basis. Tech-nical specifications must be prepared to control installation of seepage control systems. A quality assurance, testing, and inspection program, which includes supervision by a qualified engineer or scientist, must be established to assure the specifications are met. In support of a tailings disposal system proposal, the applicant / i operator shall supply information concerning the following: i The chemical and radioactive characteristics of the waste solutions.

54

_ . ~. . - _ , _ , _ _ . _ . _ . . - _ , - . . . _ - _ _ - - - - - _ _ _ _. _. _ , _ _ _ _ _ _ , _ _ _ , , _ . . . . _ . - - - - - _ . , . -

[7590-01] The characteristics of the underlying soil and geologic forma-tions particularly as they will control transport of contaminants and solutions. This includes detailed information concerning extent, thickness, uniformity, shape, and' orientation of underlying strata. Hydraulic gradients and conductivities of the various formations must be determined. This information must be gathered from borings and field survey methods taken within the proposed impoundment area and in surrounding areas where contaminants might migrate to ground water. 'The information gathered on boreholes must include both geologic and geophysical logs in sufficient number and degree of sophistication to allow determining significant discontinuities, fractures, and channeled deposits of high hydraulic conductivity. If field survey methods are used, they should be in addition to and calibrated with borehole logging. Hydrologic parameters such as permeability may not be determined on the basis of laboratory analysis of samples alone; a sufficient amount of field test-ing (e.g. , pump tests) must be conducted to assure actual field pro-perties are adequately understood. Testing must be conducted to allow estimating chemi-sorption attenuation properties of underlying soil and rock. Location, extent, quality, capacity and current uses of any ground water at and near the site. Furthermore, steps must be taken during stockpiling of ore to mini-mize penetration of radionuclides into underlying soils; suitable methods include lining and/or compaction of ore storage areas. . 55

[7590-01) Criterion 6--In disposing of waste byproduct material, licensees shall place an earthen cover over tailings or wastes at the end of mill-ing operations and shall close the waste disposal area in accordance with a designt which provides reasonable assurance of control of radiological hazards to (i) be effective for 1,000 years, to the extent reasonably achievable, and, in any case, for at least 200 years, and (ii) limit releases of rtdon-222 from uranium byproduct materials, and radon-220 from thorium byproduct materials, to the atmosphere so as to not exceed an average2 release rate of 20 picocuries per square meter per second (pCi/m 2 s) to the extent practicable throughout the effective design life determined pursuant to (i) above. In computing required tailings cover thicknesses, moisture in soils in excess of amounts found normally in similar soils in similar circumstances may not be considered. Direct gamma exposure from the tailings or wastes should be reduced to background levels. The effects of any thin synthetic layer may not be taken into account in determining the calculated radon exhalation level. If non-soil materials are proposed as cover materials, it must be demon-strated that such materials will not crack or degrade by differential settlement, weathering, or other mechanism, over long-term time intervals. IThe standard applies to design. Monitoring for radon after installation of an appropriately dvsigned cover is not required. 2This average applies to the entire surface of each disposal area over periods of at least 1 year, but short compared to 100 years. Radon will come from both uranium byproduct materials and from covering materials. Radon emissions from covering materials should be estimated as part of developing a closure plan for each site. The standard, however, applies only to emissions from uranium byproduct materials to the atmosphere. 56

[7590-01] Near surface cover materials (i.e., within the top three meters) may not include waste or rock that contains elevated levels of radium; soils used for near surface cover must be essentially the same, as far as radioactivity is concerned, as- that of surrounding surface soils. This is to ensure that surface radon exhalation is not significantly above background because of the cover material itself. 1 The design requirements in this criterion for longevity and control of radon releases apply to any portion of a licensed and/or dis-posal site unless such portion contains a concentration of radium in land, averaged over areas of 100 square meters, which, as a result of byproduct material does not exceed the background level by more than: (1) 5 pico-curies per gram (pC1/g) of radium-226, or, in the case of thorium bypro-duct material, radium-228, averaged over the first 15 centimeters (cm) below the surface, and (ii) 15 pCi/g of radium-226, or, in the case of thorium byproduct material, radium-228, averaged over 15-cm thick layers more than 15 cm below the surface. Criterion 7--At least one full year prior to any major site construc-tion, a preoperational monitoring program must be conducted to provide complete baseline data on a milling site and its environs. Throughout

the construction and operating phases of the mill, an operational monitor-ing program must be conducted to measure or evaluate compliance with applicable standards and regulations; to evaluate performance of control systems and procedures; to evaluate environmental impacts of operation; and to detect potential long-term effects.

Criterion 8--Milling operations must be conducted so that all air-borne effluent releases are reduced to levels as low as is reasonably achievable. The primary means of accomplishing this must be by means of 57

[7590-01] emission controls. Institutional controls, such as extending the site boundary and exclusion area, may be employed to ensure that offsite expo-sure limits are met, but only after all practicable measures have been taken to control emissions at the source. Notwithstanding the existence of individual dose standards, strict control of emissions is necessary to assure that population exposures are reduced to the maximum extent reasonably achievable and to avoid site contamination. The greatest potential sources of offsite radiation exposure (aside from radon expo-sure) are dusting from dry surfaces of the tailings disposal area not covered by tailings solution and emissions from yellowcake drying and packaging operations. During operations and prior to closure, radiation doses from radon emissions from surface impoundments of uranium or thorium byproduct materials must be kept as low as is reasonably achievable. Checks must be made and logged hourly of all parameters (e.g., differential pressures and scrubber water flow rates) which determine the efficiency of yellowcake stack emission control equipment operation. It must be determined whether or not conditions are within'a range pre-scribed to ensure that the equipment is operating consistently near peak efficiency; corrective action must be taken when performance is outside i of prescribed ranges. Effluent control devices must be operative at all times during drying and packaging operations and whenever air is exhausting from the yellowcake stack. Orying and packaging operations must terminate when controls are inoperative. When checks indicate the equipment is not operating within the range prescribed for peak effi-ciency, actions must be taken to restore parameters to the prescribed range. When this cannot be done without shutdown and repairs, drying 58

[7590-01] I and packaging operations must cease as soon as practicable. Operations I may not be re-started after cessation due to off-normal performance until needed corrective actions have been identified and implemented. All such cessations, corrective actions, and re-starts must be reported to the appropriate NRC regional office as indicated in Criterion 8A, in writing, within 10 days of the subsequent restart. To control dusting from tailings, that portion not covered by stand-ing liquids must be wetted or chemically stabilized to prevent or mini-i mize blowing and dusting to the maximum extent reasonably achievable. This requirement may be relaxed if tailings are effectively sheltered from wind, such as may be the case where they are disposed of below grade and the tailings surface is not exposed to wind. Consideration must be given in planning tailings disposal programs to methods which would allow phased covering and reclamation of tailings impoundments because this will help in controlling particulate and radon emissions during operation. To control dusting from diffuse sources, such as tailings and ore pads where automatic controls do not apply, operators shall develop written operat-1 ing procedures specifying the methods of control which will be utilized. Milling operations producing or involving thorium byproduct material must be conducted in such a manner as to provide reasonable assurance 1 that the annual dose equivalent does not exceed 25 millirems to the whole body, 75 millirems to the thyroid, and 25 millirems to any other organ of any member of the public as a result of exposures to the planned discharge of radioactive materials, radon-220 and its daughters excepted, to the general environment. Uranium and thorium byproduct materials must be managed so as to i conform to the applicable provisions of Title 40 of the Code of Federal 59

[7590-01]- Regulations, Part 440, " Ore Mining and Dressing Point Source Category: Effluent Limitations Guidelines and New Source Performance Standards, Subpart C, Uranium, Radium, and Vanadium Ores Subcategory," as codified on January 1, 1983. Criterion 8A--Daily inspections of tailings or waste retention systems must be conducted by a qualified engineer or scientist and documented. The appropriate NRC regional office as indicated in Appendix 0 of 10 CFR Part 20, or the Director, Office of Inspection and Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, must be immediately notified of any failure in a tailings or waste retention system which results in a release of tailings or waste into unrestricted areas, and/or of any unusual conditions (conditions not contemplated in the design of the retention system) which if not corrected could indicate the poten-tial or lead to failure of the system and result in a release of tail-ings or waste into unrestricted areas. II. Financial Criteria Criterion 9--Financial surety arrangements must be established by each m'll operator prior to the commencement of operations to assure that sufficient funds will be available to carry out the decontamination and decommissioning of the mill and site and for the reclamation of any tail-ings or waste disposal areas. The amount of funds to be ensured by such surety arrangements must be based on Commission-approved cost estimates in a Commission-approved plan for (1) decontamination and decommissioning of mill buildings and the milling site to levels which would allow unre-stricted use of these areas upon decommissioning, and (2) the reclamation of tailings and/or waste disposal areas in accordance with technical criteria delineated in Section I of this Appendix. The licensee shall 60

[7590-01] submit this plan in conjunction with an environmental report that addresses the expected environmental impacts of the milling operation, decommission-ing and tailings reclamation, and evaluates alternatives for mitigating these impacts. The surety must also cover the payment of the charge for long-term surveillance and control required by Criterion 10. In estab-lishing specific surety arrangements, the licensee's cost estimates must take into account total costs that would be incurred if an independent contractor were hired to perform the decommissioning and reclamation work. In order to avoid unnecessary duplication and expense, the Commission may accept financial sureties that have been consolidated with financial or surety arrangements established to meet requirements of other Federal or state agencies and/or local governing bodies for such decommissioning, decontamination, reclamation, and long-term site surveillance and control, provided such arrangements are considered adequate to satisfy these requirements and that the portion of the surety which covers the decom-missioning and reclamation of the mill, mill tailings site and associated areas, and the long-term funding charge is clearly identified and committed for use in accomplishing these activities. The licensee's surety mech-anism will be reviewed annually by the Commission to assure that suffi-cient funds would be available for completion of the reclamation plan if the work had to be performed by an independent contractor. The amount of surety liability should be adjusted to recognize any increases or decreases resulting from inflation, changes in engineering plans, activities per-formed, and any other conditions affecting costs. Regardless of whether reclamation is phased through the life of the operation or takes place at the end of operations, an appropriate portion of surety liability must be retained until final compliance with the reclamation plan is determined. 61

                                         , . . . . - - . .      #        - - - -   , - -    ,, -.   -u.-*

(7590-01] This will yield a surety that is at least sufficient at all times to cover the costs of decommissioning and reclamation of the areas that are expected to be disturbed before the next license renewal. The term of the surety mechanism must be open ended, unless it can be demonstrated that another arrangement would provide an equivalent level of assurance. This assur-ance could be provided with a surety instrument which is written for a specified period of time (e.g., 5 years) yet which must be automatically renewed unless the surety notifies the beneficiary (the Commission or the State regulatory agency) and the principal (the licensee) some reasonable time (e.g., 90 days) prior to the renewal date of their intention not to renew. In such a situation the surety requirement still exists and the licensee would be required to submit an acceptable replacement surety within a brief period of time to allow at least 60 days for the regulatory agency to collect. Proof of forfeiture must not be necessary to collect the surety so that in the event that the licensee could not provide an acceptable replacement surety within the required time, the surety shall be auto-matically collected prior to its expiration. The conditions described above would have to be clearly stated on any surety instrument which is not open-ended, and must be agreed to by all parties. Financial surety arrangements generally acceptable to the Commission are: (a) Surety bonds; (b) Cash deposits; (c) Certificates of deposit; (d) Deposits of government securities; (e) Irrevocable letters or lines of credit; and 62

[7590-01] t (f) Combinations of the above or such other types of arrangements as may be approved by the Commission. However, self insurance, or any arrangement which essentially constitutes self insurance (e.g., a contract with a state or Federal agency), will not satisfy the surety requirement since this provides no additional assurance other than that which already exists through license requirements. Criterion 10--A minimum charge of $250,000 (1978 dollars) to cover the costs of long-term surveillance must be paid by each mill operator to the general treasury of the United States or to an appropriate State agency prior to the termination of a uranium or thorium mill license. If site surveillance or control requirements at a particular site are determined, on the basis of a site-specific evaluation, to be signifi-cantly greater than those specified in Criterion 12 (e.g., if fencing is determined to be necessary), variance in funding requirements may be speci-fled by the Commission. In any case, the total charge to cover the costs of long-term surveillance must be such that, with an assumed 1 percent annual real interest rate, the collected funds will yield interest in an amount sufficient to cover the annual costs of site surveillance. The total charge will be adjusted annually prior to actual payment to recognize j inflation. The inflation rate to be used is that indicated by the change in the Consumer Price Index published by the U.S. Department of Labor, Bureau of Labor Statistics. III. Site and Byproduct Material Ownership Criterion 11-- A. These criteria relating to ownership of tailings and their disposal sites become effective on November 8, 1981, and apply to all licenses terminated, issued, or renewed after that date, t 63

t [7590-01] B. Any uranium or thorium milling license or tailings license must contain such terms and conditions as the Commission determines necessary to assure that prior to termination of the licen'se, the licensee will comply with ownership requirements of this criterion for sites used for tailings disposal. C. Title to the byproduct material licensed under this Part and land, including any interests therein (other than land owned by the United States or by a State) which is used for the disposal of any such 4 byproduct material, or is essential to ensure the long term stability of , such disposal site, must be transferred to the United States or the State in which such land is located, at the option of such State. In view of the fact that physical isolation must be the primary means of l long-term control, and Government land ownership is a desirable supple- ] mentary measure, ownership of certain severable subsurface interests (for example, mineral rights) may be determined to be unnecessary to protect the public health and safety and the environment. In any case, however, the applicant / operator must demonstrate a serious effort to obtain such subsurface rights, and must, in the event that certain rights cannot be obtained, provide notification in local public land records of the fact that the land is being used for the disposal of radioactive material and is subject to either an NRC general or specific license , prohibiting the disruption and disturbance of the tailings. In some rare cases, such as may occur with deep burial where no ongoing site . surveillance will be required, surface land ownership transfer require-ments may be waived. For licenses issued before November 8,1981, t'ie Commission may take into account the status of the ownership of such 64

[7590-01] land, and interests therein, and the ability of a licensee to transfer title and custody thereof to the United States or a State. D. If the Commission subsequent to title transfer determines that use of the surface or subsurface estates, or both, of the land transferred to the United States or to a State will not endanger the public health, safety, welfare, or environment, the Commission may permit the use of the surface or subsurface estates, or both, of such land in a manner consist-ent with the provisions provided in these criteria. If the Commission permits such use of such land, it will provide the person who transferred such land with the right of first refusal with respect to such use of such land. E. Material and land transferred to the United States or a State in accordance with this Criterion must be transferred without cost to the United States or a State other than administrative and legal costs incurred in carrying out such transfer. F. The provisions of this Part respecting transfer of title and custody to land and tailings and wastes do not apply in the case of lands held in trust by the United States for any Indian tribe or lands owned by such Indian tribe subject to a restriction against alienation imposed by the United States. In the case of such lands which are used for the disposal of byproduct material, as defined in this Part, the licensee shall enter into arrangements with the Commission as may be appropriate to assure the long-term surveillance of such lands by the United States. l 65

[7590-01] IV. Long-Term Site Surveillance Criterion 12--The final disposition of tailings or wastes at milling sites should be such that ongoing active maintenance is not necessary to preserve isolation. As a minimum, annual site inspections must be con- , ducted by the government agency retaining ultimate custody of the site where tailings, or wastes are stored to confirm the integrity of the stabilized tailings or waste systems and to determine the need, if any, for maintenance and/or monitoring. Results of the inspection must be reported to the Commission within 60 days following each inspection. The Commission may require more frequent site inspections if, on the basis of a site-specific evaluation, such a need appears necessary due to the features of a particular tailings or waste disposal system. PART 150 - EXEMPTIONS AND CONTINUED REGULATORY AUTHORITY IN AGREEMENT STATES AND IN OFFSHORE WATERS UNDER SECTION 274

3. The authority citation for Part 150 continues to read as follows:

Authority: Sec. 161, 68 Stat. 948, as amended, sec. 274, 73 Stat. 638 (42 U.S.C. 2201, 2021); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841). Sections 150.3, 150.15, 150.15a, 150.31, 150.32 also issued under secs. 11e(2), 81, 68 Stat. 923, 935, as amended, secs. 83, 84, 92 Stat. 3033, 3039 (42 U.S.C. 2014e(2), 2111, 2113, 2114). Section 150.14 also issued under sec. 53, 68 Stat. 930 (42 U.S.C. 2073). Section 150.17a also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Sec-tion 150.30 also issued under sec. 234, 83 Stat. 444 (42 U.S.C. 2282). 66

[7590-01] For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273); $5150.20(b)(2)-(4) and 150.21 are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b)); S150.14 is issued under sec. 1611, 68 Stat. 949, as amended (42 U.S.C. 2201(i)); and $5150.16-150,19 and 150.21(b)(1) are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).

4. In $150.31, paragraph (d) is added to read as follows:

i 9 150.31 Requirements for Agreement State regulation of byproduct l material. a a a a n (d) In adopting requirements pursuant to paragraph (b)(2) of this section, the State may adopt alternatives (including, where appropriate, site-specific alternatives) to the requirements adopted and enforced by i the Commission for the same purpose if, after notice and opportunity for public hearing, the Commission determines that the alternatives will achieve a level of stabilization and containment of the sites concerned, and a level of protection for public health, safety and the environment from radiological and nonradiological hazards associated with the sites, which is equivalent to, to the extent practicab'le, or more stringent than the level which would be achieved by standards and requirements adopted and enforced by the Commission for the same purpose and any final standards promulgated by the Administrator of the Environmental 67

[7590-01] Protection Agency in accordance with section 275. Alternative State requirements may take into account local or regional conditions, 1 including geology, topography, hydrology and meteorology. , i Dated at Washington, DC, this day of , 1985. I For The Nuclear Regulatory Commission. l l . Samuel J. Chilk, Secretary of the Commission. 4 i

1 I i 1 l i i l 68

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l i i 4 l a \\ 4 , i l 1 I l, i, 1 l 4 4 4 . l 1 1 l l1. } .f J l i I i . I I EtlCLOSURE C ! i 1 1 I i } ,. 4 i i. 1 1 4 i i 1 l s 4 1 ( i

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Ursafum M13 Tallinge Radiation Control Act purpose of this Subpart. of tors Pub.L GHot, se amended. (cl Contmlmeans any action to stabdize. Inhibit future misuse of. or reduce emissions or effluents from ursalum byproduct materials. Sampert D-Standards for (d) ucensedsite means the eres Menegement of Uranium Byproduct contained within the bour,dary of a Motortete Pursuant to Section 84 of the location under the com trol of persons Atomic Energy Act of 19% as generating or storing uranium byproduct Amended matettals under a license leeued It m e Appeesseny, pursuant to Section M of the Act. For purposes of this subpart. "Ifoonsed site

This subpart applies to the is equivalent to " regulated unf t"in management of uranitun byproduct Subpart F of Part 264 of this chapter.

materials under Section 84 of the Atomic (el Di,posalside means a site selected Energy Act of 1954 (henceforth pursuant to Section 43 of the Act. dalensted "the Act"), as amended. (f) Disposalarea means the region duttng and following processing of within the perimeter of an licpoundment PART 193-HEALTH AND uranium ores, and to restoration of or pde containing uranium by product Eh TRONMENTAL PROTECTION disposal sites following any use of such materials to which the post <:fosure STANDARDS FOR UMANtUM ANO sites Luder Section 83(b)(1)(B) of the requirements of i 192.32(b)(1) of this THORIUM MILI. TAIUNGS Act. subpart apply. 9 ig3, m ,,,, %g,,,,,,, (g) Reyu/atory agent y meses the U.S. Nuclear Regulatory Commisalon. Sutpart ha b References la this subpart to other (h) Closurepenod means the period of Management of Ursnlum Byproduct parts of the Code of Federal Regulations time beginning with the cessation, with Matertels Pursuant to Section 84 of the are to those parts as coddled on January respect to a weste impoundment, of Atomic Energy Act of 19% as 1.1983. uranium ore processing operstions and Amendeel (a) Unless otherwise indicated in this ending with completion of rrquiremeots subpart, all terms shall have the same specified under a closure r tan. s.a. meaning as in 11tle 11 of the Uranium (1) Closure plan means .he plan 19L30 Applicabdity. Mill Tailings itediation Control Act of required under i 264.112 of this chapter. j total Deftruttons and Crou-references- l'rra. Subparts A and B of this part, or 19L32 Standarde. (i) Entstir gperflon means that land ' Parts 190. 200. 261. and '64 of this surface area of an estettrig surface 19L33 Corrective Action Prograrna. chapur For the purmes of this in34 Mecure dew. i.npoundment on which sign Scsnt l subpart, the terma "weste."" hazardous quantitles of uratuum byproduct 1 g, 9,, waste." and related terms, as used in i materials have been placed pr:or to

Management W W ByprW # 8 Materiale Pursuant to Section 84 of the hTlf PDt a# 8bU uct m ertal.

Atom 6c Energy Act of 1954, as (bl Umns.um bgmduct maten.o / lin32 Sanneares Amenq$ed means the tailinge or wastes produced (e ) Standants for applicotton during toy the estraction or concentration of pmentsity cocrotions andpnor la the 192.40 Applicabelity. utstilurt from any r,re processed and of the closurepenod (tl Surface tot 41 Proviesons, pnmanly for its source material content. Impoundments (except for an existing 192.42 Substitute Proviseurie. Ore bodies depleted by ursritum portion) subject to this subpart must be 19143 mecuve Date. solution entraction operations and designed, constructed. and installed in Aushanty: Sec. rrs of the Atorsic 1:nergy which remain underground do not such manner as to conform to the Act of 1964. 42 U S C. 2022. as added by the constitute " byproduct material" for the requirements of l 264.221 of this chapter.

Federal Register / Vol. 48. Nr.196 / Frid:y Oct:b;r 7.1983 / Rul;s and Regulations 45947 except that at sites where the annual (4) The regulatory agency,in 1192.3a Effective date. precipitation falling on the impoundment conformity with Federal Radi1 tion Subport D shall be effective December and any drainage ares contributing Protectien Guidance (FR. May 18.1960. 6.1981 surface runoff to the impoundme:tt is pgs. 4402-3), shall make ever) effort to less than the annual evaporation from maintain radiation doses from radon Taste A the impoundment, the requiremerits of emissions from surface impoundments 1264.228(a)(2)(iii)(E) referenced m of uranium byproduct materia's as far ._ __ _ _ C

                                                                                                                                         .i f

i 254.221 do not apply. below the l'ederal Radiaten Protection .y (2) Uranium byproduct matertals shall Guides as is practicable at es.;h licensed ow.

be managed so as to conform to the

                                                                                                                    . u.e ,.,ma .n. i site.                                                              -------1

ground wster protection atandard in (b) Standards for opplicot.'on ofter the 1264.92 of this chapter, except that for c/osure;criod. At the end of the closure the purposes of this subpart: period: Subpart E-Standards for (1)To the list of hazardous (1) Disposal areas shall each comply Management of Thorium 8yproduct constituents referenced in l 264.93 of with the clasure performance standard Matertala Pursuant to Section g4 of the this chapter are added the chemical Atomic Energy Act of 1954, as elements molybdenum and uranium. in i 2M.111 of this chapter with respect to nonradiological hazirds and shall be Amended (ii) To the concentration limits designed ' to provide reasonable provided in Table 1 of I 254.94 of this assurance of control of radiological I I' ** chapter are added the radioactivity hazards to This subpart applies to the limits in Table A of this subpart. (iii) Detection mo utonna programs (1) De effective for one thousand years, management f thorium byproduct to the extent reasonably acNevable, matenals under Section 84 of the Atomic required under i 264.98 to estabhsh the and. in any case, for at least :00 years. Energy Act of 1954. as amended, dunng standards required cader 1264 92 shall and following processing of thortum be completed within one (1) year of * "d. d res, and to restoration of disposal sites promulgation. I hde b fo15 wing any use of such sites under (iv) The regulatory agency may uranium hyproduct materials to the atmosphere so as to not exceed an Section 63(b)(1)(B) of the Act. establish attemate concentration limits (to be satisfied at the point of average 8release rate of 20 picoeuries i 192.a t Provts.oce. compliance spectfied under I '64 95) per square meter per second (pCl/mS). The provisions of Subpart D of this under the critena of l 2M 94(b). (2) The requirements of Section part, including Il 192.31.192.32, and provided that after considering 192.32(b)(1) shall not apply to any 192.33. shall apply to thorium byproduct practicable corrective actions. these portion of a licensed and/cr disposal maternal and: limits are as low as reasonably site which contains a concentration of (a) Provisions applicable to the achievable, and that, in any case, the radium.226 in land, averaged over areas e!ement uranium shall also app'y to the standards of I 264 94(a) are satisfied at of 100 square meters, which. as a result element thonum: all points at a greater distance than 500 of uranium byproduct material, does not meters from the edge of the disposal exceed the background level by more (b) Proviuons acrlicable to radon.::: shall also apply 9 radon.2.:0; and area and/or outside the site boundary, than: (c) Provisions appitcable to radium-and (1) 5 picocuries per gram (pCl/3). 2:6 shall alsrs apply to racium 228. (v) The functions and responsibilities averaged over the first 15 centimeters (d) Operettons cosered under designated in Part 54 of this chapter as (cm) below the surface. and those of the " Regional Administrator" 1 192.3 4) shall be cendacted in such a (ii)15 pCl/g averaged over 15 cm ranner as to proude reasonab!e with respect to " facility permitsshall thick layers more than 15 cm below the assurance that th2 annual dove be carned out by the regulatory agency, surface. equaalent does not exceed 25 millirems except that exemptions of hazardous to the whole body. *S mdlite".s to the constituents under 1264 93 (b) and (c) of j 192.33 Corrective Action Programa, thyrotd. and 25 millitems to any other this chapter and attemate concentration !f the ground water standards organ of any member of the public as a limits established under 1264.04 (b) and established under provtsions of Section result of exposures to the planned (c) of this chapter (except as otherwise 192.32(al(2) are exceeded at any discharge of radioactive matenals, provided in i 192.32(a)(2)(iv)) shall not !! censed site, a corrective action radon.200 and its daughters excepted, to be effective until EPA has concurred program as specified in 264.100 of this the general environment. therein. chapter shall be put into operation as (3) Uranium byproduct materials shall soon as is practicable, and in no event i 192.42 Substitute provtstone. be managed so as to conform to the later than eighteen (18] months after a The regulatory agency may, with the provisions of: finding uf axceedance. concurrence of EPA. substitute for any la) Part 190 of this chapter, provisions of i 192.41 of this subpart " Environmental Radiation Protection ene e,anderd applies to de. alternative provisions it deems more Standards for Nuclear Power redonm erierinsi.iieuen et.'.sae,p,tpn.ieir madoens fo, practical that will proside at least an Operations and d**en'd co'e' a** re9w=4 equivalent level of protection for human (b) Part 440 of this chapter. " Ore '** *""8" 'h* 3

Pol **f th' 'a'tre eurface of each disposal ares ever penods of at leest one year. health and the envlionment.

yAning ang gressing point gdurce but ehert compared to 100 years. Redan will come Category: E! fluent (Jmitations fro,n both weeum byptv> dud ina'enale and from l 192*43 gifeCtive date* Guidelmes and New Source' covenne meienale. Redon emissione from covertas Subpart E shall be effective December Performance Siandards. Subpart C. "'"* *nould be estimeted es port et developme e,1983. Uranium. Radium, and Vansdium Ores Subcategory. *l['"'M,'*/*','ll",l;,j','*gdh**','"'

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                                     .f ENCLOSURE D STAFF ANALYSES OF PUBLIC C0tHENTS W

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                     - __                ~        . - _ . - .       ._--_ -.       -    .      .        ..    . . .    -- -
                                -              URANIUM MILL TAILINGS REGULATIONS;                                                    ,

CONFORMING NRC REQUIREMENTS TO E?A STANDARDS i STAFF ANALYSIS OF PUBLIC CCMMENTS ON PROPOSED RULE 4 CHANGES TO 10 CFR PART 40 } 1 i } . i l r j i 4 i l t t i : I Divisfon of Waste 1 w

                                                                                                      .anagement

NMSS Aprf1 1985 i

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2:

TABLE OF CCNTENTS Page

1. INTRCOUCTICN AND

SUMMARY

......................................... I

2. LIST OF CCMMEMTERS............................................... 5

3. G EN E RA L ' ! 5 5 U E S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 . . . . . . . . . . . .

a. Commission Authority and Responsibility Statement ........... 7

b. Procedural and Juri sdictional Is sues . . . . . . . . . . . . . . . . . . . . . . . . 9 .

{

c. S c o c e o f R u l ema k i n g . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 l

d. Comments on 40 CFR 192 .................................. 23 l

Other ....................................................... 1

e. .... 24 4

CCMMENTS CN SPECIFIC PRCPOSED CHANGES TO APPENDIX A 0F 10 CFR 40............................................ .......... 28 I a. b. Introduction .....................................'........... 28 C r i t e r i o n 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

c. Criterion 3................................................. ....... 34

d. Criterion 4 .................................. 35 l

e. Criterion 5................................................ 36 Criterion 6................................................

f.

                                                                                                                                               ........ 44

g. C r i t e r i o n 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . /. . . . . . . . . . . 53

h. Criteria 2, 7, 9, 10, 11 and 12 .............................

55 s APPENDIX A - PRCPCSED RULE FR NOTICE APPEN0!X 3 - CCMMENTS r

                                                                                                                                     .           ~

1 C4/19/S5 11 STAFF ANAL PUBLIC CCMMENTS s

   , . . . . . . . - - -                                   ==-=*o**      ~.***-.*'**                                                                                * ' "

1. INTRCOUCTION AND

SUMMARY

Cn Monday, November 25, 1984, proposed changes to 10 CFR Part 40 were published in the Federal Register for public comment (49 FR 46418). See Appendix A. The comment period originally expired on January 10, 1985 tut was extended un:11 February 10,1985 (50 FR 2293, January 16, 1985). Twenty-four commenters responded with 25 sets of comments (see Section 2). Copies of the responses are included in Appendix B. Six environmental groups, seven states, two Federal agencies, seven industry representatives, one pro-energy (i.e., pro-nuclear) group and one individual resconded. One environ-mental comment provided references only and two industry comments were endorse-ments of other industry c mments only. - . The preposed rule changes were intended to conform existing NRC regula-tiens for uranium and thorium mill tailings to regulations published by the Environmental Protec' tion Agency (EPA). The acticn was taken to c:mply with the

egislative mancate set out in the Uranium Mill Tailings Radiation Control Act (UMTRCA) and NRC authori:ttien Acts. The EPA stancards are contained in Sue: arts 0 and E of 40 CFR Par 192 (49 FR 45926; Oc::cer 7. 1983).

C:mments were offerec on bo:n general issues anc :ne s=ecific enanges in the pr0 posed rule notice anc reflected diverse views.

The general issues addressed :ne Commission'Authcrity and Resconsibility Statement, precedural and jurisdictt0nal issues, the sc:pe of :ne rulemaking,

he validity and merits of :ne EPA stancarc, anc Otner miscellaneous 00:ics.

Commenters en the Commission Authority and Responsibility Statement were diviced. The environmental groups (ECNp, Sierra Club, EPI, and EDF) and EPA disagreed witn all or part of :ne statement. Incustry acvocated an alternate accc:ach relying on general agency roles. One state (WA) su: ported One flexicility in the Statement. CA/12/85 1 10 CFR 40 CHANGES

                                                                          -,    - , - - -v

Precedural and jurisdictional issues raised incluced industry challenging any c:nforming action to an EPA standard that is improper en juriscictional grouncs and delaying ceaforming action until the Tenth Circuit cases are settled (ECNP and ANC). The Sierra Club, E?I, and EPA challenged the legality of not meeting the six month date to conform and c:nforming in two steps. Comments on the scope of the first steo rulemaking included general views that NRC should undertake c:mpletely new rulemaking and a number of s:ecific addi-tional enanges. One environmental group (ENCP) and industry (AMC and Kerr-Mc3ee) urged NRC to undertake new rulemaking to replace both EPA and W sip . Adcitional conforming changes suggested ir.r.luded tailings cover specifications, reliance on active maintenance, and enanges based on the earlier suspension of portions of Appendix A and initial staff recommendations to the Commission. All categories of commenters suggested additional enanges to 10 CFR 40, Appendix A not related to conforming to the EPA standard. Virtually all categories of commenters expressed dissatisfaction with the EPA standards in t0 CFR 192 as either too lax cr'too stringent. A numcer of other miscellaneous :: pics were raised including Agreement State imolementation of the alternatives provision whien tracks the language in Section 34c of the AEA. C:mments :n the accision of the flexibility provisions of Section Sac of the A :mic Energy Act (AEA) :: :ne Introduction generally did n : take issue with the accition itself since it carapnrased the law. States anc environmental greuos ex ressec c:ncerns acout implementa: ten. Scme of :ne incastry c:= enters favored extensive sucpiemental rulemaking to recuce the Ourcen On licensees to cevelce alternatives. C =ents en preposed enanges :o Crf erion 1 on :ne time frame for prc: action reflected c nfusion on goals er ecjectives versus requirements and cisagreement on wnat the times and reliance on active maintenance sncule :e. State anc environmental ce=ents urged times greater snan the 1,000 year EPA design standard on cover icngevity and ne reliance on maintenance. Industry favored a 200 year goal and reliance en maintenance. l 04/13/35 2 10 CFR 40 CHANGES l l l l . ._ . . . _ - . _ . . _ _ . . . . . . _ _ _ - - [ . . . .. . - -

l 1 Comments on the proposed change in Criterion 4 to replace " maximum possible

flood" with " Probable Maximum Flood" reflected divergent views on the appro- l priate design fleed to be used in analyses. Environmental c:mmenters favored

maximum conservatism and industr'y advocated less conservative assumptions : nan either the existing or proposed language. Proposed enanges to Criteria 1, 3, and 5 were al.1 intended to reflect that the EPA standard starts frcm a premise that no seepage from new or expanded impound-ments or degradation of grouncwater are allowed and that all grounewater is to be pectacted regardless of quality or use category. Industry strongly opposed protecting non-usable grounewater, recemmended deferring all grounc-water changes, and argued that the EPA ground water standards are invalid because they fail the Congressional test of comoarability to standards for wastes of similar ha:ard (for example, mining wastes). EPA commented that more distinc-tion between existing and new sites is needed. Commenters objected to incorporation of the EPA longevity and radon design standards into Criterion 6 in general and opposed specific aspects of the pec osec changes. Many of the argu=ents were directed against the EPA standard as being :co lax to adequately protect health and the environment or more stringent than warranted by :ne risks. Several commenters urged NRC to keep 1:s more restrictive racon limit and 3-meter minimum cover. Industry oc;osed including any EPA stancards for norium cyprecuc: material. Several state and environmental c mmenters cojectec c :ne incorpcration of the

EPA footnote qualifying the 10ngevity and racen stancard as a design standard not recuiring c:nfirma:Ory menitoring. Averaging ; revisions anc disregarc of

ne racen from cover materials were also of c:ncern on Criterion 5 changes.

Ccementers cuestioned imclementation aspects of :ne Criterien 3 enange :: ade One as low as practica:le goals for racen releases during Operations. One c mmenter argued for tne current terminology reflected in 10 C.:R Part 20 for kee:ing releases as low as reasonacly achievaole (ALARA) as :ne true EPA inten . 04/13/35 3 10 CPR 40 CHANGES

After c:nsideration of the c:mments, staff c:ncluded that the basic two-step rulemaking approach is still feasible and advisable. The major differences l between the proposed rule and the final rule rec mmended by staf~f are: (1) Addition of an insert to the Introduction requiring consideration of risks and costs in site specific licensing decisions; (2) Additten of an insert to Criterien 5 clarifying the applicability of 40 CFR 192;

                ~(3) Clarification of the general goal of permanent isolation of tailings in Criterion 1; (4) Clarification in Criterien 6 that the raden flux limits are to be met for the effective design life of the reclaimed imcoundment; (5) Clarification in Criterien 8 that doses frcm raden emissions are to be as icw as is " reasonably achievable" rather than as is
                      " practicable"; and (6) Addition of changes to 10 CFR 150 to clarify Agreement State options to adept alternatives uncer Section 274o of the AEA.               .

Ctner mince clarifying and editorial enanges are also recommenced. 04/18/85 4 10 CFR 40 CHANGES

2. LTST OF CCMMENTERS Oceket No. Commenter Abbreviation

1. Ecology / Alert None

2. Environmental Coalition on Nuclear Power ECNP

3. Sierra Club None 4 Enviro. mental Policy Institute EPI

5. Environmental Defense Fund EDF

6. Attorney General State of Illinois IL

7. Colorado Department of Health CO

8. Marvin Lewis None

9. U.S. Department of the Interior COI

10. U.S. Environmental Protection Agency EPA

11. Texas Department of Health TX

12. Utah Department of Health UT

13. Washingten Department of Social and Health Services WA 14 New Mexico Environmental Imorevement Division NM

15. Envirrnmental Defense Fund (see 5 also) EDF .

16. Piedmont Environmental Council PEC

17. Western Nuclear, Inc. WNI

13. Kerr-McGee Corporatten; Kerr-McGee Kerr-McGee Chemical Cerceration and Quivira Mining Cem any

19. American Mining Congress AMC

20. Environmental Policy Institute (see 4 also) E?I

21. Hcmestake Miring Com:any HMC

22. Umetco Minerals Corporation UMC

23. Wycming Department of Envircemental Cuality WY 24 Access to Energy AE

25. Dawn Mining C0m:any Cawn

26. Parsons, Eehle & Latimer for Rio Algem Corporation Rio Algem Copies of the c:mments received are repeccucec in docket numcer order in Accencix 3. The commenters fall into :ne following categories:

01/13/85 5 10 CFR 40 CHANGES . 1

 . . . . . . . . . . ~ . - - - .  . - - -          - - - - -  - - ~ ~ - - -

nvironmental Proener;y Ecology / Alert Access to Energy ECNP Sierra Club E?I Individuals EDF Marvin Lewis PEC - 1 Total 6 Industrial WNI Kerr-McGee AMC HMC UNC Federal Acencies Dawn COI Rio Algcm EPA Total 7 Total 2 State IL C0 TX UT WA NM WY Total 7 04/13/35 6 10 CFR 10 CHANGES

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3. GENERAL ZSSUES

a. Ccmmission Authority and Resconsibility Statement The notice included a statemen.t on " Commission Authority and Responsibility." The statement summarized the Cc= mission's policy en the exercise of its responsibility and authority for mill tailings, including tne ,

authority to approve site scecific alternatives proposed by licensees uncer Section 84c of the Atomic Energy Act. Commenters were divided on this issue. The environmental groups (ECNP, Sierra Club, EPI, and EDF) and EPA disagreed with all or part of the statement. Industry (ANC and supporters) acvocated an alternate approach. One State (WA) supported the statement. ECNP strongly cpposed the statement asserting that NRC is proposing to essentially deregulate mill tailings disposal on a site specific basis. The Sierra Club disagreed with the view that Section 84c gives NRC authority to accreve alternatives to "any or all . environmental standards" and expressed the view that Section 84c enly provices for approval of alternatives to NRC rules. The Sierra Club also cojected to NRC's intent to ignore the explicit concurrence provisions containec in EPA's standard. EPI disagreed witn the statement and arguec :nat Section 84c "is not a new grant of authority for :ne Commission to alter its health and safety or environmental cratection requirements nor to al er its enforcement of the E?A stancarcs." EP! also suggested snat :ne policy statement inferred that EPA concurrence uncer Sections 84(a)(3) or 275 is precludec. In summary, EPI's view is :na: 84c flexicility acclics only to alternate engineering and tecnnical specifications to nese in NRC rules. EPI argued that Agreement States can acopt alternate stancarcs, not NRC, anc :nat NRC's site specific approacn is an attems: :o circumvent ne required fincing on equivalency or more stringency in Section 84c. EOF also cisagreed snat Section 84c grants NRC autnerity to consider alternatives to ne EDA standarcs, 1 EDF argued that :ne language of the statute and ne legislative history succert : its position. The legislative history cited incluced EPA's role to issue general environmental stancards and NRC's role to implement nem as cescribed in Section 84(a) of the AEA. 04/13/85 7 10 CFR 40 CHANGES

E?A also disagreed with NRC's interpretation of Section 34c. EPA stated "Section Sac does not confer en NRC authority to approve or employ alternative standards or to substitute its judgment for EPA's regarding the level of protection necessary to protect public health and the environment. Rather it authori:es NRC to approve or employ licensee preposed alternatives to NRC's own general imolementing requirements . . ." Further, EPA argued that its standard that requires EPA approval cf site specific alternative concentration limits is within its authority, not NRC's under Section 34c. In EPA's view, NRC must also establish specific requirements before it can consider alternatives to them.

          '4A su: ported the need for NRC and Agreement States to review and approve site specific alternatives to standards without EPA concurrence.

ANC and its supporters asserted that NRC is trying to avoid the jurisdic-tienal issue by relying on Section 84c. The AMC advocated an entirely different approach as discussed in the following sections on Procedural and Jurisdictional Issues and Sc:pe of Rulemaking. In AMC's view, reliance on the basic require-ments of UMTRCA with respect to the. jurisdiction of the agencies would be a strenger legal position and eliminate the need :: rely on Section 34c. Resconse: A detailec legal analysis of the merits of :.te E?A objections to the Statement and of AMC's juriscictional arguments is containec in SECY-35-125

dated Acril IC,1985. The C:= mission asked the Office of the General Counsel (CGC) to pre are this informatice paper. The 04:er includes an indecencent review of the legislative his:Ory surrouncing this issue. The respense to

nis issue and the AMC jurisdictienal arguments in the fclicwing section (b. Precedural and jurisdictional issues) are summart:ec from SECY-35-125.

CGC c:ncluced tha: the C:= mission is authorized under section 84c of the AEA to grant exemptions from EPA's standards withou 00:aining EPA's concurrence. The basis for :nis cbnclusion covers four points. First is the belief that "specift: C:= mission requirements" can be ceemed adopted without a rulemaking preceeding. Section 34a(2) requires the Commission to ensure that 04/13/85 8 10 CFR 40 CHANGES

tailings are managed in confermance with E?A"s standards. Section 84a(2) creates a statutcry obliga~ tion by the Ccemission to enforce EPA's stancards indecendent of whether the Ccemission adopts regulaticns whien would clarify hcw the Ccmmission would enforce nose standards. Second, section 84c explicitly states that the NRC may acprove alter-natives which, 3e the extent cracticable, would achieve safety levels equiva-lent to those wnich would be achieved by compliance with NRC's requirements and EPA's standards. Thus, the NRC is authorized to approve an alternative which does not provide the same level of protection of public health, safety and the envi.onment which would be achieved if EPA's stancards were ecmplied with fully. Third, UMTRCA does not use the phrase " implementing requirements." Section 84c refers to only " specific requirements adapted and enforced by the Commission." This pnrase is clearly intended to include all requirements acceted Oy the Ccemission to regulate mill tailings. The source of the adcyted requirements is immaterial to the statutory seneme and may include EPA's detailed standards. Finally, EPA's comment does not effectively rescend to the Ccemissicn's argument, that EPA site specific concurrence in exemetices contradicts the prohibition on EPA's issuance of a :ermit in section 275b.(2) of the AEA. Ccements :uestioning NRC's motives or intent are Offset by the fincings recuired of the Ccmmission in section Sac in orcer :: exercise ne flexibility

accreve alternatives. Assertion of legal rign: cces nct equate : an intent c acuse a rign .

As incicated in the next section, CGC believes na: EPA generally nas actec within its jurisdiction to set generally applicacle envircnmental stancarcs whicn include generic ansite implementation revisions. Thus the AMC view is rejected.

c. Procedural anc jurisdic:fonal issues.

Peccacural and jurisdictional issues raised incluced challenging any conforming action to the E?A stancard en jurf sdicticnal grounds, delaying 04/13/35 9 10 CFR 40 CHANGES - . . . ~ _ . . . _ . . . . . . . . - . - . . - .. . - - - - . - - . . .-- ---- -- - y -- .-- - - 7w , ,

action until court suits are settled, other references to pending proceedings, I objecting to NRC failure to meet the six-month congressional timeframe for conforming, and questioning the two step process. l 4 Tha AMC presented extensive legal arguments on the EPA /NRC juriscictional issue. HMC, UMC, and Rio Algem supported the AMC c =ments in all respects. The AMC comments focused on the following legal goints: Since its ratificatien of Reorganization Plan No. 3 of 1970, consis-tent Congressional policy has been to limit EPA standard setting authority for NRC licensed facilities to " generally applicable standards," meaning standards that are applicable outside site boundaries and that impose no site scacific design, engineering or management requirements. Cengress, in the Uranium Mill Tailings Radiation Centrol Act of 1978 (UMTRCA), accoted the division of jurisdictinn beween EPA and NRC first estaolished in the 1970 Reorgani:ation Plan. EPA's standards are not " generally applicable standards" and are therefore beycnc the jurisdiction of EPA. Consequently, the EPA stancards are a " mere nullity" of no legal force or effect and NRC is not legally bound to conform :: :ne standards. Res ense: The staff c:nsicered ne AMC arguments anc c:ncluced :ne arguments are fundamentally AMC's brief in the Ten n Circuit suit challenging the legality of the EPA standard. NRC is not a car:y or carticipant in :ne Ten:n Circuit proceeding. If EPA is sustainec, :ne arguments are immaterial. If AMC is sustained, then NRC will be required to conduct acditional rulemaking. Staff c es not agree tha: the arguments are sufficient grounds for NRC not to conform a sent resciution in c:ur; anc has proceeded wi:n :nis anaiysis. 04/13/85 10 10 CFR 40 CHANGES

        ,                                            -_                        e q

As noted earlier, CGC concluded that EPA generally acted within its jurisdiction and found the AMC arguments flawed. CGC examined UMTRCA and its legislative history and summarized its findings as follows:

1. Eefore UMTRCA, EPA, not NRC, had primary authority over both the radiological and non-radiolcgical impacts from uranium mill tailings;

2. During Congressional deliberations over UMTRCA, NRC attempted to reduce substantially EPA's authority over radiological hazards of mill tailings by limiting it to EPA's " traditional" authority under Reorgant:ation Plan No. 3, i.e., authority to premulgate only generally applicable, non-site specific radiologicai standards, applicable only outside the boundaries of the tailings sites;

3. EPA opposed the NRC's attempt to transfer to itself EDA's authority to regulate mill tailings. EPA's efforts were partially successful and resulted in a Cengressional ccmprcmise which precluded EPA frem premulgating site specific standards but which did not restrict EPA to standards applicable only outside site boundaries. EPA was also given concurrence authority over NRC regulations for controlling non-radiological ha:ards.

t. Except for ene instance, EPA acted within its jurisdiction under UMTRCA in setting environmental standards for managing radicactive emissions anc ha:arecus enemical wastes from uranium mill tailings; and

5. EPA- exceeded its jurisdiction by stating tna its concurrence culd ce recuirec cefcre the NRC could grant site scecific case-by-case exemotions from NRC regulations for implementing EPA's stancards. 'de believe that sucn a concurrence role by EPA also centradicts the 1983 amencment to UMTRCA wnien acced Section 84c to the Atemic Energy Act.

The Sierra Club, EPI, and EPA commented en the legality of not meeting the 6 month Congressional manda:e to conform by Acril 1, 1984 and conforming in two steps. The Sierra Club, EPI and EPA asserted that NRC's action is illegal and does not meet the explicit intent of UMTRCA. The Sierra Clue also inferred that a fcur year rulemaking on grounc water delays compliance with EPA's ground water 04/18/8E 11 10 CFR 40 CHANGES i f ( .

requirements. E?? argued that NRC had ample warning, time, and regulatory base to fully c:mply in 6 months for both groundwater and non groundwater aspects. As a minimum, EPI argued that interim rules to conform should have been pub-lished. EPI objected to NRC's position that conforming to EPA's ground water standards should be combined with developing a rule that fully meets the mandate in Section 84(a)(3) to have general requirements tnat are comparable to EPA's requirements for similar materials regulated under the Solid Waste Disposal Act. EPA argued that the EPA standards in 40 CFR 192 already meet this require-ment to be c mparable anc even if they did not, NRC should conform to the ! grcund water standards in 40 CFR 192 immediately. EPA stated that NRC should conform quickly to all of the 40 CFR 192 standards, including groundwater, in the first rulemaking. EPA argued that the same nondiscretionary approach should be used and that the second rulemaking can fulfill the requirements of Secticn S4(a)(3). Res:ense: , The decisions regarding whether and how NRC should conform to the EPA standards involvec c:melex legal, jurisdictional, anc policy issues. The Ccemission carefully considered the implications of several alternatives and its autacrity and responsibilities Oefore deciding on the course of action evidenced by ne notices of pre:0 sed rulemaking and acvance notice of pec:csed rulemaking. The c:= centers are c:rrect that Congress intendec c:nformance to be sufff-ciently straign fonard : ce c:=pleted in 6 mentns and so statec in the legis-lation. However, the legislation die not anticipate :ne ::mplex nature of :ne E?A stancard or tne direct effectiveness on licensees beginning Cecemeer 6,1983. Congress also did not imeese any penalty if NRC failec :c m.eet :ne 6 men:ns as it cic with the loss of autnerity if EPA failec to meet its Cc ::er 1, 1983 date. Ne health and safety or environmental impacts have resulted or will result from delay er lack of interim rules since staff believes that NRC and the States are recuired to implement and enforce the EPA standards under Section 275d of

tne A: :mic Energy Act in :ne interim until final conforming regulations are in 04/18/35 12 10 CFR 40 CHANGES

l place. NRC has so informed its licensees and Agreement States and is imple-menting the standard. I The scope and timing of ne second step rulemaking is still under censi-deration. Comments on the ANPRM are being analyzed. A simple rule enange to incorporate the specific ground water protection provisions of 40 CFR 192 is one option being considered. However, such a, change in secpe to the present action would probably require a reproposal to allow public comment and would delay removing conflicts and inconsistencies. Thus staff rejects EPA's comment. The insert developed for Criterien 5 dealing with 40 CFR 192 ground water protection will clarify tne situation in the interim. The ECNP incorporated by reference the full records of the NRC's Consolidated Reac:cr Preceeding and Three Mile Island, Unit 2, Operating License Proceeding. The ECNP's focus is on raden risk issues in the proceedings. They also incorpo-rated a number of documents related to their suit against the EPA standard. C0 noted that ne State is a party Oc litigation on the EPA standards in the U.S. Court of Appeals for the Tenth Circuit. Kerr McGee ackncwledged the pending

tentn Circuit litigation against the NRC rules in one case and against the EPA standards in a seconc. AMC also provided documents related to the Tenth Circuit suit agains: the EPA stancarc and mace frequent reference to issues in that creceecing.

Rescense: C:ner : nan snewing ne active legal climate surrcuncing oc h NRC and E?A rules anc :ne general dissatisfaction in many secters, these references have no cearing en :ne conforming action at hand. In the absence of specific citations to matter in :nese volumincus referencec cccuments, the NRC nas no obligation to como througn -hem for material arguaoly germane to :nis rule-making preceeding. The ECNP and AMC anc its sucporters urgec :nat NRC delay action until the legal cnallenges to :ne EPA stancard in the Tenth Circuit are settled. AE urgec NRC no: to conform to ne E?A standard until it is revised to accress

                         " ne genuine hazarcs pesec ey racen."

04/13/E5 13 10 CFR 40 CHANGES

   . . . .   . .... _ _.. ..         . . . .       . . - . . . . _   . . _._. _.     - .~. - . - - ~ . . - - . .       -  -             --- --

Res:ense: Since timetables for court action are highly uncertain anc because the EPA standards are being implemented and enforced, staff sees no reason to delay c:nformance by rule. Obviously, if court action sets aside all or part of NRC's or EPA's rules, additional rule changes will be requitec. The Ccmmission believes the EPA rules would have to present a clear and real threat to public health and safety for NRC to unilaterally set them aside. Environmental argu-ments are based on hypothetical effects and industry arguments en jurisdiction, costs, and practicality. None of the comments suggested a threat to health and safety in implementing the EPA rules or going forward with the conforming rule changes.

c. 5:: e of Rulemakine C mmenters offered a wide range of views on the scope of the rulemaking.

Several c:mmenters (e.g., EPA) ebjec ec to the two stec approach. Reasons cited included legal enes surroun' ding the Congressional mancate as discussed in the creceeding section (EPA, EPI, and the Sierra Cluo) and licensee / applicant confusion in :ne interim (NM). ECNP, Kerr-McGee, anc ANC urged NRC 0 uncertake ince endent new rule-making. ECNP acv0cated more restrictive rules using :ne E?A standard as a minimum casaline On racon control anc issue regulaticas sna: " fully pr0:ect the pubif e for :ne curation of tnese wastes". ECNP advocatec ccm lete revision of 10 CFR Far: 40, A pendix A, as issued in Ccto er, 1980 :: provide more protec:icn frem radon and referenced the Consolidated Racen proceecings for details On deficiencies. The AMC argued that NRC must uncertake a completely new incepencent rulemaking to reolace both ne EPA and NRC rules because EPA's standarcs are not acequately suppor:ec by analysis relating costs and risks and are cutsice EPA's jurisdiction and therefore null and void and because NRC nas provided no analysis estac11shing that Appendix A of Par 40 re;utrements are reasonably related in terms of cost, risks, and benefits. AMC advocatec a scope and a :rcaen for :ne new rulemaking in wnicn NRC would (1) focus on l stacili:ation of tailings for a reascnable period of time instead of fecusing 04/13/35 14 10 CFR 40 CHANGES I 1 ,. . , . . . , . . . . . - . . . . . . ..---..---..--~----*e-~----- ~ ~ - ~ ~ "~ ~ ~ ^ ~ ~ '*!

on radon emissions, (2) assure, after public c mment, that the costs of require-ments are reasonably related to risks, and (3) provide for exolicit distinctions between existing and new sites and allow maximum site specific flexibility. Kerr-McGee expressed similar views on the need and basis for NRC action. A

key point in the AMC and Xerr-McGee arguments against Apoendix A was the 1983 Pub.L. 97-415 addi icn to Section 84a(1) of the AEA on risk and costs. The addition began with the word "taking" in revised,Section 84 a(1):

                           "a.       The Ccmmission shall insure that the management of any byproduct material, as defined in section 11e.(2), is carried out in such manner as -

(1) The Commission caems appropriate to protect the public health and safety and the environment frem radiological and nonradiological hazards asscciated with the processing and with the possession and transfer of such material taking into account the risk to the oublic health, safety, and the environment, with 'ue d consideration of the ec0 nemic costs anc such other factors as the Commission determines to be accrocriate." (Em:nasis supplfed). The industry arguments imply that this acdition mandates a total reconsi-ceration anc revision of NRC rules. Industry also noted the depressed ecencmic state of ne industry anc early stabilization plans that have resulted since

ne 1930 rule.

The incustry arguments on site specific flexibility and existing site cistinc icns .ere tased en Section 34c and legislative nis:Ory. Resconse: EPA developed and issued :ne stancarcs in 40 CFR 192 uncer ne following autnerity anc mancate in Section 275b(1) of the AEA:

                           "b.       (1) As soon as practicable, but not later nan Cc :cer 31, 1982, the Acministra:ce shall, by rule, procese and within 11 months thereafter 04/13/35                                        15                      10 CFR 40 CHANGES

premulgate in final form, standards, general acplication for the protec-tion of the public health, s'afety, and the environment frem radiological and non-radiological ha:ards associated with the processing and with the possession, transfer, and d'isposal of byproduct material, as defined in section lle.(2) of this Act, at sites at which ores are processed primarily for their source material content or which are used for the disposal of such byproduct material. In establishing such standards, the Acministrator shall consider the risk to the puolic health, safety, and the environment, the environmental and economic costs of applying such standards, and such other factors as the Acministrator determines to be appropriate." NRC is conducting the present action uncer the mandate in Section 275f(3) of the AEA: .

           "(3) Not later than 6 months after the date on which the Administrator pr:mulgates final standards pursuant to subsection b. of this sec ten, the Ccmmission snall, after notice and opportunity for puolic c:mment, amend I

the Cc:c'er c 3 regulations, and adopt such modifications, as the Ccemission caems necessary to conform to such final standards of the Administrator." Two :oints are c! ear in Section 275. Cne is EPA was ex: licitly enarged to censicer risk anc economic costs. The seconc is that no mention of an incepen-cent risk / economic cost fincing is explicitly required Of NRC in c:nforming. EPA nas the leac responsibility and staff believes it must assume that EPA met the mancate. Staff notes that AMC's arguments on risk are cirected rimarily at the EPA stancard and seem to reflect its legal crief for ne Tenth Circuit. NRC's coligation to consider risk anc ec:nomic c:s:s was adced to Sec-tion 34a(1) as noted earlier. Section boo (1) requires NRC to insure that the management of the raciological and nonradfological hazarcs frem tailings protects the puolic and environment. Staff views the mancate in 84a(1) to cover all aspects of implementing the EPA standarc and Apcendix A. The mandate should imcact all site s:ecific licensing decisions including routine actions, 34c al:ernative requests, and alterna:e concentration limit cecisions. Staff 04/13/35 16 10 C.:R 40 CHANGES

believes that it can fulfill this mandate without further rulemaking to make Appendix A either more or less restrictive. Staff also believes that the Congressional intent for site specific flexibility and distinction between existing and new sites can be me't in site specific licensing decisions based on 84a(1) and Section 84c. Consequently, Section 84a(1) snould also be emphasi:ed in Appendix A to make it clear that the NRC will in fact consider risks and economic costs and site specific needs in genera,1. An insert to the Introduc-tion following the proposed insert on Section 84c would explicitly emphasize this point. Other factors relating to the staff position include the general ALARA mandate appitcable to all exposures and releases and industry failure to demonstrate that generic relief is appropriate or needed. Flexibility to i consider site specific practical problems is the whole thrust of Section 84c. Rulemaking tailored to the problems at one or two sites is a counterproductive use of time and resources. Industry comments on the depressed state of the industry are valid and licensees are faced with early reclamation. However, staff believes that this situation only emphast:es the site specific decisions neeced and does not support the need for generic rulemaking. Early reclamation will imcact practicable aspects and cos't considerations but on a site scecific basis. The insert recommenced below paraphrases Section 84a(1) anc clariffes that imolementation of "practicaole" will be consistent witn the intent of See:1on 54a(1) and current Ccmmission policy in 10 CFR 20.1(c). The second sentence i carapnrases :ne meaning of ALARA in 10 CFR 20.1(c). NM incicatec that decisions on licensee's recla=4 tion plans are imcactec by :ne two-step approach since it postpones naving " definitive Feceral stancards." ' Licensees can't know "to wnat stancarcs :ne plan is requirec to conform." l Response: !

                               .                                                                        l Staff is sympatnetic witn the appearance of regulatory uncertainty caused by the two-step rulemaking. However, when :ne first step is completed, all conflicts will have teen removec (e.g., 2 versus 20 picoeurie flux limits) and 04/13/85                                                    17                 10 CFR 40 CHANGES

decisiens on grounccter can be made based on the basic nondiscretionary provisions of 40 CFR 192 since it applies directly to New Mexico licensees whether or not the State has conformed to NRC's rules or the EPA standard. IX noted that " point of ccmpliance" was not included in the proposed changes and asked if this was intentional. Resconse: Yes. " Point of compliance" is a concept in the EPA ground water protec-tien stancards and is therefore beyond the intended scope of this rulemaking. The insert to Criterion 5 shculd help clarify this point. Ccmmenters advocating specific suggestions to expand the scope of the pecposed rulemaking generally fell into three categories-those advocating: (1) additional changes needed to conform to the EPA standards, (2) additional changes that would make 10 CFR Part 40 more explicit or =cre protective of public health, safety, and environment but that are not directly related to conferming to .the EPA stancards, and (3) additional changes that would make Part 40 less restrictive er conform to the collective intent of Cengress expressec in various legislation and hearing records rather than the EPA stancards. Comments in the first category will be respenced to. Comments in the latter two categcries will ce considerec along with c:mments received on the accom::anying ANFRM. However, they will be summari:ed in this section.

         ~he overall flavor of the c:mments expressed a general cissatisf action with

to:n NRC's and EPA's regulations for a wide range of reasons.

EOF, EPA, and industry suggestec additional enanges :na: snould be mace to c:nform to :ne non grouncwater previsions of the EPA stancard. EDF commented tha: :ne Ccemission should recuire that cesign calculations for c: vers incer-pcrate a cesign margin to ex= licitly account for enanges in moisture content and por:sity, external ercstenal forces, and internal chemical reactions. Such requirements are neeced to meet the reasonable assurance provision of the EPA raden and longevity stancard over the long term. ECF presented tecnnical arguments en :ne critical role playec by cover moisture, the merits of multi-layered covers, anc concern for salt migratien fr:m tailings to the cover. EPA C4/13/35 18 10 CFR 40 CHANGES l

also suggested considering additional cover spccifications but did not identify any specific topics. 9

Response

Staff generally agrees that the type of factors that EDF identified are important to consider in evaluating expected cover performance. In fact, the staff uses the c:mputer code for multi-layers referenced by EDF in its calcula-tions. However, such factors are very site specific and represent a level of detail that NRC normally relegates to guidance or procedural documents. It is also difficult to speculate on the number and importance of all factors which might impact design at a specific site. The design margin recommended by EDF is essentially applied in the staff's use of conservative material parameters in the site specific evaluation of the design of soil and rock covers. EDF also urged that an active monitoring program for tailings cover stabil-ity be added to the Ccemission's ru'as. The EDF recommended program would last for decades until the cover has demonstrated its stability or remedial action has been taken and the remedial act.icn's. effectiveness affirmed. ' Respense: Criterien 12 of the Commission's rules has a minimum requirement for annual ins:ections by the custodial government agency to confirm the integrity of stabili:ation and the need for any maintet.ance. Criterien 12 also has an 0:tica for more frequent inspections. Any monitoring needed prior to transfer t0 the government agency can be included en a site s:ecific basis in the reclamation plans. Industry ecmments (WNI, AMC, UMC) that reliance on active maintenance shculd be allcwed are adcressed under Modification 2(a) cnanges to Criterien 1.

            'aNI and AMC rec:mmended a numcer of changes based on the C0mmission's earlier suspension action and changes originally proposed by staff in SECY-53-523. The rec:mmended changes and rationale for action were essentially the same as resented in the suspension notices and SECY-83-523.                        Little or l       04/13/35                                               19                         10 CFR 40 CHANGES

no new information was provided. Examples include deletion of below grade or equivalent as the prime option in Criterion 3, deletion of prescriptive require-meq:s in Criterion 4, and deletion of radium content restrictions en cover materials in Criterion 6. Kerr-McGee also recommenced deletion of the radium content requirement.

Response

Since the additional conforming changes suggested by WNI, AMC, and Kerr-McGee suggested offered no new bases not already considered and rejected and no sucstantive succorting information on why they are needed on a generic basis versus site specific treatment, they are rejected for the first step rulemaking. A wider scope of changes was considered by tne Commission and rejected before publication of the proposed rule, en the ground that, requirements established through extensive rulemaking cannot be set aside merely because they may not be required. The intent of this action is nondiscretionary conforming changes to eliminate conflicts and inconsistencies, add imposed standards or Congressional j direction, or make minor editorial or clarifying changes. Industry comments were mainly statemerr:s or claims based en "may not be required" and would require extensive new rulemaking and are thur considerec cutsice the scope of the present action. A num::er of ce=ents procosed scecific ce general cnanges that are not cirectly related c conforming to the E?A standard ::ut would make Accendix A more explicit er crc ective. The follcwing discussion summari:es these ce=ent s . Ecclegy/Aler suggestec using 5 en rock slabs as cover material. EDF urgec :ne Commission to adcot specific requirements on wnen final stacili:a-tion mus: take place, on interim sta::ilization for closed mills, en aedition of fluids during closure, on use of cust suppressants during closure, ar.d on phased closure during coerations. EDF also acvocated mandatory state-of-the-art waste treatment and ccerations as reflected in conceptual proposals preparac for pctential develo:: ment of mining and milling in Virginia. Lewis stated snat numerical criteria in Criterion 5 would make the stronger ground-water cretection recuirement more enforceable. DOI suggested amplification of l l 04/19/85 20 10 CFR 40 CHANGE 3

Feded Regi2t;r / Vol. 49. No. 228 / Monday. November 26,1m / Proposed Rules 46423 human and animal trafGc or by natural soils are to be rehed upon for seep.sve parameters such as permeabihty shall nut be process. and to preclude undercuttmg and control'ests shall be conducted with determinied on the basis oflaboratory piping: representatne tailings solutions and clay an ly sis of samples . lone: 4 sufGcient

      . Shape. size. compositian. und aredelion    matenals to conf rm that no significant           amount of field testmg te a , pump tests) sh.li of rock particles (esceptine beddine matenal     detenoratinn of preme4hihty or stabWy             be condutled to assure attual field properties averale particles site shall be at least cobble  properties mdl occur with centinous esposure      are 4Jeyu.siely understood lestmg sh.sil be see or greaters;                                 of clay to tailings solutions Tests anali ce run conducted to .llow estimating themesurption

Reck cover thickness and zonmg of for a sufririent penod of time to rnral any attenu iion properties of underipng soil .nd particles by size: and effects if they are stamx to occur On some nu k.
Steepness of underlymg slopes r.ases detennration has been obsened to . t,ocai,on estent. quehty. c p.iuly end individual rock fragments shell be dense # cur rather rapidly af ter about nme months curreni uses of any groundwater et and ne r sound. and resistant to abrasiun. and shall be of esposurell. the site.
free from cracks, seems. and other defects * %11 process designs which proude the Furthermore. steps sh.ll be taken during that would tend to unduly increase their manimum practicable recycle of solutions sto<.kpiling of ore 19 minimize penetration of destruction by water and frost actions Weak, and conservation of water to reduce the net radior.uchdes mio underlymg soils: suitable Inable, or laminated saareg.te shall nos be input of hquid to the taihngs impoundment. methads mclude hning and/or compaction of used.
Dewetenne of Leibres by process are storge .ren Rock covenns of slopes m.y not be deuces and/or m. situ drammae syvems l At Cnterion trin cases where weste required where top cosers are very thick lon new s.tes, teilmgs shall be dewaiered by 4
bvproduct meienalis to be permanently the order of 10m or gre.ter). impoundment drainese system installed at the bottom of the disposed an certhen cover shell be placed slopes are very genue (on the order of 10 h Iv impnundment to lower the phreetic surface oser taihngs or wastes at the end of milhng or lessl: bulk coser matenals h.se mherently and redure the dming head for seepage.

operations and, the waste disposal ares shell fasorable erosion resistence cherestenstics. unless tests show tghngs are not amenable be closed m accordance with a design' and. there is neghg.bie dramage c tchment to such a system. W here in-situ dewaierms is which sh41 provide reasonable assurance of 4rea upst eam of the pile and good wmd so be conducted. the impoundment bottom protection es described m pomts 14) and (b) shall be gratted to assure that the drams are control of radiciossal hazards to:(i) Be of this Cntenon. at a low pomt. The drams shall he protected dkWbLMmamhnu Furthermore. all impoundment surfaces by suitabte nier metensis to assure that rea,,sonably shall be contoured to avoid areas of drams remam free running The dramage ,, ,,, ,00 years.achiev able. and (nl lunitand. in any releases of case. for concentrated surface runoff or abrupt or system shall also be adequately sized t rudon-222 fmm uranium byproduct maten41s. sharp changes in slope gradaent. In addition assure good dramage). and radon 220 from thonum byproduct to rock cover on slopes. areas toward which

Neutrahzation to promote immobehastion metenals. to the atmosphere so as to not surface runoff might be directed shall be well of domic substances. esceed an average 8 re4ece rate of 20 protected with subst4nt:4l rock cover inp W here groundwater impacts are occurnng picomries per square meter per second (pCi/

rap). In addition to providing for stabihty of at an custmg site dae to scepage. action shall m y in computmg required taihngs cover the impoundment sysiem itself. overAl be taken to alieviete conditions that lead to thicknesses. moisture m soils in escess of stabihty. eroa.on potential and escessive saepage impacts and restore 4 mounts found norm 4!Iy m similar soils in geomorphology of surroundmg terram shil groundw ter quahty. The specific seepage 5milar circumstances shall not be be esahiated to assare that there are not control and groundwater protection method. C0"dered Direct gamma esposure from the ongoing or potential processes. such as gul!y or comb nation of methods. to be used must tashngs or westes should be reduced to erosion. which would lead to impoundment be worked out on a site specific basis. bathground levels ne effects of any thm matabihty. Technical specifications shall be prepared to 'Y"'h'c layer shall not be taken mto (e) The impoundment shall not be located control n.stelletion of scepaste contrcl dCC0W"' '" d""**'eq the calculated radon near a cap.ble fault that could cause a systems A quehty assurunce testing. and ethelation level. If non-soil matenals are mammum credMe earthgaake larger than mopection program. whah includee proposed as covn metenals. H must be that which the impoundment could superusion by a quahf ed eneineer or &mmMM h ud memb d M reasonably be espected to withstand As scientist. sh.!! be estabbsbed to assure the crack or degrade by differential settlement. osed in th:s entenon. the term " capable fault" speofications are met. weatherms. or other meenanism. oser long. has the same meanmg as defined in section in suppoet of a taihngs disposal system '"5 hme intuvals. Illigl of Appendia A of 10 CFR 100. De term proposal. the apphcantloperator shall supply 'M "'I* C ' CO * "

d "'! 8 0 ' *' * '"

  "masimum credible ear *hquake" means tha         information concernmg the followmg.               the top three meters) shall not include waste earthquake which cause the maumum

The cheinical and radioactive or rock that contams elevated levels of ubratory g ound rnotion based upon an charactenstics of the weste solutions radium. soils used for near surface coser evaluanon of earthquase potential one charactenstics of the underlymg soil must be essentially the same. as far as considermg the regional and local geology and geolog'c formations particularly as they radioactivity is concerned. es that of 4nd seismology and spec 2fic charactenstics will control transport of contaminants and surrounding surface soils This is to ensure of local subsurface matenal solutions This shallinclude detailed that surface redon esha! tion is not (f) ne impoundment. where feasible. information concerning estent. thick ness. gnificantly above background because of should be designed to incorporate features uniformity. shape, and onentation of the cover merenal itself.

which wil promote deposition. For esample. underlyma strata Hydraube gradients and The design requi ements m this entenon design features which promote deposition of conductiut.es of the various formations sh ll f r I ngeury and control of radon releases sediment suspended m any runoff which be determmed. shell apply to any portion of a hcensed and/ flows mto the impoundment area might be his informanen sha'l be 24thered from or disposal site unless such portion contains utikred: the obiect of such a design feature bonrgs and fieid survey methods taken 4 concentration of radium m land. aseraged would be to enhance the thickness of coser within the proposed impoundment area and user tirne. m surround >rg areas where co-temin .nts The c.nd.rd app: :s :o Jes 4n Wm:0t na for Cntenon $~The followirs sh41 be rmgnt m. grate to groundweier he r edan eherinc.1:.%n of n ppropwe3 oes.saed considered mformation sa:hered on boret . 's sh4'l rour is noi mwnd

Instalianon of bottom kners IWhere mc!ade both reclog:c and geos n sicallogs m 'TNs 4* erase sh*U epob io *e en'.r. nif.ce of synthetac hners are used a leakate detecnon wfficient number and degree of a *$Po'.t ern swe tmde of at :ns' 1 >nr sy stem shall be mstalled immediately below sophistication to allow determmmg bu sw compamd to 1m pm pacom will come the hner to ensure maior failures a e detected san.6 cant discer tmuities. fractures. and fea bo n uramum enkt ma'ena's and M if they occur. This is m add:non to the channeled deposits of high bydraubc " ""**'"**"'" * *"" * " " '

groundwater enonitorang proa am cordac'ed condactiuty if field survey methods are [c'fo$*r'e'p' en f ealh s1e e s end d ho e er as prouded m Cnierion 7. W bere clay hners used they should be m add: tion to and appas only io masiors fram waran ovproact are proposed or relatively thm. m situ cl4y cahf.brstad with borehole logg ng Hydrologic m.ier.;s to ths enospriere a,

46422 Federal Register / Vcl. 49 N . 58 / M nday. N:v;mber 28, 1984 / Proposed Rul:s Section 40.7 also issued under Pub. L 95- take into account local or regional conditions. (that is, w here the need for any erectally 801, sec.10.92 Stat. 2951 (42 U.S.C 5851). includmg geology. topography, hydrology, constructed retention structure is ehmmated). Section 40.31(g) also issued under sec.122. 66 and meteorology. The Commission may find The evaluation of alternative sitee and Stat. 939 (42 U.S C 2152). Section 40.46 also that the proposed alternatives meet the disposal a ethods parformed by mdl issued under sec.164. 68 Stat. 954, as Commission's requtremente if the alternatives operators m support of their proposed tadmgs cmended (42 U.S.C. 2234). Section 40.71 also will achieve a level of stabdizanon and 6eposal program (provided in apphcants' issued under sec.187. es Stat. 953 (42 U.S.C. contamment of the sites concerned. and a ennronmer.tal reports) shall reflect eenous 2237). level of protection for pubhc health, safety. consideration of this 6sposal mode. In some For the purposes of sec. 223. 68 Stat. 958. as and the environment from rediological and instances. below grade disposal may not be amended (42 U.S C 2273): ll 40.3. 40.25(d)(1). nonta6ological hazards associated with the the most environmentally sound approach. (3). 40.35(aHd). 40 41 (b) and (c). 40.48. 40.51 ettes. which is equivalent to. to the extent such as m:8h t be the case if a groundwater (:) and (c) and 40 63 are issued under sec. practicable. or more strmgent than the level formation is relatively close to the surface or telb. 68 Stat. 94a. as amended. (42 U.S.C. which would be achieved by the not very wellisolated by overlying sods and 2201(b)): and il 40.25 (c) and (d) (3) and (4). requirements of this Appendix and the rock. Also, geologic and topographic 40.26(c)(2). 40.35(e). 40.42. 40 61. 40.62. 40.64 standards promulgated by the Environmental conditions might make full below grade end 40.65 are issued under sec.181o. 64 Stat. Protect:on Agency in 40 CFR Part 192. bunal impracticable: for example. bedrock 95a as amended (42 U.S.C. 2201(o)). Subparts D and E. may be sufficiently near the surface that I. Techniec/ Cnteno blasting would be required to excavate a Appendix A--{ Amended] disposal pit at excessive cost, and more Cntenon 1-In selecting among alternauve

2. Appendix A to Part 40 is revised to suitable alternative sites are not avadable.

tathngs 6.posal sites or tudsma the where full below grade bunalis not rend as follows: adequacy of eusting tailms sites, the site features, which wdl determm' practicable the size of retention structures. Appenh A to Part Mte f !! and size and steepness of slopes of Relating to the Operation of Uraniuzn fr{*d ob eIts e fi ofaNgSeS1 ass ciated exposed embankments shall be and Mills and the Disposition of Tailings or associated contammants from man and the ****'dDY*"*"'******"'"* Wastes Produced by the Extraction ot environment for 1.000 years. thereafter.

                                                                                                                        *D     h a         epp    a
                                                                                                      *,,*',',"'g"',*[,"io s               g gc,  g Concentration,of Sourca Matertal,Frotn            without ongoing actne memtenance shall be Orne # - m Primarily for Their                    considered:                                         at a site. In these cases. it must be

Remoteness from populated areas: demonstrated that an above grade disposal Source Material Content program will provide reasonably equivalent Introduction as th y bu o co ued isolauen of the tadings Nm nauiral uosional Every applicant for a heense to possess immo'o itization and isolaton of contaminanta IO'C"'

and use source material in conjunction with from groundwster sources: and Cntenon 4--The following site and design ur:ruum or thonum mdimg. or byproduct

Potential for mmimizing erosion. entena shall be adhered to whether tadings mitenal at sites formerly associated with 6sturbance. and d.spersion by natural forces or westes are disposed of steve or below such mdling. is required by the provisions of over the long 'erm. grade.

I 40.31(h) to include m a hcense apphcat on De site sele,: tion process shall be an (a) Upswam rainfall catchnt areas must proposed specificauons relatmg to mdimg o;nmaration to the maximum extent be nummized to decrease erosion potential operations and the 6sposmon of tadmgs or reasonably achievable m terms of these and the size of the Probable Maximum Flood wastes resulting from such mdhng actmues. features. which could erede or wash out sections of the This appendix establishes technical. In the selection of 6sposal sites. pnmary tadmgs 6sposal area. firuncial. ownersh:p. and long-term site emphasis shall be g:ven to isolation of (b) Topographic fesiures should provida surveillance entena relatmg to the sitmg. tailmgs or wastes, a matter having long-term good wmd protecuon. operanon. decontarnmation, impacts, as opposed to consideration only of (c) Embankment and cover slopes shall be dec mmisstorung. aod reclamat:en of auMs short term converuence or benefits. such as relatively f st after final stabihzauon to end tadmgs or waste systems and sites at emimizauon of transportanon or land emimize erosion potential and to provide which such md!s and systems are located. As acqumuon costa. While isolanon of tadings conservatise factors of safety assunng long-used in th:s appen6x. the term "as low as is will be a function of both site and engmeenna term stabihty. The broad obiective shuld be re:sosably achievable" has the same design. overndmg consideration shall be to contour fmal slopes to grades which are as misrung as m i 201(c) of to CR Part 20 of given to sitma features given the lorg. term close as possible to those which would be this chapter. nature of the tadings hazards. provided if tadings were disposed of below In many cases l'embdity is provided in the Tadmgs shall be dispcsed of m a tnanner grade; this cou!d. for example. lead to slopes entina to a!!cw schievmg an optimum that no scrive maintenance is required to about to honzontal to 1 vertical (Ich.1v) or tedmgs 6sposal program en a site-specific preserve con 6tions of the site. less steep In general. slopes should not be bisia. However. in such cases the obiectives. Cntenon 2--To avoid proliferation of sma 1 steeper than about Sh:1v. Where steeper technical alternanves and concems which wute 6sposal sites and thereby reduce slopes are proposed. reasons why a slope must be taken mto account in developmg a perpetual survedlance obhgations. byproduct less steep than sh tv would be mpracticable tadmgs program are idenufied. As provided material from m situ extraction operauons, shou:d be prouded, and compensatmg by the provisions of I 40.31(h) apphcations such as residues from soluuon evaporation er factors and conditions which make such for hcenses must clearly demonstrate how contammated convol processes. and weste, slopes acceptable should be identified. tm entena have been addressed. from small remote above ground extraction (d) A full self-susta.nmg vegetative cover l' The specifications shall be developed operauons shall be d sposed of at eustmg shall be estabbshed or rock cover empioyed considenng the expected full capacity of larse mdl taihngs disposal sites: unless. to reduce wind and water erosion to todmgs or waste systems and the hfetime of considenng the notare of the wastes, such as reghgible les els. mdl operations. Where later expansions of their volume and specific activity, and the Where a full vegetauve coveris not hkely systems or operanor:s may be hiely (for costs and enuronmentalimpactr of to be self sastammg due to chmanc or other example. where large quantities of ore now transportir. the wastes to a large disposal con 6tions. such as m semi and and and m:rginally uneconomical may be stockpded). s.te. such offsite disposal *s dunonstrated to regions. rock cover shall be employed on th) amendabihty of the disposal sy stem to be impracticable or the avantases of onsite slopes of the impoundment system. The NRC , ecc:mmodate increased capacities without bunal clearly outweigh the benefits of will consider reiamma this requirement for i degradation n Icng-term stabihty and other reducmg the perpetual serveillance extremely gentle slopes such as those which performance factors shall be evaluated. obhgations. they may eust on the top of the pile. Licensees or apphcants may propose Cntenon 3-The "pnme option" for The followmg factors shall be considered cir:rnatives to the specific requirements in 6sposal of tathngs is placement below grade. m estabhshms the final rock cover design to this Appendix. The alternative preposals may either m mmes or specially excavated pits avoid displacement of rock particles by 1 l i i

Federal Register / Vol. 49. N2. 228 / Monday. November 26, 1984 / Prop: sed Rules 4M21 under 40 CFR 19:.41(d) and 40 CFR regards cranium mill tailings sites and rulemaking action, can be viewed as the 192.321aM3) respectively, have no broader connotation. lead agency.

8. Cntens 2. 7.9.10.11. and 12 are not The Commission believes that affected by the new EPA standards or licensee oroposals for alternatnes can Paperwork Reduction Act Statement editonal changes and no modification is be an important and effective wey to This propami rule does not contam a proposed for any portion of those help deal with the problema associated new or amended information collection cnteria. with implementmg the new EPA requirement subject to the requirements Commission Authority and standards. The Commission expects that of the Paperwork Reduction Act of1980 ResponsMity it may requtre several years to have its (44 U.S.C. 3501 et seq.). Existing conforming regulations fully in place. It requirements w.:re approved by the Secnon Mc.of the Atonuc Energy Act expects to use the flexibility provided Office of Management and Budget state that: A licensee may propose by section 84 in the interim to consider approval number 3150-0020.

alternatives to specific requirements and approve alternative proposals fmm adopted and enforced by the licensees. Secuan 64c. provides NRC Regulatory Flexibillty Certification Commission under this act. Such sufficient authonty to independently As required by the Regulatory alternative proposals may take into approve alternatives so long as the Flexibility Act of 1980. 5 U.S.C. 605(b). account local or regional conditions. Commission can make the required the Commission certifies that this rule mcluding geology, topography. determination, will not. if promulgated. have a hydrology and meteorology. The signif cant economic impact upon a Commission may treat such alternatnes t of 6e Pmped Amhts substantial number of small entities. n satisfying Commission requirements The Commission's action in proposing Therefore, we have not performed a if the Com::ussion deternunes that such these moddications to its regulations in Regulatory FlexMity Analysis.We alternatives will achieve a level of Appendix A to 10 CFR Part 40 is to beets for this finding is that of the stabilir.auon and contamment of the conform them to the new EPA hcensed uranium mills only one sites concerned. and a level of standards. These changes are for the qualifies u a small entity. Almost all protection for public health, safety. and purpose of avoiding confhets and the mills att owned by large the environmert from radiolog cal and inconsistencies and for clanfytng corporations. Three of the mills are nonradiological hazards associated with previously existing language so as to be partly-owned by companies that could such sites, which is equivalent to, to the compatible with the new requirements. extent practicable. or rnore strmgent qualtfy as small heases, accordmg to The action proposed here by the the Small Business Admimetration than the level which would be achieved Commission is a consequence of by standards and regarements adopted genenc small enney deEnsuco of 500 previous actions taken by the Congress employees. However, under the and enforced by the Commisuon for the and the EPA. and is legally mandated in same purpose and any final standards Regulatory Flexibthty Act. a small promulgated by the Admmistrator of the cfsection 275b(3) 1954, as of the Atormc Energy Act business is one that is independently amended, Environmectal Prctection Agency in owned and operated. Smce these three Commission acuoo in this case as accordance with secton 275 esentialh nondiscretionary in nature, mills are not independently owned they The Commission histoncaHy has had and for purposes of environmental do not quaLfy as small entiaes. the authonry and responsibihty to analysis rests upon existmg IJst of Sch)ects in 19 CFR Part 40 regulate the activities of pe sons environmental and other impact hcensed under the Atocuc Ene sy Act of evaluatiens in the following documents: Government contracts. Hazardons matenals-transportation. Nuclear 1954. as amended. Consistent with that (1)" Final Environmental Impact authority and in accordance wis matenals. Penalty. Reportmg and Statement !ct Standards for the Control recordkeeping requirements. Source section 84c. of that Act. the Commission of Byproduct Matertals from Uranmm has the d:scretion to reuew and matenal, and Urunh:m. Ore Processmg 90 CFR Part 192).' approse site spectfac altemaus es to Volumes 1 and 2. EPA 520/1-83-008-1 Under the Atomic Energy Act of 1954. standards promu! gated by the and 2. September 1983. an! (2) as amended, the Energy Reorgaruzation Commission and by the Ad.=mstrator of Regulatory impact Analysis of Final Act of 1974. as amended. 5 U.S.C. 553. the Environrnental Protection Agancy. In Enttronmental Standards for Urantem and the Uramum Miil Tathnes Radiation the eseresa of th3s authantv. Sectv n Mill Tatimg at Active Sites. EPA 5:0/1- Control Act of 1978. as amen'ded, the 84c. does not reqmre the Commis? ton to 83-010. Sep' ember 1983. both prepared NRC is proposmt the following obtain the concur ence of trie . m support of Sabparts D and E cf 40 amendments to 10 CFR Part 43. Admmistra'er in any s te specif:r CFR Paret 192. and (31 " Final Genenc alternatis e w Mch satisf.es Ccmm:sswn Environmental!mpact Statement on P ART 40-DOMESTIC LICENSJNG OF requirements for the les el of pro:xtion Uramum Md:mg." NUREG-4706. SOURCE M ATERIAL for public heaid. s. fey and the S2ptember 1960. prepared m support of 1. The authonty citanon for Part 40 is

!   environment from radic,:ogical and          Appenda A of10 CFR P2rt 40. The               revised to read as follcws:

nonradiolorcal hazards at uranram rr.iil Commission beheves that these Authonty: Secs e2. 63. 64. 65. 61. tot 182. tailing sites As an example the supportir g analyses for the new EPA 183.186. 6a Pat. 93:. 91t 931 G48. 9kl. 0R Commisson need not seek concurrence standards and the existing Comrmssion 955. as amenced. secs IIe( ). 83. 64. Pub. L of the Administrator a case-bpcase regulations provide a more Man 95-6n4 9: Stat. 3011. as antended. 3o.19. sec. determinations of altemauve adequate environmental review for the :n 83 S:at 444 as amended (4: U S C. concentration hm:ts and dehst:ns of standards addresed herem. and that no mem m m m m :111. 2113. hazardous constitutents for specific additionalimpact analysis ts warranted :t1 8 sites. It should be understood that tne by the conforming actions proposed p ,b 3 d~ proposed confornung regulatmns deal sec. 201, as amended. 202,206. 8a Stat.1:42. herein. The EPA engaged m and with the exercise of the Commission's completed a NEPA process with fu i as amended.1:64.1:4814:U S C. 5841. 5a42. responsibthty and authority under the sa46) Section :r$. 9: Stat. 30:1. as amended consideration of environmental by Pub. L 9?-415. 9e Stat. 2067 (4: U.S.C. Atomic Energy Act of 1954. solely as concerns. and for the purposes of this 2022). 2

46420 Federal Register / Vcl. 49. Nr. 2;8 / M:nd:y.' N vemb:r 26, 1984 / Proposed Rules

   " potential uses." and the phrase " * *

an earthen cover shall be placed over (d) At the end of Cnterion 6. add a in order to accomplish this objective."in tailings or wastes at the end of milling new paragraph to read:"The design the third sentence. operations and the waste disposal area requirements in this Critenon for Reason:The EPA groundwater shall be closed in accordance with a longevity and control of redon releases protection standards referenced in 40 design
whit.h shall provide reasonable shall apply to any portion of a licensed CFR 192.32(a) do not permit any seepage assurance of control of radiological and/or disposal site unless such portion to groundwater. hansnh to til He rffr. m e for une contains a concentration of radium in (b)In the first listed item under the thousand years. to the extent reasonably land, averaged over areas of 100 square first paragraph begmning with achievable, and in any casecfor at least meters, which. as a result of byproduct

   " Install.tiori of * * * " delete the words   200 y ears, and (ii) limit releases of         material does not exceed the
   " low permeab.lity" as a charactenstic of radon 222 from uranium byproduct                   background level by more than:(i) 5 bottom liners.                                matenals, and radon 220 from thonum            picocuries per gram (pCi/g) of radium.

Reason:The EPA groundwater byproduct matenals, to the atmosphere protection standard referenced m 40 226. or,in the case of thonum byproduct so as to not exceed an average 8 release material. radium 228. averaged over the CFR 192.32(a) requires a liner that rate of 20 picocunes per square meter prevents migration of wastes out of the first 15 centimeters (cm) below the per second (pCi/m's)." surface, and (ii) 15 pCl/g of radium.226. impoundment into the ad i acent soil and Recson:The cnange replaces previous or,in the case of thonum byproduct groundwater. Low permeability implies Commission requirements for minimum that some migration is allowed- matenal, radium 228. averaged over 15-cover thickness and post-closure radon cm thick layers more than 15 cm below (c)In the second paragraph beginnina control mth the EPA standards for "Where groundwater impacts * * * " the surface." longevity and radon control. The EPA Reason:This change incorporates the delete the phrase "to its potential use before milling operations began to the standard in 40 CR 192.32(b) for EPA requirements for site cleanup ensironmental protection after closure outside the actual disposal area. in R os n. The EP sta dard in 40 CG '" " "' ' " ' ' ' * "" " " " * " "8' N "" ' " provide reasonable assurance that control closure standards are not requi es a o ec ea n to ram to releases f radon 222 do not exceed 20 applicable (see 40 CFR 192.32(b)(2) and restore groundwater to standards c cunn pu squam meu pu ucond. M24 established under 40 CFR 264.92-264 94. raje P "' d" ^ 7. Criterion d

                                                , da the t ickne s coy r 1                  a o degrada o standard estoration of function of longevity and radon release                    (a) At the end of the first fu'l groundwater quality only to the extent        and will be determined based on                paragraph. add a new sentence to read necessary to restore its potential use is     meeting the 20 value instead of 2.The             Dunng operations and pnor to closure.

inconsistent mth EPA standard. 6me men mmimum precnptive radiation doses from radon emissions (d) Delete in its entirety the third nqu nment was developed to achieve a from surface impoundments shall be paragraph begtnmng "While the pnmary 2 picocune emanation rate based on the kept as low as is practicable. method of protectmg g-oundwater shall assumed typical soil condinons. Reason: nis change incorporates the be isolation * * * " and endmg . . . (b) Add to Criterion 6 the followmg EPA requirement imposed under 40 CFR from current or potential uses." two footnotes which accompany the 192.32[a)(4). Recson: The EPA standards for revised first sentence: footnote: (1) "The (b) following the third full paragraph groundwater protection in 40 Cm standard applies to design. Momtormg of Cntenon 8. just before Cntenon 8A. 192.32(a) protect groundwater pnmanly for redon afterinstallation of an insert the following two new on the basis of background. level appropnately designed cover is not paragraphs: concentration limits for herzardous required." and footnote (2) "This "Millmg operations producing or constitutents. and not in terms of current everage shall apply to the entire surface involving thonum byproduct material or potential uses. The deleted sentence of each disposal area over penods of at shall be conducted in such a manner as allowed consideration of tailinas in least one year. but short compared to to provide reasonable assurance that the contact mth groundwater. De EPA 100 years. Radon will come frem both annual dose equivalent does not exceed standard permits no seepage to uramum byproduct matenals and from 25 millirems to the whole body 75 groundwater. covenng matenata. Radon emissions millirems to the thyroid and 25 (e)In the first sentence of the fifth from covenng matenals should be millitems to any other organ of any paragraph beginmng "This information . estimated as part of developtng a member of the public as a result of shall be gathered * * *" delete the word closure plan for each site. The standard. exposure to the planned discharge of

 " usable" where it modifies                   however, applies only to emissions from        radioective matenals. radon.220 and its "groundwa ter."                               byproduct materials to the atmosphere." daughters excepted. to the general Recson:The EPA standard m 10 CFR             Reason:This change fully                    environment."

192.32(a) does not distmauish between

incorporates the EPA radon control "Uramum and thonum byproduct

 " usable" and nonusable acquifers. Th,        stand erd.                                     matenals shall be rnanaged so as to groundwater protection standard                   (c)In the fifth sentence of the first      conform to the applicable provisions of applies universally to acquifers of any   ~

par 4 graph. replaca "non. soiled" mth Title 40 of the Code of Federal quality or potential use. "non soil." and replace the words "to Regulations. Part 440. Ore Mming and

6. Criterion 6 reduce tailings covers to less than three Dressing Point Source Category: Effluent meters" mth the words "as cover Limitations Guidelmes and New Source (a) Delete the first sentence m ma terials." Performance Standards. Subpart C.

entirety. beginmng with " Sufficient earth Recson: The first change corrects a Uranium. Radium, and Vanadium Ores cover * * * ' and ending mth ' *

typograpmcal error. The second is an Subcategory, as codified on January 1.

meter per second.". and m its place editonal change to be consistent with 1983." msert "In cases where waste byproduct the delenon of the three meter mimmum Reason:nese new peregraphs matenal is to be permanently disposed, requirement as discuased m (s) above. incorporate EPA requiremerits imposed

l Federal Register / Vol. 49. Nr. 228 / M:nday, N;vemb;r 26.1984 / Prop 2 sed Rul:s 46419 I documentation. Other changes to the (2) Adhere to applicable requirements standards promulgated by the Commission's regulations for mill in 40 CFR Part 440. " Ore hiining and Environmental Protection Agency in 40 t:ilings management resulting from the Dressing Point Source Category: Effluent CFR Part 192. Subparts D and E." EPA standard are the subject of the Limitations Guidelines and New Source Reason:The ficxibility to propose accompanying ANPRM. Performance Standards. Subpart C. alternatives to the Commission's and The content of these two rulemakings Uranium. Radium, and Vanadium Ores EPA standards was included in Pub. L also may be characterized in terms of Subcategory." 97-415 changes to the AEA. The added the need for EPA concurrence, although (3) Mamtain releases of radon to the paragraph paraphrases the language in that was not the decidmg factor. This atmosphere during operations as low as Section 84c. The added paragraph proposal consists of modifications not is practicable; explicitly acknowledges the legislative requiring EPA concurrence. including (4) Close disposal areas so as to intent and provides licensees and conformmg changes to existing NRC provide reasonable assurance of applicants the opportunity to propose rules and incorporation of EPA effective control for 1.000 years, to the alternatives as a routine hcensing requirements not denving from the extent reasonably achievable, and. in matter. Licensees would have to provide SWDA.Those modifications that are the any case, for at least 200 years: a site specific rationale to enable the subject of the ANPRM accompanying (5) Limit aurage post. closure nlesses Commission to make the required th3 proposal denving from the SWDA of radioactive radon gas to no more than fin'ing d This generic approach was require EPA concurrence pursuant to 20 picocunes per square meter per taken mstead of modifying individual section 84 of the Atemic Energy Act. second (pCi/m8.s); and criteria to provide flexibility. A generic Modifications addressed m the ANFRat (6) Set hmits for residual approach avoids the chance of not include:(1) Incorporation into NRC concentrations of radioactive radium identifymg all areas where flexibility left in soil. above background. m, onsite t regulations of SWDA requirements may be needed and preserves the already imposed by the EPA. [2) any areas not subject to the closure existmg support for Appendix A. l further modifications to NRC regulations requirements for longevity and radon Administratively, alternatives are easier

  '                                                    niease control n:cessary to establish SWDA-                                                             to process under an expl. cit provision comparable requirements as called for      Proposed Modifications and Rationals         than exceptions to rules.

by the UMTRCA. and (3) any further In accordance with the above, the modifications needed to address 2. Cnterion 1 presenptive provisions that were Commission proposes the following I*I I" I phrase .P. forE*thousands

                                                                                                                            #'I'*

suspended pnor to Apnl1.1964 but not modifications to Appendix A to 10 CFR Part 40 of years proposed for mod 2fication by this action. * * * " and insert " * * * ."

This course of action was chosen to 1. Introdsction Reason:The thousands of years allow the Commission to both conform (a)In the second sentence of the third language conflicts with the 40 CFR its regulations to EPA's and incorporate paragraph, change "amendability" to 192.32(b) standard of design of control non-SWDA provisions in a prompt and "amena bility." measures to be effective for 1.000 years. orderly manner and deal with the Reason:This change corrects a (b)In the second listed item of the complex of SWDA requirements and typogra phical error. first paragraph. delete the word issues in a separate. comprehensive and (b) Delete the fourth paragraph in its " usable." unified rulemakmg. ?ntirety. Reason: Both 40 CFR 264.221 and 40 Content of This Proposal Reason:This change deletes an CFR 264.92. which are included by information submittal requirement reference m 40 CFR 192.32(a]. require

    ,          The new EPA requirements in 40 CR      which was established in connection          isolation of contammants from all Part 192. (48 FR 45926) mcluded by         with implementation of the ongmal            qualities of groundwater. not just usable r2ference several sections from 40 CFR     Appendix A cntena.The due date               groundwater sources.

Part 264, promulgated by the EPA ongmally set for submittals is past. A pursuant to authenty provided by the #'# ## new due date for revised submittals is RIsource Conservation and Recovery not considered necessary. m Delete the moriitmrs "hn:h quahn ' Act (RCRA). whicti modified the SWDA. (c) Add the following paragraph at the for groundwater in the second sentence These SWDA (or RCRA) requirerrents end:" Licensees or apphcants may of the second paragraph. imposed under 40 Cm Part 192 are propose alternatives to the specific Reason:The EPA standards require addressed in the ANFRM accompanying requirements in this Appendix. The protection of all quahties of this proposal.The few conformms alternative proposals may take into groundwater. not just high quality changes to NRC's existmg Appendix A account local or regional conditions, sources. r:gulations made necessary by these includmg geology. topography. newly imposed SWDA requirements are hydrology, and meteorology. The # c7#"" # addressed in this document. as are Commission may tind that the proposed (a) Revise paragraph (a) by deleting conforming changes and other changes alternatives meet the Commission's " maximum possible flood" and insertmg necessary to reflect and incorporate the requirements if the alternatives will " Probable Maximum Flood." non-SWDA elements of EPA's new achieve a level of stabihzation and Reason: Probable Maximum Flood requirements. These non-SWDA containment of the sites concerned. and reflects the appropnate hydrologic terms provisions include requirements to- a level of protection for public health. {- (1) Adhere to appbcable requirements safety, and the environment from for a design basis anc the originalintent of the provision when Appendix A was

      ;    m 40 CFR Part 190. "Erwtronmental          radiological and nonradiological             promulgated.

i Ridiation Protection Standards for hazards associated with the sites, which 1 Nuclear Power Operations" for uranium is equivalent to, to the extent 1 Ch"#" # byproduct matenal. and essentially the practicable, or more stnngent than the (a) In the first paragraph, delete the same requirements for thonum level which would be achieved by the first two sentences beginning " Steps j byproduct matenal; requirements of this Appendix and the shall be taken * * * " and ending

L

s 4H18 Federal Register / Vol. 49. Nr. 228 / M:nday. N:vember 26, 1984 / Proposed Rulfs consideration may not be given except opportunity for public comment. Today's for comments received on or before this proposal addresses that responsibility. date. Previous Actions Acomesses: Mail cornments to Secretary. U.S. Nucleer Regulatory in keeping with section 18(a) of the. Commission. Washington. DC 20555. NRC Authonzation Act, the Commission Attentiorr Docketing and Service suspended portions ofits October 3. Branch. Deliver co:-.ments to Room 1121, 1980 mill tailings regulations after notice 1717 H Street NW. Washington. DC and opportunity for public comment (48 betwe*ft 8:15 a.m. and 5.00 p.m. FR 35350 August 4.1983). As esquired weescays. by the Act. this susnnsion termmated

                                                                                          "                    ~

Fon FURTHam INFonMaficM CONTACT: Robert Fonner. Office of the Executive po n he i

r lations which were suspended were those that !

Legal Director, te'ephone (30)) 492-8692. ' or Kitty S. Dragonette. Division of were determined to be in conflict or inconsistent with EPA's proposed Waste Management. U.S. Nuclear requirements. More specifically. the Regulatory Commission. Washington. suspended portions were those that DC 20555. telephone (301) 427-4300. would require a major commitment or suppt.anssNTARY ImpomasATroec The major action by licensees which would Nuclect Regulatory Commission (NRC be unnecessary if:(1) The EPA proposed or Commission)is proposing standards were promulgated in final modifica* ions to its regulations for the form without modification, and (2) the purpose of conformmg them to generally Commission's regulations weie modified applicable requirements recently to conform to the EPA standards. The promulgsted by the Environmental objective of the susoension was to avoid Profection Agency (EPA). These new a situation where a licensee or applicant EPA requirements are contained in - might make a major comnutment or take Subyarts D and E of 40 CFR Part 192 (48 a majo'r ar.t:on which would be FR 45928: October 7.1983). tre unnecessary orill advised after applicable to the management of subsequent rulemaking to modify urutum and thenum byproduct permanently the existmg regulations on material. and beca ne effective for NRC the basis of EPA's finsi standards. and Agreement State licensees and The final EPA standards are very license applicants on December 6.133. similar to those that were proposed. The action proposed herein wvuld Nevertheless. the Commission has modify previously existing regulations of reconsidered the appropriateness of the Commission to conform them to the changes to Apper: dix A tc 10 CFR Part NUCLEAR REGULATORY new EPA requirements. and would 40 in light of the new EPA standards. COMMISSION incorporate certam of the new EPA and the need for additional supportmg requirements into the Commission's documentation. The changes proposed 10 CFR Part 40 regulations. The affected Commission today are more modest than the Uranium MIN Talling Regulationst regulations are contained in Appendix A previous suspensior. Conforming NRC Requirements to EPA to 10 CFR Part to, which was promulgated in final form on October 3. Scope oNs Pmpoeal Standarda

1980 (45 FR 65521). In addition to conforming its existmg AsassCY: Nuclear Regulatory The modifications to Commitnon regulations to new EPA standards.

Commission. regulations proposed herem will under the provisions of the UMTRCA. LCTioec Proposed rule incorporate withm NRC regulats:As the Commission has a further legislated some of the new EPA requirements. The responsibility:it must establish general sussesAAY:The Nuclear Regulatory action that the Commission will take requirements. for the mansgerr.ent of Commission (NRC)is proposmg to with respect to the remamder of these byproduct matenal. with EPA amend its regulations governmg the new EPA requirernents is the subject of concurrence. which are, to the maximum disposal of uranium mill tailings. ' Die an Advanced Not *.e of Proposed proposed r.le changes are intended to extent practicable. at least comparable Rulemaking ( ANPILM). w'tich requests to requirements applicable to the conform existmg NRC regulations to the comment on that subject. also issued management of similar hazarious regulations published by the this day. These new EPA requirements matenal regulated by the EPA under the Environmental Protection Agency for were developed and issued by EPA the protection of the environment from Solid Waste Disposal Act(SWDA) as pursuant to section 275b. of the Atomic amended. The Commission de%erated these wastes. This action is bems taken Energy Act (42 U.S.C. 2022), as added by as to how best to oest with the se reisted to comply with ese legislatne mandate section 206 of Pub. L 95-604. the rulemakmg needs and decided on the set out in the Uranium Mill Twinngs Uranium Mill Tailings Radiation Contral course of action resulting in this Radiation Control Act and thoNRC Act of 978 1 (UMTRCA). Under sectiori proposal and the accompanymg Authorization Act for FY 1Sai 18(a) of Pub. L 97-415. the Nuclear ANpRM. This proposal addresses all the [Ata:The comment penod espires on Reg (.atory Commission Authonzation changes to the exic;ms Commission ]:nuary 10.1985. Commer:ft *eceived Ac: for 1 scal years 1982 and 1983. the regulations m Appendix A to to CFR aft:t this date will be considered if it is Cre.nri ssion was directed to conform its Part 40 that can be legally promulgated practical to do so but assura:.ce of reguistions to EPNs with notice and without additional supportmg s

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the requ9rements in Criterion 12 for the custodial government agency's monitor-ing programs. COI suggested adding provisions on maintaining ground water sampling wells and on how long inspection and monitoring would continue. ( suggested that cleanup standards for adjacent lands be developed to define when they can be released for unrestricted use. WY questioned whetner the one year baseline in Criterion 7 is adequate, suggested clarifying " unrestricted areas" in Criterion 8A, questioned the compatibility of Crite- , rien 9 with self bonding in Wyoming, and expressed misgivings on the l Criterion 11C provision on not aquiring all subsurface rights. Industry commenters viewed the proposed conforming rulemaking as an opportunity to reiterage objections to any or all parts of Appendix A and advocate less restrictive provisions. Many issues identified in lawsuits and petitions for rulemaking were repeated. WNI and AMC proposed changes to Criterion 8 on checking parameters to control yellowcake emission to allow reliance on alarms. WNI and AMC objected to the Criterion SA 10-day reporting requirement and " qualified engineer or scientist" inspector requirement. AMC advocated checks only when tailings are being added. Changes to Criterion 9 to reduce the licensee's liability and amount of financial assurances were also procosed by WNI. Self-insurance was advocated for Criterion 9 by AMC anc WNI. WNI urgec flexibility in the minimum long term care charge, no inflation adjustments, and reliance on state funcs for comoarable purposes in Crite-rien 10. AMC expressed similar views on delying on state funds. Kerr-McGee comments reflected a similar ::osition on Criteria 3, 9, and 10. AMC argued against the 1*.' real interest rate in Criterion 10. AMC supporters (HMC, UMC, ard Rio Algom) by reference suoport AMC's cosition in all respects. Kerr-McGee anc AMC proposed specific adcitional changes not relatec to conforming but mandated in their view by legislation inacted and other events subsequent to promulgation of Appendix A. The basis is essentially the same as noted above in the discussion under Scope of Rulemakin1 e their generic recommendation to uncertake an indepencent new ru'lemak %;. Kear-McGee argued that Criterion 3 should be modified or deleted so ;.% ar . ting sites co not have to consider below grace ciscosal. Kerr-McGee argues that rcck covering to mee the specifications in Criterion 4 is impractical in parts of tne i 04/18/35 21 10 CFR 10 CHANGES

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Southwest because the rock would have to be imported and the alternative vegetative cover is also impractical. Similarly the gentle slope requirements in Criterion 4 are not practicable at all existing sites because of soil supply and land ownership and should be deleted in Kerr-McGee's view. Application of the siting criteria to existing sites must' involve both short and long-term risk and cost balancing and Appendix A does not make this application clear, in fact Criterion 1 contradicts it, according to.Kerr-McGee. In effect, Kerr-McGee advocates developing separate rules for mills where operations have ceased and no plans to restart are involved. These separate rules would address all aspects of Appendix A including siting. Kerr-McGee also suggested eliminating the first listed item in Criterion 5 dealing with liners since it might be read to require liners at existing sites. Kerr-McGee and AMC urged deleting the restriction on credit for thin synthetic layers to reduce radon emissions in Criterion 6. AMC provided extensive additional suggested revisions to Appendix A. The - suggested changes would revise Appendix A to follow the approach outlined for NRC to take in a new independent rulemaking as discussed above. Suggested changes incluced adding site specific optimization for stabilization in the Introduction, distinction between existing and new sites in Criterion 1, provision for cost / benefit judgments in Criterion 1 and planned reliance on maintenance in Criteria 1 and 12. AMC provided rewrites of Criterion 3 to reflect 200 year stabilization and Criterion 5 to reflect its views on risk, costs, site specificity, and existing vs new site distinctions. AMC suggested changes to Criterion 8 to include reliance on institutional controls and deletion of references to controlling radon during operations without regard to risk. Dawn proposed changes to Criterion a dealing with the slope of emoankments

and covers. Dawn suggested more flexibility, a Sh: 1V instead of 10h:1V design i basis, and more ' site specific flexibility.

t 04/18/85 22 10 CFR 40 CHANGES l i- - . . . . ! ..w -. . . .

Recommended Rule Chsnge: Acd the following paragra:n at the end of the Intrecuction: All site specific licensing decisions based on the criteria in this Appen-dix or alternatives proposed by licensees or aoplicants will take into account the risk to the public health and safety and the environment with due consicera-tion to the economic costs involved and any other factors the Commission deter-mines to be acpropriate. In implementing this Appencix, the Ccemission will consider " practicable" and " reasonably achievable" as equivalent terms. Decisions involving these terms will take into account the state of technology, and the ecencmics of improvements in relation to benefits to the public health and safety, and other societal anc socioeconomic considerations, and in relation to the utili:ation of atcmic energy in the public interest,

d. Ccements on 40 CFR 192 Commenters offered a numcer of comments en the validity and merits of the EPA standard. The majority reflected dissatisfaction. The dissatis-faction was reflected in general comments, references to proceedings, and in arguments en many of the general issues and specific proposed changes.

Commenters represented virtually all categories of commenters. Ecology / Alert apolauced the EPA accroacn of protecting all qualities of groundwater from contamination. UT challenged the technical base for the raden limits for thorium byprecuct material and urgec NRC not to adopt :nem (see modifica-icn 6(d)] and EPA to cnange them. ECNP ex:ressed the view :nat EPA failec to meet "its statutory responsibilities" in issuing 40 CFR 192. IL cnallenged the legality of EPA issuing a 1000 year engineering cesign standarc. Kerr-McGee made repeated references to its position that the EPA stancards are invalic and fail to meet the risk /econemic cost test. AMC's similar position was addressed in the two previous sections. AE challenged the raden hazard basis for the EPA standarc as inacepuate when balanced against indoor radon levels'frem energy conservation. 04/13/35 23 10 CFR 40 CHANGES

Response

As noted in the accompanying ANPRM (49 FR 46427), the Commission must focus on choices and decisions it must make on actions within its discretion. Until or unless court action sets aside the EPA standards, they are binding on NRC,and Agreement State licensees. NRC licensees are faced with two sets of effective regulations that contain conflicting or inconsistent requirements. Under law, NRC must implement and enforce both. As implied by the Commission Authority and Responsibility statement, the only provision of the EPA standard the Commission does not plan to implement and enforce is the provision in 40 CFR 192.32(a)(2)(iv) requiring EPA concur-rence on site specific decisions. The staff believes that removing conflicts and inconsistencies in the two sets of regulations and using site specific alternative authority to deal with occasional site specific problems represent the best way to deal with these conflicts and inconsistencies and meet the minimum requirements of the Congressional mandates. In view of the above, comments on the lawfulness, merits, and value of the EPA standards were considered outside the scoce of this action and were not a factor in recommending a final rule.

e. Other Other general issues raised by the ccmmenters included views that NRC shoulc be more stringent than the EPA radon emission and longevity standards, Agreement State imolementation, and editorial suggestions.

The ECNP urged conservative independent action by NRC to keep and exoand its more stringent requirements on radon emissions and longevity. In ECNP's view, more stringent requirements would provide absolute assurance that the E?A standards would be met and provide greater public protection over longer periocs of time. 04718/S5 24 10 CFR 40 CHANGES

Response

The staff agrees that i t must have reasonable assurance tnat tne EPA stancards will be met but does not agree that highly conservative regulations are needed to provide such assurance. Case specific reviews are tne proper mechanism for such findings. For the non groundwater provisions of the EPA standards under consiceration in this action, EP,A carefully and thercughly re-examined the NRC record and considered NRC and other comments and later technical and risks information. The staff therefore has no basis to set aside the E?A conclusions on these aspects of the standard. Licensees should benefit from this re-examination. The State Of New Mexico, an Agreement State, raised questions about Agreement State implementation. NM questioned how the process of cealing with alternatives using the type of flexibility afforded by Section 84c of the AEA would work in Agreement States. Specifically, NM asked whether NRC must concur in Agreement State decisions on proposed alternatives and whether the status of the State's adoption of regulations equivalent to or more stringent than 10 CFR Part 40 Appendix A affects the p~rocess. NM also suggested that a cross-l reference to 10 CFR 150.31(b) in Appendix A might clarify Appendix A's acplicability to Agreement States.

Response

Section 19 cf Puc.L. 97-415, the NRC Authori:ation Act for fiscal years 1982 anc 1933, addec the following option to Section 27ao of tne AEA for Agreement States:

      "In adcoting requirements cursuant to ;aragraph (2) of nis su:section with rescect to sites at which cres are processed primarily f0r their source material content er wnich are used for the ciscosal of Cyproduct material as definec in section 11e.(2), the State may adopt alternatives (inclucing, wnere accropriate, site-specific alternatives) to the require-ments adcpted and enforcec by the Commission for the same purpose if, after nctice and accortunity for public hearing, the Commission determines tnat such alternatives will acnieve a level of stabilization and containment 04/13/35                                  25        -

10 CFR 40 CHANGES 1 pr e - e w w y - v-- -ei'

l l ^ l of the sites concerned, and a level of protection for public health, safety ) and the environment from radiological and nonradiological hazards asso- l ciated with such sites, which is equivalent to, to the extent practicable, or more stringent than the level which would be achieved by standards and requirements adopted and enforced by t'he Commission for the same purpose and any final standards promulgated by the Administrator of the Environ-mental Protection Agency in accordance with section 275. Such alternative State requirements may take into account local or regional conditions, including geology, topograchy, hydrology and meteorology." The text clearly states that the Commission must determine that alter-native standards adopted by the State achieve the required levels of protection. Further the Commission must notice the alternatives and provide an opportunity to request public hearing. This option is available to the State if it is regulating byproduct material without regard to the status of the State's adoption of Appendix A. It gives the state additional flexibility in adopting generic or site specific standards. The suggestion to add a cross-reference in Appendix A is negated by the explicit provisions of 10 CFR 150.31(b) wnere requirements are spelled out 'in context. However, the comment does point out that 10 CFR 150.31 should be amended to add the cotton quoted above. Including the language in Part 150 is not legally retuirec for the State to exercise the option, but addition would clarify the situation and be consistent witn existing Part 150 and the procosed addition to the Introduction of Appendix A on alternatives. Recommended Rule Change: Acd a new 10 CFR 150.31(d) to read: "In adopting requirements pursuant to paragraph (b)(2) of this sec:fon, the 5: ate may adco: alternatives (including, where appropriate, site-specific alternatives) to the requirements adopted and enforced by the Commission for tne same curpose if, af ter notice anc opoortunity for public hearing, the Commission determines that such alternatives will achieve a level of stabili:ation and containmen. of the sites concerned, and a i l l ! 04/18/85 25 10 CFR 40 CHANGES l l

levei of protection for public health, safety and the environment frem radio-logical and nonradiological ha:ards associated with such sites, which is equiva-lent to, to the extent practicable, or more stringent than the level which would be achieved by standards and requirements adopted and enforced by the Commission for the same purpose and any final standards promulgated by the Administrator of the Environmental Protecticn Agency in accordance with section 275. Such alter-native State requirements may take into account lccal er regional conditions, including geology, tcpography, hydrology and meteorology." Ecciogy/ Alert urgeo NRC to use plain concise language in all its regulatory writing and provided a sample rewrite of part of Appendix A.

Response

The Ccmmission agrees with the thrust of this point but preferred and continues to prefer minimum word changes in the conforming process. This minimum change approach helps focus on the changes due to the EPA standard and is the simplest and most efficient. Several commenters (E?A, WA, NM, TX) offered eciterial suggestions and icentified typegraphical and transcription errors.

Response

                 . Vest of the State comments were straigntforwarc anc shoulc be adccted.

EPA's general editorial ccmaent that the term " site" is not used consistently in Accendix A can be factored into subsequent rulemaking. Staff believes that no creolems are presented by the use of " site" in Accenidx A that are signifi-cant enough to be acdressed in this limited rulemaking. No comments were received on the Regulatory Flexibility Certification or Paperwerk Reduction Act Statement in :ne notice. No specific comments were received on the NEPA discussion under Incact of the Amencments. However, comments accressed under tcpics b. , c. , and d. above accress the adequacy of tne EPA and NRC basis for action. 04/18/35 27 10 CFR 40 CHANGES

l l

4. CCMMENTS ON SPECIFIC PROPOSED M00IFICATIONS TO APPENDIX A 10 CFR 40 The proposed rule notice listed the specific mcdifications and rationale for each change. The list chronologically followed 10 CFR 40, Appendix A. In the following analysis, each of the modifications are addressed and the numcer-ing system frcm the proposed notice is provided. See the notice in Appendix A of this document for the full text of the proposed changes.

a. Intreduction Modification 1 (a): Typograohical error and no comments.

Recommended Rule Change: Change should be adopted as proposed. Mcdification 1.(b): This proposed change celeted an outdatec informa-tion submittal requirement associated with the 1980 publication of Acpendix A. 9 ECNP ebjected to this change based on a misunderstanding. ECNP expressed concern that the deletion would mean that detailed information on licensees' programs shcwing how they meet tne criteria in Appendix A would not be recuired. Res:ense: Licensee compliance with Appendix A and the EPA standards is being handled and C0cumented in the routine course of licensing and enforcement activities. A s ecific or separate submittal is not needed and woulc represent an unwarranted burden on licensees. Recommended Rule Change: Staff sees no reason not to celete the paragraph. Modification 1.(c): This change woulc acc a parachrase of the provisions of Section Sac of the Atomic Energy Act. The language pr0 vices 04/18/SE 28 10 CFR 40 CHANGES

applicants and licensees the c;pertunity to propose alternatives to the s:ecific requirements of Appendix A. C:mments on this pr0 posed change expressed succort, 0 cosition, and the need for clarification. ECNP expressed a generic concern over site s:ecific licensing cecisions such alternative proposals would involve. The EDF and EPI did not object to the modification itself, but took issue with the interpreta-tion of Section 34c of the AEA tnat was expressed in the rationale and the 4 Commission Authority and Res:ensibility statement. (See discussion under general issues.) CO generally.supportec the flexibility but expressed hypothetical concern about licensee or applicant abuse. C0 suggested that NRC elaborate on the issue by developing rule changes or policy on how NRC determinations on "equiv-alent to, to the extent practicable" will be made. CD referenced its review and position en an alternative pecposal for dried tailings anc liquid cisposal at Spring Creek Mesa submittee oy UMETCO for its Uravan facility. C0 determined that the alternative design and pro:osed operation was not equivalent and that better design was practicaole. A copy cf the State's detailed licensing review for Uravan was sucmitted with the State's comments on tne accompanying ANpRM. WA su::Orted the flexibility. NM cic not ceject to he flexibility but noted i or cuestioned certain as:ects. NM noted that the insert included no time frame for c:meliance with A:pendix A requirements. NM correctly noted that only Ccmmission a: proval is called for, n0: EPA. NM suggestec adding language to clarify that it is the licensee's or a:clicant's rescensibility to provide the basis for demonstrating the adepuacy of the pre:0sec alternative. WY Objected to the flexibility afforded by :ne language " o the extent practicaole" anc r.ecommended celeting it but supportec :ne cnange otnerwise. Kerr-McGee supoorted this mccification but indicated that it was not sufficient and more specific changes are needed. HMC supported all Kerr-McGee's ' l comments. The AMC and its supporters supported this cnange but only as a firs l ste;. The AMC indicated sna: primary reliance on :nis inser: woulc result in regulation by exception. Cawn strongly supper:ec the ccification as procesed to provide needed site s:ecific flexibility. 1 l 04/13/35 29 10 CFR a0 CHANGES 1

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Response

Staff agrees with CO that additional guidance on how to make decisions on alternatives proposed by licensees or applicants is needed. Staff is working on guidance but efforts to date indicate th'at abstract generic guidance is difficult to prepare absent experience with specific proposals. NRC has used the 84c flexibility only once. The CO experience may hopefully serve as a second case. Staff is certainly in no position to propose rule changes at the present time. While the staff agrees with NM that it is the licensee's or applicant's responsibility to provide needed information, rule change is not needed and might confuse the issue by explicit instructions here and not in other parts of Appendix A. Staff notes that Appendix A is an effective rule that is being implemented and enforced in the routine course of business. WY's recommendation to delete "to the extent practicable" would be contrary to the legislation being paraphrased which explicitly includes this provision. Recommended Rule Change: - Add the insert as proposed.

b. Criterion 1 Modification 2.(a): This enange would delete the stability design timeframe of " thousands of years" and add the 1,000 year timeframe in the epa standard. Editorial errors confused the specifics of this modification. The first paragraph of proposed modified Criterion 1 should have read:

               "In selecting among alternative tailings disposal sites or judging the adequacy of existing tailings sites, the following site features which will cetermine tne extent to wnien a program meets the broad objective of isolating the tailings anc associated contaminants from man and the environment during operations and for 1,000 years thereafter, without ongoing active maintenance, shall be considered:"

04/18/85 30 10 CFR 40 CHANGES

The ECNP strongly opposed this mcdification and suggested that design periods "of at least 20,000 to 100,000 years" are needed to guarantee that the EPA standard will be met and to address the long term radon hazard. IL also strongly opposed this change based on arguments that (1) the change impacts the design goal for nonradiological hazards when the EPA standard does not apply the -1,000 year period to nonradiological hazards, (2) the EPA 1,000 year time is invalid, and (3) the hazards are so long-live,d. NM objected to the deletion of "... during operations and for .. " resulting from the editorial errors. EPI opposed the change based on the longevity of hazards from tailings and on the contention that the existing language is entirely consistent with EPA intent reflected in the preamble to 40 CFR 192 and the intent of the " reasonable assurance" provision of the longevity standard. WY offered revised language to reconcile the EPA 1,000 year practical design standard with the general goal of permanent isolation and opposed any change that would reduce the design objec-tive to less than 1,000 years. Kerr-McGee noted the editorial problems and claimed that the change must reflect the 200 year minimum in the EPA design standard in order to fully conform. Kerr-McGee cited EPA acknowiecgement that designs cannot alway,s be preven effective for a thousand years, hence the 200 year minimum, and Kerr-McGee's assertiens that costs of designing for longer than 200 years results in unjustiff ec " tremendous cost." HMC supported all Kerr-McGee cc=ments. The AMC also advocated inserting 200 years instead of a thousanc as the maximum reason-able period snat assurances can be given by engineers. AMC stated that many facters in assessing stability sucn as gully erosion or land use cannot be predicted with certainty beyond 200 years. If NRC adopts ne 1,0C0 year period, AMC urged that the pnrase "1,000 years, where practicable, and in any case, at least 200 years" from the EPA standarc be used. UMC questioned wnether cover cesigns with no maintenance are realistic and suggestec tna NRC nas pr0vided funcs for some maintenance. WNI, AMC, anc Kerr-McGee recommended deleting the pnase "without ongoing active maintenance" based on the EPA standard not flatly prohibiting some reliance en active maintenance. , 04/13/85 Si 10 CFR 40 CHANGES

l

Response

WY's comments highlighted an important reason for the reactions to the existing language and ae proposed change. The first paragraph of Criterion 1 is a statement of a very general goal or ob'jective, not a specific standard or requirement. The proposed change and associated editorial errors compounded the problem. The proposed change was not intended to set aside the EPA standard for nonradiological components in 40 CFR 264.111 referenced in 40 CFR 192. It was not intended to repeat the specific design standard being added to Criter-ion 6. Staff agrees, that on a general goal basis, the existing language was not totally inconsistent with EPA's intent. However, the reference to thousands of years can and did lead to misunderstandings. Staff still believes that the language needs modification. - Comments attacking the 1,000 years and advocating 200 years are really directed more at the E?A design standard and how it will ne imolemented in site specific actions than at siting implications. Staff disagrees with any position that would put the goal for protecting man and the environment from tailings at 200 years. Even site specific design decisions must assure that 200 will be met but only when 1,000 years is not practicable. The primary design standard is 1,000 years. Further, as a general goal, no planned reliance on active maintenance is consistent with the findings in the GEIS, the epa standard and tne Congressional intent in Section 161x(2) of the AEA that

             . . .the need for long term maintenance and monitoring. . .will be minimized and, to the maximum extent practicable, eliminated." Since Congress cic not flatly prohibit maintenance, NRC may consider it, but the preference for no maintenance is clear. When clearly stated as a goal and not a requirement, the goal would not preclude relying on active maintenance if no other prac-icaole solution exists. Keeping the goal for use in future siting and cesign decisions where compliance can be planned for is entirely consistent with the ALARA principle and minimizing the curden to future generations.

i Staff recommends clarifying Criterion 1 using a comoination of existing language and WY's suggested rewrite to show :ne goal versus s .ancard point anc i 04/13/85 32 10 CFR 40 CHANGES

to delete any specific time frame. Changing "shall" to "should" in the fourth paragraph of Criterion 1 will emphasize the status as a goal and be consistent with the reference to maintenance in the first sentence of Criterion 12. Recommended rule changes:

1. Revise the first paragraph of Criterion 1 to read:

               "The general goal or broad objective in siting and design decisions is permanent isolation of tailings and associated contaminants by minimi:ing     i disturcance and dispersion by natural forces, and to do so without ongoing maintenance. For practical reasons, specific siting decisions and design standards shall involve finite times (e.g., the longevity design standard in Criterion 6). The following site features which will contribute to such a goal or objective shall be considered in selecting among alternative tailings disposal sites or judging the adequacy of existing tailings sites:"

2. Change "shall" to "should" in the fourth paragraph so that it reads:

      " Tailings should be disposed of a in a manner that no active maintenance is required to preserve conditions of the site."

Modification 2.(b): This change would delete the grourdwater modifier "usaole" to be consistent with tne primary thrust of the EPA stancard to protect all groundwater. The ECNP, IL, and WY succorted this change. WNI urged that " usable" be left in Aopendix A and that all decisions on ground water protection be deferred to tne second rulemaking. Kerr-McGee also opposed tnis change. Kerr-McGee argued that it is arbitrary and capricious to protect unusable grouncwater since the costs would result in no benefit. Kerr-McGee urged that as a minimum, the l 1 cption for site specific decisions on ground-water protection ce acknowledged. i HMC supoorted all Kerr-McGee comments. The AMC and its supporters coposec the change for reasons discussed under Criterion 5 modifications. l 04/13/35 - 33 10 CFR 40 CHANGES

Resconse: The general thrust of the EPA stancard is to protect all grouncwater. The proposed change was intenced to emphasize this thrust, not set asice the site scecific option to pursue alternate concer tration limits which may be

based in part on the existing and potential use of the grounewater. The existing language in Criterion 1 (i.e., "... isolation of contaminants from ! usable groundwater sources...") sets use category as the primary goal which does conflict with the E?A standard. The proposed insert for Criterion 5 ciscussed under Criterion 5'should clarify this point and alleviate concerns f

that use category cannot be considered in decisions.

i Recommended Rule Change: Remove " usable" as proposed but add a clarifying inser to Criterion 5.

c. Criterion 3 1

Modification 3.(a): This change wculd delete the groundwater modifiers "high puality" to be consistent with the primary thrust of the E?A standard to protect all grouncwater. The ECN?, IL, and WY supported this change. Kerr McGee opposed this change to recuire protection of nonusable groundwater for the same arguments stated earlier. HMC su: ported all Kerr McGee comments. AMC anc sucporters ' opoosec the change consistent witn arguments elsewnere. Response: - As noted in response to =ccification 2(b), the tnrust of the EPA stancard is to protect all grouncwater and consicer quality as one of many factors in site scecific alternate concentration limit determinations. Recommended Rule Change: 04/18/85 34 10 C.:R 10 CHANGES

Remove "high quality" as proposed but add a clarifying insert to Criterien 5. .

d. Criterion 4 This change would delete " maximum possible flood" Modification 4.(a):

and insert " Probable Maximum Flood" (PMF). . The ECNP opposed this change and questioned the rationale given that WNI recommended the change represented the original intent of the provision. Kerr-McGee deletion of " maximum possible" with no replacement of mcdifiers. opposed this change and argued that neither the existing language nor the proposed change are apprcpriate. Kerr-McGee claimed that both are excessive anc tnerefore, inconsistent with the 1,000 year longevity period in the EPA standard. Kerr-McGee claimed that stabilization can ecmpensate for severe AMC and supporters also , fleeding. HMC supported all Kerr-McGee comments. objected to the existing modifiers and the proposed change and advocated a 200 year flood as c0st effective and adequate to protect health and safety and the environment. WY supported the change.as proposad,

Response

The intent Of paragraph (a) in Criterion 4 is to require that siting of tailings disposal areas minimize the upstream catchment area to reduce the The potential for erosien regardless of the magnitude of the design floed. modifiers " maximum possible" and " probable naximum" are both inappropriate since In order this criterien is not intended to discuss design ficed requirements. staff recommends' replacing to emchasize the primary purpose of tne requirement, "crocable maximum fleed" with "fleeds." The resulting language would closely track a similar Ccemission siting criteria for icw level waste sites in 10 CFR , Part 61. (See 10 CFR 61.50(a)(6).) Comments regarding the size of the design However staff notes that decisions on what specific flocc are therefore moct. desien floed should be used in analysis are site scecific and must be made t in the context of other site and design decisions. I 35 10 CFR 40 CHANGES 04/18/e5 l _-..n.-.,l.._______________ . . . . . . . . .

Recommended Rule Change: Celete the modiffers " maximum possible" and replace " flood" with "ficods."

e. Criterion 5 Several commenters offered general comments on conforming Criterion 5.

NM suggested that the nondegradation language stated in the rationale be included in Criterion 5. EPA expressed the view that, as a general matter, the preposed changes do not adequately reflect the EPA standard's distinction between new and existing sites. EPA specifically mentioned that the changes do not reflect the " existing portion" concept as defined in 40 CFR 192.3(j) and used in the primary standard in 40 CFR 192.32(a)(1). WNI expressed the view that none of the changes to. Criterion 5 should be made based on Commission plans described under Scope of This Proposal in the FR notice. WNI apparently read the scope to mean that no conforming changes related to groundwater should be made. Kerr-McGee argued that all changes to Criterion 5 should be deferred to the second rulemaking and that all existing ground water requirements in Criterien 5 should be suspenced or deleted in the interim. Kerr-McGee argued that such deferral would avoid a fragmented approach and allow more benefit / risk analysis. HMC suoported all Kerr-McGee comments. The AMC expressec strong objection to incorporation of any of ECA's ground water protection standards. The AMC basis repeated and expanced argu-ments that the EPA standard is invalid on jurisdictional grounds. AMC asserted that ne Solid Waste Disposal Act standards incorporated by EPA into 40 CFR 192 failed the Congressional mandate to be comparable to requirements for similar ha:ardcus materials, anc proviced legislative history to suoport the assertion. The AMC view is based on the lack of EPA standards for similar high volume waste such as mining wastes. The AMC ccncludes that the EPA standards are thus incon-sistant with law and NRC conformance violates Section 84(a)(3) of the AEA. AMC also offered cojections to the standards based on practicality (e.g., all liners leak, so a no-seepage standard is impractical) and on no adequate cost / benefit analysis by EPA or NRC. AMC also noted that EPA comments on Appendix A when initially pec csed dic net enallenge NRC's ground water protection strategy. 04/18/85 36 10 CFR 40 CFANGES

AMC offered a complete rewrite of Criterion 5 to reflect its reccmmended l acproach to groundwater involving: (1) protection frem unreasonable risks and considerion of groundwater use category, (2) distinction between existing and new sites, (3) costs c:mmensurate with risk, and 4) site specific implementation. WY generally supported all proposed changes to Criterion 5. WY also ! urged flexibility in requiring liners at all new or expanded facilities, and NRC investigation and inclusion of processes to dry tailings.

Response

The c:mments clearly reflect confusion about the status of the EPA I grouncwater protection standards, the status of 10 CFR 40 Appendix A require-ments, and the basis for proposing the few changes related to ground water t protaction in advance of more c:mprehensive rulemaking on groundwater. As discussed under the general issues, the EPA standards have been in effect and apolicable in regulation since December 6, 1983. NRC rulemaking is not required , to impose the EPA standards. NRC staff believes it has no option but to conform i and implement and enforce the EPA standards. Staff thus believes that both the - EPA standards and Ap endix A are effective en licensees. . The pre:osed changes to Accendix A, and Criterion 5 '1 particular, ere all intanced to reflect tnat the EPA standard reflects the RCRA ground-water Orotection strategy and starts fecm a premise tnat no see: age frcm the j im:cunements or cegradation of grcunewater is allcwed and that all gecuncwater is to be protectec regardless of quality or use category. The enanges were I intencec to remove languagc tnat explicitly conflictec witn this casic strategy. They were not intended to fully c:nform to or to mccify tne EPA stancarc in any Way. i l The EPA general c:mment that the distincti:n between new and existing sites was not reflected was based primarily on the brief rationale for the i pr0pcsed change rather than the enanges themselves. The rationale did not address the c:mplex site specific options provided uncer the EPA stancare (i.e., the use of si:e s:ecific alternate concentration limits as the secondary

stancarc). Staff carefully reviewee Criterion 5 as an acjunct to tne EPA i

04/13/85 37 10 CFR 40 CHANGES

standards. Staff concluded that Criterion 5, with the proposed changes, does not impact the. existing /new site provisions and site specific provisions of 40 CFR 192 and that no additional changes are warranted on this basis. The AMC proposed rewrite will be i:ansidered as part of the ANPRM analysis and scoping. The AMC approach would require intensive analysis and support and would delay conformance. , The EPA standard itself and the proposed insert to Appendix A's Introduction provide for site specific decisions on any issue. " Processes to. dewater tailings are already listed as a consideration in Criterion 5, so no further action is needed to acdress this comment of WY. i l Staff concludes that specific clarification of the regulatory situa-tion on groundwater is needed. A minor change to provide a subject for the list of considerations in Criterion 5 is also recommended for clarity. Recommended Rule Changes:

1. Insert the following paragraph as the first paragraph of Criterion 5:

                                            " Licensees and acclicants are cautionec 'that the grounc water pro-visions of 40 CFR 192, Subparts D and E, are binding. The thrust of the EPA stancards in 40 CFR 192 is nondegradation of all groundwater. The primary ground water. standard in 40 CFR 192.32(a)(1), wnich applies to new or expanded impoundments, does not incluce consideration of existing or future ground water cuality.      The secondary standard in 40 CFR 192.32(a)(2) applies to management of all byproduct material including existing and new or expanced imeouncments.

In :ne secondary standard, several groundwater quality criteria are considered, especially in site specific decisions on applications for alternate concentra-tion limits. Criterion 5 supplements and do,es not conflict with or modify pro /isions of 40 CFR 192. Until a- 11ess the Commission undertakes additional rulemaking as describec in the advance notice of proposed rulemaking puolished in the Federal Regtster on November 26, 1984 (49 FR 46425), licensees and l l ! 04/18/85 38 10 CFR 40 CHANGES i __ _ - -- . . _ . . _ . - . . - . . . . . . . . . . . . . . . . . . . .

applicants must refer to both 10 CFR Part 40 and 40 CFR Part 192 for the complete set of applicable ground-water protection requirements."

2. Make the proposed first sentence the second paragraph of Criterion 5 and revise it to read:

                            "In developing and conducting groundwater protection programs, appli-cants and licensees shall consider the following:"

Modification 5.(a): This change would delete language implying that seepage to groundwater is acceptable if it does not change the use category. 1 The ECNP generally supported the change but expressed concern that this modification might preclude deep burial. ECNP also questioned how the EPA j standard for perfect containment will be implemented and enforced. EPA noted that the rationale did not acknowledge that only new disposal areas must meet the no seepage requirements. EPA also suggested that a footnote referring to tne potential for additional changes from the second rulemaking be acded. WNI recommended that the change not be made and that all changes related to ground-l i water be deferred to the second rulemaking noticed in the accompanying ANpRM. WNI cited the severe impact on existing sites if no seecage and no consideration 1 of acuifer use category are allowed. Kerr-McGee supported celetion of the first sentence based on the commenter's position that nonusa:le grouncwater does not need protection and the sentence requires mitigation of all seapage, not just

!                see: age that woule contact usaole grounewater. Consistent with :nis position, J

j Kerr-McGee a:posec deletion of the second sentence. Kerr-McGee outlined the t 4 cenefits from discosal of tailings as cackfill in :ne uncerground mines from ! which tne ore came and expressed concern that celeting tne reference to pre- ! serving grounc-water use category woule eliminate such a proposal. Kerr-McGee correctly notes that the primary groundwater water standard in 40 CFR 192.32(a)(1) applies to surface impounements only and the mine backfill opera-i tion would not be subject to the primary standard. HMC sucported all Kerr-VcGee comments. AMC c: cosec all pro:esed Criterion 5 mocifications. Dawn opposec :ne enange because, in its view, the enange set asice the flexibility cuilt into ne 04/18/35 39 10 CFR 40 CHANGES

EPA groundwater standards. Dawn referenced the secondary ground-water standards referenced in 40 CFR 192 that provide for degradation of groundwater when public health and safety and the environment are not at risk. Dawn supported the need for flexibility based on practicality, remoteness of sites, and aquifer use potential. Response: , The ECNP and industry reservations and concerns about Criterion 5 and its implementation seem to stem in part from a lack of understanding that grounewater protection requirements are defined by both Appendix A of 10 CFR 40 and the EPA standards. The proposed changes were intended only to make Appen-dix A stand alone only on non groundwater matters and remove conflicts with the EPA ground water standards. The insert outlining the dual recuirements described in the general discussion on Criterion 5 should alleviate much of the concerns. It will not alleviate dissatisfaction with the EPA standard itself, however. The insert also addresses EPA's point on referencing the second step rulemaking. The option for underground mi-ne backfill disposal advocated by Kerr-McGee is a unique and site specific circumstance not precluded by NRC or EPA rules. Since it is not precluded, staff does not believe that specific require-ments or changes are needed to be able to address this option in a site specific licensing cecision. Recommended Rule Change: Celete tne language as proposed and rely on tne Criterion 5 insert. Modification 5.(b): This enange would delete language referring to bottom liners of " low permeacility." The ECNP also generally supoorted tnis change with similar reserva-tiens ex:ressed for modification 5(a). Kerr-McGee objected to this change on the grounds that the remaining language could imoly that synthetic liners must be installed under existing tailings piles. Kerr-McGee statec that sucn installation is not required by the EPA standard since existing portions are e 04/18/35 40 10 CFR 40 CHANGES i _ ___ ... .. . . _ .

exempted under 40 CFR 192.32(a)(1) and furthermore is neither cost effective AMC opposed all proposed nor justified. HMC supported all Kerr-McGee' comments. Dawn opposed this modification on technical grounds. Criterion 5 modifications. Dawn pointed out that no material is totally impermeable and that state of the m/sec. art liners have permeability ratings on the order of 10 82 Response: , The Kerr-McGee anc Dawn comments are the only ones involving issues Kerr-McGee's concern that synthetic liners would be not addressed elsewhere. required under existing tailings impoundments does not stem from the procosed The proposed deletion results in having to consider deletion of modiff ers. Staff installation of bottom liners instead of low permeability bottom liners. does not see how this modest change imoacts the resolution of what type of remedial ground-water protection action may be required at existing sites. Dawn's observation that in an absolute and theoretical sense The only way even syntnetic liners are not impermeable, is technically correct. s/nthetic liners can meet the EPA standards in 40 CFR 192 is in con tnat the syntnetic liner recuirements applies only to the operation and closure Staff concern pr.oses (20-30 see.s), not to the long term post closure pnase. is tnat most oeople reading the reference to " low permeability" will not consicer the absolute or snecretical concept. Staff believes that most reacers l I woulc consider clay as low permeability and synthetic materials as imoermeac e. Deletion of " low :ermeacility" leaves tne issue of what type of liners are acceptable to the more specific EPA standards. Recommenced Rule Change: Delete " low ;ermeability" as procesed. Modification 5.(c): This change would celete a reference to 1

potential use categcry as a stancard. l The ECNP sup;orted the enange but questioned implementation ascects. Kerr-McGee accosed NRC's noncegracatien rationale for snis enange but succorted 41 10 CFR 40 CHANGES 04/13/35

                                               . _ . ~ . .

the change. Kerr-McGee claimed that restoration to use category may be unjusti-fied and stated that the deletion would leave the issue of degree of restoration open. HMC supported all Kerr-McGee commenti. AMC opposed all prooosed changes to Criterion 5. Dawn opposed the change arguing that the existing language is inconsistent with considerations allowed in ~ determining alternate concentration limits under the EPA standard and that deletion allows NRC to be more restric-tive in degree of restoration than the existing r,ule. Dawn indicated that

situations at existing facilities will require flexibility to consider ground-i water quality in restoration decisions.

Response

Staff agrees that deletion of the requirement to restore'to ground-water "to its potential use before milling operations began to the maximum extent practicable" leaves the cegree of restoration open. This was the intent of the proposed change. Staff also agrees that the degree may be more or less restrictive than use category preservation. The degree of restoration will be i determined in a site specific basis in accordance with the EPA groundwater , protecticn standards. The. insert at tne beginning of Criterion 5 should help empnasi:e the dual requirements. Recommended Rule Change: 4 , Celete the phrase as proposed. s Modification 5.(d): This enange woulc celete references to ase category and tailings in contact with grounewater. The ECNP succortec this change. EPA suggestec nat this language referring to protecting groundwater by isolation of tailings and tailings solutions be retained. Kerr-McGee opoosed the celetion for the same reasons noted for modification 5(a). HMC supported all Kerr WeGee c:mments. AMC coposed all prooosed enanges to Criterion 5. 4 i 04/13/35 42 10 CFR 40 CHANGES

Response

The only new issue in ecmments on this proposed change is EPA's The general goal of isolation is suggestien to keep the isolation goal. f - (iee included and emphasi:ed in the revised first paragraph of Criterion 1. i Medification 2(a) discussion.) f Recommended Rule Change: Delete the paragraph as proposed. i Mcdification 5.(e): The grounewater med N WW d M l t celeted. Kerr-McGee opposed the change and The ECNP supported this change. indicated that the change would impose costly monitoring or other requirements AMC opposed HMC supported all Kerr-McGee comments. for nonusable groundwater. all peceosed changes to Criterion 5. f

Response

No new issues or information were icentified in comments on this I l

          . change. The enange would result in having to enaracterize the wnsie ground-Sucr enaracteri-water regime at the site but coes not impose any monitoring.

f any requests for alternatives to syn:cetic

atien would be necessarr ;c supper 192 ground-l liners or pecposals fe" alternate concentra f en Ifmits under 40 CF'n j

water requirements and is thus consistent with the EPA stancard, t Rec mmenced Rule Change: Delete " usable" as proposed. i ( i 43 10 CFR 40 CHANGES i 04/13/35 l

                                          -    - - . - =:- - .            :.::: - -     .. :;      = L - - _ -

1 i, l

f. Criterion 6 Modification 6.(a): This change would delete the two pic: curies per square meter per second raden flux and minimum 3 meter cover thickness j provisions and insert EPA's radon flux and longevity and stabili:ation standard.

ECNP and AMC occosed these changes in their entirety. The ECNP e strongly opposed these changes based on views that the EPA standard inadequately

;          protects the environment.         ECNP further expressed the view that even the more

restrictive NRC requirements proposed for deletion may not be adequate protec-

tion. AMC opposed incorporation of the EPA standards based on jurisdictional arguments, i.e. the standards apply inside the site bcundary and are therefore

 !         invalid. AMC also argued that no limit on radon emissions is warranted based
!          on risk and therefore that any limit does not adequately balance cost and j          risks. The AMC repeated arguments that active maintenance should be included j          to allow higher radon flux values by relying on limited access to sites and that the stabilization _ period for uranium tailings should be 200 years, not 1,000, if included.

Response

7 The basic arguments expressed by ECNP and AMC were addressed generi-cally under general issues dealing witn comments On the EPA standard itself, i Ccmmenters also specifically opoosed inclueng tne EPA 20 pic: curie flux stancard. EDF, IL, and Lewis objected to deleting tne Accendix A 2 pico-curie flux value and adoption of the 20 value in the EPA stancard as being too lax. The EDF argued that the 2 cic: curie flux is ALARA, is easily met cased on 2 the Cecartment 'of Energy's Title I research experience and is cost effective. WNI ocjected to 11ct. ' oration of :ne 20 picoeurie flux claiming snat costs to c:mply far outweigr. any banefits.

Response

i l C:mments objecting to the 20 picoeurte flux generally used the same l , arguments as used against ne EPA stancard accressac under' general issues. a 04/13/95 44 10 CFR 40 CHANGES 1 i . . . . . , _ . . . , - .

                                                    -   . . . . - . .       ..   .      w.,.-.   .

i The one exception is the EDF reference to Title I researen. The CCE Title f 1 } research experience compared costs for different types of cover strategies; i however theses 'tudies didn't perform analyses which would result in conclusions l on the warranted levels of raden releases from covered tailings. To truly i investigate whether the meeting of the 2 pCi/m2-see flux criterion is ALARA l would require a cost-benefit analysis, which EPA did in its Final Environmental ImpactStatementforStandardsfortheControlofByproductMaterialsfrom UnranibeOrePrecessing(40CFRPart192), Volumes 1and2, EPA 520/1-83-008-1 and 2, September,1983 and Regulatory Impact Analysis of Final Environmental ! Standards for Uranium Mill Tailing at Active Sites, EPA 520/1-83-010, September, 1983. As a result of the EPA analysis, the additional deaths avoided didn't warrant the reduction of the criterion below 20 pct /m2-see from a cost benefit stancpoint. i

 ;                   It should also be noted that although laboratory and field experience                   i by both COE and NRC confirm that the 2 pCf /m2-see criterton can be met, it is
!        difficult to prove that it can be significantly maintained over the long-term due to weathering, settlement and other defect generating mechanisms. Moreover, j         the proximity of the 2 pCi/m2-see flux to the natural raden flux fr:m background                    l
!        sources allows for too much uncerti.inty in the predictive methodologies and                        ,

ranges for parameter input values. Little relief can be obtained.by actual ' monitoring, since, monitoring data results at these low radiation levels can be ) of marginal value, cue to the levels of uncertainty involved. The. uncertainty i is accressed in the design stancard by the " reasonable assurance" implementa-i tien criterien, wherecy NRC utilizes reasonably conservative parameter values ! i t in predicting the long-term radon flux. The resulting flux levels are usually ' much less than a factor of 10 above tne 2 pCi/m2-see flux criterien usec in , the past. 1 Three ecmmentors argued against deleting tne minimum 3 meter cover [ requirement. Lewis cbjected to deletion of " requirements for specific ground cover", i.e., the 3 meter minimum, and expressac the view that Criterion 6 "is destroyec." EPA rec:mmended that the 3 meter minimum cover requirement be kect "to provide, reasonable assurance of adecuate long-teem performance of the l cover under erosienal and other stresses." The EPI similarly cbjected to l deletion of the 3 meter minimum cover requirement based on the protecticn cectn i l l 04./18/85 45 10 CFR 40 CHANGES j . . . . . - . . . - . . . . .

affords against erosion and intrusion. EPI also argued that " reasonable assur-ance" of meeting the 20 picoeurie flux requires a thicker cover than one that merely meets the 20 limit.

Response

Comments objecting to deleting the 3 meter minimum cover focused on the need for erosion and intrusion protection as adequate reason for 3 meters incependent of any radon flux consideration. As noted in the rationale for the proposed change, the specific thickness of 3 meters was derived from radon flux considerations. These considerations were based on meeting the 2 pico-curie or twice-background performance criteria and are clearly inconsistent with the 20 picccurie value. Staff agreed in the GEIS and agrees now that effective covers are needed for long term protection. Site specific experience and further research and analysis en long term stability (e.g., NUREG-3397, " Design Considerations for Long-Term Stabilt:ation of Uranium Mill Tailings Impound-ments") have indicated that effective alternatives to total reliance on soil thickness are feasible and may make more environmental and econcmic sense. Well designed rock covers on the tecs and side slopes of reclaimed tailings can provide sufficient erosion protection so that a soil cover of less enan 3 meters may be acceptable. Deletion of the minimum cover thickness does cet relieve licensees frem the requirement to provide effective covers. It provides for site scecific alternative cesigns to accomplish the same erosion and intrucer protection. While staff agrees tnat "reasonacle assurance" requires some cegree of conservatism, s aff coes net agree that " reasonable assurance" dictates a factor of ten conservatism, as EPI's arguments indicate, CO objected to inclucing the 200 year tinimum lengevity recuirement basec on :ne small incremental costs and practicality of meeting the longer (1,C00 year) time and the lengevity Of the ha: arcs from tailings. Ecology / Alert questioned the 200 year "locchole." As notec earlier, AMC advecated a 200 year standarc. 04/19/85 46 10 CFR 40 CHANGES

                                                        ,, '       /                                                                   I

Response

r The 200 year minimum longevity requirement provides relief in those unicue reclamation situations where the 1,000 year criterion can be shown to be tco much of a cost hardship to satisfy. Staff views the ECA longevity

standarc to be 1,000 years unless site scecific circumstances preclude meeting 1,000. year s . Staff rejects the AMC assertion that the standard is or should be 200 years with no attempt to meet 1,000 years. The language and intent of the EPA standard preposed for insertion in Criterion 6 is clear in this regard.

IL objected to NRC's proposed use of design standards and suggested that NRC rules explicitly require proof that the design has been met by the reclamation actions. In support of its position, IL cited EPA /NRC jurisdiction,

dis,posal and engineering experience, and the long-term hazarcs. 1 Response: , The EPA longevt.ty and radon standard is written as a design standard, i Requirements to confirm adequacy of design during and after construction have i merit but will be very site and desian specific. Normally, key cesign features and quality control would be specifiad in site scecific license conditions. Normal insoection and enforcement activities would inc'lude cuality c:ntrol and

aliance with cesigns approved and s:ecified in license concitions. The site s:ecific conditions and levels of uncertainty in :ned5 sign might result in seme reec to confirm design parameters after tne fact but sucn a need should be the exception. Excressing the standard as a design standard does not preclude ,

such site scecift: findings. The related issue of radon flux monitoring is discusseduncerthenextmocification(5.(b)](. Three commenters offerec clarifying suggestions. EPA recommende'd clarifying tne reference to " permanent cisposal". NM rec:mmended cefining the term "cisposal area". )Y suggested tnat NRC address now it will imclement anc acoly tne lorgevity cesign standard anc make findings. WY also suggested that the stancarc :e clarifies to make it clear, that to the extent cracticable, the cover would still meet the 20 pic: curie flux limit at 'ine enc of tne 1,000 year design :eriod. r s 04/13/85 47 10 CFR 40 CHANGES

   .. . . w ., es see ......-ew.~.                      e. .   .   ..e. e -                e .e.....                          ...          . .               . i y                      . . . _ _ . _ . _           _ _ ,      . . _ . _ _ .          . .,_   , - , _ _ , -

Response

Staff agrees with the EPA suggestion to clarify " permanent disposal" and recommends the change listed below. The " disposal area" definition is addressed indirectly in the third paragraph of the proposed Criterion 6. The third paragraph picks up the threshold activity limits that define when the longevity and radon requirements on post-closure., apply. EPA defined disposal area" only in terms of the applicability of 40 CFR 192.32(b)(1). Staff sees no need for additional definition. The WY suggestion to address implementa-tion would result in a level of detail in the rule normally relegated to NRC guidance documents. Existing guidance documents on reclamation planning and design may need some followup modification. The NRC is planning to review or has reviewed existing documents and is exploring the need for additional implementing guidance. Staff agrees with WY nat the EPA stancard is not completely clear that the flux limit is to be met throughout the effective design life to the extent practicable and proposes the change listed below. Kerr-McGee supported the change for uranium byproduct material but cocesed including thorium byproduct material standards. Kerr-McGee correctly coservec that its West Chicago facility is the only current thorium facility subject to the thorium standards and urged that the generic standards should not ce accliec or tnat at least explicit flexibility for site specific decisions snould be included in Criterion 6. Kerr-McGee did not icentify specific preo-lems and based its arguments on inadequate analysis by EPA in issuing the stand-ards. HMC sup;crted all Kerr-McGee comments. The AMC cojected to including thorium byproduct material provisions and suggested a 50 year stabilt:ation time ceriod for thorium if included. The short time period wa supported by arguments on shorter lived radienuclices (in the thorium 232 chain) and rel*- ance on institutional controls. VI's comments on the technical basis for the EPA :norium values are ciscussed under Modification 6(d).

Response

ThecommentscoposingincorporationoftheEPAstandardsfor$horium cyprocuct material are generally expressing cissatisfaction with the EPA stand-arc itself. The E?A standard in 40 CFR 192.42 provices for suestitute generic 1 04/13/35 48 10 CFR 40 CHANGES l l

E provisions to those in Subpart E, but with EPA concurrence. Thus a rulemaking on different thorium standards would be totally discretionary on NRC's part and require extensive supporting analysis. The thorium standards proposed for insertion are alreacy'in effect on NRC and state licensees and are nondiscre-l tiorary. NRC repetition in 10 CFR 40 has no bearing on their status. Staff f does- not consider rulemaking for the one site subject to the standard for the I foreseeable future to be warranted. NRC has the, authority to consider and I approve site specific alternatives if the finding in Section 84c can be made. I Staf f believes that the objective of having 10 CFR 40 be complete on all non-grouncwater protection requirements justifies repetition of already binding standards. As a technical observation, staff notes that AMC arguments on shorter periods of control required do not take into account the real world mix of naturally occurring isotoces of natural thorium and the presence of uranium and its daughters in most thorium ores. The complexity of the mixtures high-lights the site specific aspects and the difficulty of developing alternative generic standards. Recommended Rule Changes:

1. In tne first sentence of proposed new Criterion 6, delete the words "In cases wnere waste byprocuct material is to be permanently disposed, an earthen cover shall be placed" and insert "In disposing of waste byproduct material, licensees shall place an eartnen cover".

2. Insert at the end of the first sentence of proposec new Criterien 6 after (pci/m2 s) the phrase "to the extent practicable throughout ne effective design life determinec pursuant to (i) acove" Modification 6.(b): This change we'uld add the two racon flux mocify-ing footnotes from the EPA standard that specify that no monitoring is repuired, averaging is allowec, and cover materials do not have to be considered in meet-ing the flux limit.

The ECNP opposed adding the epa fod: notes because the footnotes state that no monitoring of the radon flux is recuired and that averaging is allowed. The EDF aso argued that racon releases snoulc be monitored for 40-50 years after 04/13/85 49 10 CFR 40 CHANGES _ __-______m--_ _ - - - -

reclamation. IL, CO, NM and E?I also objected to no monitoring of flux levels. C0 objected that the averaging provision is too vague. Il expressed concern that the language clarifying that cover materials not be considered in the 20 picoeurie flux calculations would result in the use of high radium content soils for covers. Xerr-McGee noted that the changes are consistent with the EPA standard but repeated the view that the EPA stardard is invalid. HMC supported all Kerr-McGee c mments. The AMC agreed with including footnote 1 as proposed since it clarifies that the standard is a design standard, but because of AMC's position that no limits on raden flux are warranted, footnote 2 should not be incorporated.

Response

The footnotes quoted frem the EPA standards in 40 CFR 192 are necessary 1 to define how EPA intended the longevity and radon standards to be used. The footnotes set the conditions which EPA supported as a reasonable balance of cost 1 and benefit that would be achievable with present state of the art. l While NRC dces have the authority to require monitoring of flux levels as the comments note, the practical problems which led EPA to issue a design standard and NRC experience in radon attenuation measurements and calculations convince staff that flux monitoring should not be mandated. Measurement of flux levels in the field is difficult and subject to wide variations cue to factors such as sensitivity to measurement methods, metecrological variations, non-nemcgeneity of the tailings piles, and disturbance of the radon releases by the meni 0 ring process. Monitoring flux levels in c:n: rolled experimental situa-tiens can provide useful data with sufficient precision to evaluate the relative imocr:ance of design consicerations sucn as moisture conten: Or vegetative pene-tratien. Mcwever, the difficulties and variations in measurements and measure-ment techniques convince staff that :ne EPA design standard should not be imple-mented as a performance standard. NRC's current method for providing reasonable assurance that the E?A flux stancard will be me focuses on the selection and apolication of parameters and calculational methedclogy for radon barrier design. Experience and researen to date have included development and valida-tien cf standardized calculation methccs and determining the relative imocr ance 04/12/85 50 10 CFR 40 CHANGES 6 em - . . .. w ee s- *=-s-pe.,e e e -- *- ** e===-., e --- -- w e ,e - - - - - . r .e-- v w -- <- + - - - - - ,- em,

of individual parameters. Some parameters affect calculated cover requirements very little from site to site. Others are very site specific and may require field and laboratory data. Parameter values must be enosen to represent the expected long-term conditions of the cover. NRC's approach is the approach ECA intended, involves conservative site specific resolution, and commits NRC and DOE or licensee resources up front to properly design the cover before the reclamation work begins. Further, NRC expects to review quality assurance records during construction to assure that the approved design is implemented in the field. In summary, staff believes that current design and review methods provide ample assurances. Staff notes that Agreement States such as CO can adopt more restrictive standards than EPA or NRC and may mandate monitoring if desired. Staff experience also supports the need for averaging over the imocundment. The tailings are not homogeneous. Airborne transport of raden offsite results in mixing before members of the public are exposed so that doses are reflected by average values. Also, the averaging minimizes the effects of variability in the values of parameters and reduces the need to specify error ranges. Detail.s on calculation methods are more appropriate in guidance documents that can be tailored to site specific conditions and track state of the art and experience. IL's concern about high radium content of cover materials is addressed in the second paragraph of the proposed modifiec Criterion 6. The second para-graoh contains the requirements on low radium content tnat were alreacy in Appendix A. The footnote only clarifies that the EPA stancard applies to the tailings flux through the cover anc that racon from cover materials are not to be included in demonstrating comoliance with the 20 picocurie flux. Proposed Rule Change:

                      , Add the footnotes as proposed.

Modification 6.(c): This change would correct a typograonical error - and delete the 3 meter recuirement. 04/13/85 51 10 CFR 40 CHANGES

ECNP, IL, and EPI opposed deletion of the 3 meter minimum earth cover requirement as noted under Modification 6(a). Kerr-McGee anc AMC and their supporters generally supported the change.

Response

See Modification 6(a). Proposed Rule Change: Correct typographical error and delete 3 meter requirements as proposed. Mcdification 6.(d): This change would add the threshold radium levels for applicability of the inserted EPA standard on longevity and control of racen releases. ECNP c: posed this change and advocated an absolute nondegradation stancard for radon releases. C0 expressed the view that since averaging over 100 square meters allows highly contaminated small areas to be ignored, it is insufficiently protective. UT offered a number of technical arguments relating to raden producti:n on why the threshold radium 228 values for thorium byproduct material should be different frem uranium values. UT suggested that the thorium limits from the EPA standard not be addec to NRC rules since tney are unjustifiably nign. Kerr-McGee cid not scecifically comment on this change but i ts Ocsi-tien on Mccification 6(a) and (b) would imoly that no therium provisions sncule be inclucec. AMC Opposed the modification cased on juriscictional arguments anc the lack of tecnnical consistency between the thresnoic values and the 20 pic:- curie flux limit. AMC stressed that the allewable radon releases from the tail-ings is higner than the racon releases that result from contamination at the thresholc limits. AMC also argued that institutional controls had not been adequately considered by EPA in setting the limits and snat tne limits were . not based en realistic risk assessment. 04/18/35 52 10 CFR 40 CHANGES

                                                                                           ,    ,-  w 4- g-   y -

Response

The language proposed for insertion is needed to reflect the cond'- tions uncer which EPA intended the longevity and radon standard to acoly. The modification as proposed would allow NRC to be more restrictive if warranted by site specific conditions. NRC may require some degree of control for areas contaminated above background but below the threshold levels. EPA acknowledged this option in its rulemaking. Such site specific decisions would be a part of the NEPA review of licensee's reclamation plans. Explicit mention of this option in Appendix A is not required to maintain the option for controls and the proposed change'does not preclude additional controls. All other comments were directed at the EPA standard, not NRC optiens. Recommenced Rule Change: Add the paragrapn as proposed.

g. Criterion 8 Modification 7.(a): The change would add the EPA standard language on the as low as practicable goals for radon releases during operations.

The ECNP expressed reservations about imolementation and enforcement of the as low as practicable goal and the lack of specific time limits for completion of stabili:ation and radon control after operations cease. EDF expressac more pointed concerns on time limits and proposed additional changes to address their concerns. WNI had no cbjection. Kerr-McGee had no cojection other nan general cojection to the EPA stancards. AMC and succorters recom-menced that the word " practicable" be deleted and the phrase "reasonaoly acnievable" be inserted to more accurately reflect EPA intent. AMC cited E?A's intent as described in the preamole to final 40 CFR 192 (48 FR 45933) to implemen: the Federal Radiation Protection Guidance of May 13, 1960. As EPA recogni:ed in the preamole, "this guidance is currently known as the 'as low as reasonably acnievable' ( ALARA) principle". AMC also noted that the language enange from practicable to ALARA is reflected in Commission rules in 10 CFR 20. 0?/18/85 53 10 CFR 40 CHANGES

                                                                 -m-,        e,                    --        - y

Response

As noted earlier, discretionary additiunal changes such as time limits, interim stabili:ation, and phased disposal recommended by EDF and others were considered outside the scope of this action. Staff agrees that EPA's intent was to impose the ALARA principle and that ALARA is more consistent with Commission radfation protection policies as reflected in 10 CFR Part 20. The actual language in a standard has higher legal force than the preamble stating intent, but in this case since numerical values or other specific provisions are not involved, the Commission has more flexibility in conforming. Staff agrees that the intended general guidance is more accurately ALARA. Recommended Rule Change: Add the proposed modification but delete " practicable" and insert

    " reasonably achievable" Mcdification 7.(b): These changes would add language fecm the EPA standarc imposing 40 CFR 190 epuivalent limits for thorium byproduct materials and compliance with 40 CFR part 440, Subcar: C.

The ECNP Objected to the " reasonable assurance" language in the text adced from the EPA standard and suggested that NRC was replacing actual stan-darcs with this insert. WNI noted no comment on nis change. .< err McGee Op00 sed including the thorium bypr0 duct standards for the same reasons notec anc respenced to uncer Mocificatien 6(a). HMC supported all Kerr McGee c:mments. The AMC rec:mmended that waiver previsions from a recent EPA rulemaking uncer the Clean Air Act (50 FR 5190, February 6, 1985) be incorporated into one thorium cose limits. The AMC also opposed adding the language requiring compliance with 40 CFR Par: 140, Subpar: C stating that these regulations are invalid since E?A lacks authority to regulate byproduct material under the Clean Water Act. 04/13/35 5a 10 CFR 40 CHANGES t

Response

The proposed text was quoted verba-tim fecm the EPA stancard in 40 CFR 192. No deletions or modifications of existing NRC rules are involved. The proposed change incorporates for clarity standards that are already binding on NRC licensees for clarity and eliminates the need to refer to 40 CFR 192 for any requirements other than groundwater protection. While the waiver provision suggested by AMC may have merit in considering site specific situatiens, the staff does not believe that such a generic discretionary rulemaking is warranted. Staff has no basis to act on AMC arguments that 40 CFR 440, Subpart C, is invalid. Recommended Rule Change: Add the modification as proposed.

h. Modification 8: Criteria 2, 7, 9, 10, 11, and 12 not affected by proposed changes.

T EPA noted tha: the second step rulemaking on groundwater and other previsions to be ccmcarable to SWDA requirements may affect these criteria. No respense :: this correct coservation is needed. Changes to :nese criteria rec mmended by commenters are adcressed Under Scope of Rulemaking as a general issue. 04/19/85 55 10 CFR 40 CHANGES

46424 Federal Register / Vol. 49 No. 228 / Mindry, Novemb;r 26, 1984 / Pr: posed Ruhs eter areas of100 square meters, which. as a needed correcuve actions have been based on Commission. approved cost result of byproduct matenal does not exceed identified and implemented. All such estimates m a Commission. approved plan the background level by more than: (i) 5 cessations. cos.ective scuons. and re. starts for:(1) Decontaminanon and picocunes per gram (pCi/g] of radium-226 or. shall be reported to the appropnate NRC decommissioning of mill buddings and the m the case of thonum byproduct matenal, reg:onal office as indicated in Cntenon 8A. in milling site to lesels which would allow ra6um-2 8. aversged over the first 15 wntmg. withm to days of the subsequent unrestncted use of these areas upon centimeters (cm) helow the surface. and (ii) restart. decommissionmg. and (21 the reclamation of 15 pCi/g of radiura-2:s. or. m the case of To control dusting from tail.ings. that tailmgs and/or waste disposal areas in thinum byproduct matenal radium-;28. portion not covered by standmg liquids shall accordance with technical entena dehneated cveraged over 15.cm thics layers more than be wetted or chemically stabhzed to prevent in Section I of this Appendix. The licensee 15 cm below the surface. or mmimize blowmg and dustmg to the shall submit this p:an m conjunction with an Criscrion 7-At imi one f ull mer prior in maumum extent reasonably achievable.This environmental report that addresses the ony major site construction. a preoperational requirement may be relaxed if tailmgs are expected environmentalimpacts of the monitonng protr am shall be conducted to effective!y sheltered from wind, such as may mdimg operation. decommissiorung and provide complete caseline data on a millmg be the case where they are disposed of below tailmgs reclamanon. and evaluates sit) and its environs. Throughc ut the grade and the tathngs surface is not exposed construction and operating phases of the mill alternatnes for mitigstmg these impacts. The to wmd. Considerauon shall be given m surety shall also cover the payment of the an operational momtonng program shall be planning tat!mgs disposal programs to charge for long. term surveillance and control conducted to measure or evaluate compliance methods which would allow phased covenna required by Cntenon to. !n establishmg with applicable standards and regulations. to and reclamation of tailings impoundments svaluate performance of control systems and specific surety arrangements, the licensee's s:nce this will help in controllms particulate procedures: to evaluate environmental and radon emissions dunng operation. To cost enumates shall take into account total irnpacts of operatieru and to detect potential control dustmg from diffuse sources. su:h as costs that would be incurred if an long. term effects. taihngs and ore pads where automatic mdependent contractor were hired to perform Cntenon 6-Mi3ing operations shall be the decommissioning and reclamation work. conducted so that all airborne effluent controls do not apply, operators shall develop In order to avoid unnecessary duplication wntten operstmg procedures spectfying the releases are reduced to levels as low as is and expense. the Commission may accept methods of control which will be unlized. financial sureties that have been reasonably achievable. The pnmary means of Milling operations producing or involves cccomphshma this shall be by means of thonum byproduct matenal shall be consohdated with financial or surety omission controls. Insututional controls, such arrangements estabbshed to meet contturted m such a manner as so proude cs extending the site boundary and exclusion requirements of other Federal or state reasonable assurance that the annual dose agencies and/or local governing bodies for area.may be employed to ensure that offsite equivalent does not exceed 25 millitems to sxposure limits are met. but only after all the whole body. 75 millirems to the thynod. such decommisslomng. decontaminaton, practicable measuies have been taken to reclamanon. and long. term site surveillance and 25 milbreme to any other organ of any contrul emissions at the source. member of the public as a result of exposures and control provided such arrangements are Notw:thstac6ng the existence of indmdual to the planned ischarge of radioacuve considered adequate to sausfy these dose standarda, stnct control of emissions is matenals. redon-200 and its daughters requirements and that the portion of the n?csssary to assure that popula9on excepted. to the general environment. surery which covers the d exposures are reduced to the maumurn and reclamation of the mikcommissioning mill tedings site Uranium and thonum b) product materials extInt reasonabiy athiesable and to aso.d shall be managed so as to conform to the and associated areas, and the long. term fundmg charge is clearly identified and site contaminanon. The greatest pctent2al appbcable provisions of Title 40 of the Code sources of offsite ra&ation expost.re las:de of Federal Regulations. Part 440. " Ore Mming c mmitted for use m accomplishmg these from radon exposure) are dustma from dry and Dressing Pomt Source Category: Effluent activities. The licensee a surety mecharusm surfaces of the tai;mg 6sposal area not Lmitations Guidelines and New Source wdl be reviewed annually by the Commission cov: red by tadmgs solution and emissions to assure that sufficiert funds would be from yellowcake dr)mg and packaging Performance Standards. Subpart C. Uraruu.m. . available for comp!enon of the reclamation Radium. and Vana6um Ores Subcategory. op; rations. Dunng operations and prior to as codified on January 1.1983. plan if the work had to be performed by an closure, radianon doses frem radon independent centractor. The amount of sumty Cntena 8A--Dady inspections of tailings amissions from surface impoundments of or waste retention systems shall be liabdity should be adjusted to recognae any urannm er thanum byproduct matenals sha!! conducted by a qualified engmeer or scientist increases or decreases resultma from be kept as icw as is practicable- and documented. The appropnate NRC mUabon. Chan6es in engmeenng plans. Checks shall be made and lorged hourly of reg:enal cfnce as md:cated in Appendix D of acuvities performed. and any other all pararneters [e g. 6fferential pressures and to CR P6tt 20. or the Director. Office of c nditions affectmg costs. Regard'ess of scrubber water flow rates) which determme Inspecuan and Enforcement. U.S. Nuclear whether reclamation is phased through the th nfliciency of yellowcake stack emission Regulatory Commission. Washington. DC life of the operation or takes place at the end control equipment operanon. It shall be 20555. shall be immediately notified of any of opnauons. an appropnate portion of determmed whether or not coniuons are fadure in a tadings or waste retenuon system surety 11abtl.ty shall be retamed until final withm a range presenbed to ensure that the whi~ch results in a release of tailmgs or waste comphance with the reclamation plan is equipment is operates consistently near into unrestncted areas. and/or of any determined. This wdl yield a surety that ie at peik efficiency: correcuve action shall be least suffic:ent at all times to cover the costs unusual condinons (con 6tions not than when performance is outside of contemplated in the design of the retention of decommissionma and reclamation of the prasenbed ranges. Effluent control devices system} which if not corrected could indicate areas that are expected to be disturbed sh:11 be operative at all times during drying the potential or lead to failure of the system before the next license renewal The term of cnd packagmg operations and wheneser ut and result in a release of tailings or waste the surety mechanism must be open ended, is sxhaustmg from the yellowcake stack. mto unrestncted areas. unless at can be demonstrated that another Drying and packag:ng operanons sha:1 . arrangement would provide en equivalent termmate wnen controls are inoperstne. II. Financial Criterro level of assurance. This assurance could be When checks indicate the equ:pme it is not Cntenon 9--Financial surety arranger ents provided with a surety instrument which is operstmg within the range presenbed for shall be established by each mill operator wr.tten for a specified penod of time (e g.,5 peak eff.ciency. act: ens shall be taken to pnor to the commencement of operations to years) yet which must be automatically restore parameters to the presenbed range. assure that sufficient funds will be avadable renewed unless the surety notifies the Wh:n this cannot be done without shutdown to car y out the decontamination and beneficiary (the Commission or the Stata and repairs. drymg and packagmg operatons decommissionmg of the mill and site and for regulatory agency) and the pnncipal(the sk11 cease as soon as practicable. the reclamation of any tailmgs or waste licensee) some reasonable time (e.g. 90 days) Operanons may not be re. started after disposal areas. The amount of funds to be pnor to the renewal date of thettintention cessinon due to off-normal performance until ensured by such surety arrargements shall be not to renew. !n such a situation the surety

i 1 Federal Register / Vd. 49. Na 228 / M:nd:y. N:v mb:r 26. 1984 / Proposed Rules 46425 requirement still exists and the hcensee for the disposal of any such byproduct retammg ultimate custody of the site where would be required to submit an acceptable material or is essential to ensure the long tailmes, or wastes are stored to confirm the replacement surety within a bnelpened of term stabihty of such disposal site. shall be time to a!!ow at least so days for the integney of the stabihred taihngs or waste transferred to the United States or the State systems and to determme the need, if any, for regulatory agency to collect, in which such land is located. at the option of rnannten4 ace and/or monitonns. Results of Proof of forfeiture must not be necessary to such State. In view of the fact that physical the inspection shall be reported to the co!!ect the surety so that m the event that the isolation must be the pnmary means oflong. I bcensee could not provide an accepiable Commission wahm 80 days followmq each term control and Cosernment land inspection. The Commission may require replacement surety withm the required tirne. ownership is a desirable supplementary the surety shall be automatically collected more frequent site mspections if. on the ba sis measure. ownership of certain severable of a site specific evaluation such a need pnor to its emperation. The conditions subsurface mierests Ifor example. mmeral desenbed above would have to be clearly appears necessary due to the features of a nghtml may be determmed to be unnecessary particular taihngs or waste disposal system. stated on any surety metrument which is not to protect the pubhc health and safety and open-ended.and must be agreed to by all the environment. In any case. howeser, the Dated at Washmston. DC. this 20th day of parties. Fmancial surety arrangements appheant/ operator must demonstrate a November 1964. generally acceptable to the Commission dre-senous effort to obtain such subsurface For the Nuclear Regulatory Commission, tal Surety bonds; nghts. and must. m the event that certain (bl Cash deposits. Samuel l. ChA. rights cartnot be obtamed. provide (c) Certificates of deposit; Secretary of the Commission. notification m local pubhc land secords of the - Id) Deposits of gosemment secunties. %, face that the land is bems used for the tellrrevocable letters or imes of credit. and doposal of radioactise rnatenal and is If) Combmations of the above or such other subsect to either en NRC general or specific types of arrangements as may be apareved htense prohibitmg the disruption and by the Commission Howeser. self mourance. disturoance of the tadmss. In some rare or any arrangement which essenteally cases. such as may occur with deep bunal constitutes seif msurance le g.. a contract where no crisoms site survedlance wdi be with a state or Federal agency). will not required. surface land ownership transfer satisfy the surety requirement smce this requiremente may be waived. Forlicenses provides no additional assurance other than issued before November 8.1981. the that which already exists through license Commission may talie into account the status requirement s. of the ownership of such land. and mteresta Cntenon to--A mmimum charge of therem. and the abihty of a hcensee to

         $200011978 doll rs) to cover the costs of            transfer title and custody thereof to the long-term surveillance shall be paid by each         United States or a State.

mdi operator to the general treasury of the D If the Commission subsequent to title Umted States or to an apprepnate Staie agency pnor to the termination of a uranium transfer determmes that use of the surface or subsurface estates. or both. of the land or thonum mdl hcense.

            !! site survedlance or control requirements       transferred to the United States or to a State at a particular site are determined. on the           wdl not endanger the pubhc health. safety, basis of a site-specific evaluation. to be            welfare or environment the Cor1 mission may permit the use of the surface or significantly greater than those speedied m Cntenon u te p.. if fencmg is determmed to           sobsurface estates. or both. of such land m a manner consistent with the crevisions be necessary). sanance in fundmg                     provided m these entena. If the Commission requirements may be specif;ed by the                 permits such use of such land. it wdl provide Commission. In any case. the total charge to         the person who transferred such land with cover the tesis oflong term sur%edlance shall the nght of first refusal with respect to such be such that. with an assumed 1 percent             use of such land.

annuel realinterest rate. the collected funds F. Matenal and land transferred to the wdl yield mterest m an amount sufficient to United States or a State in accordane.e with coser the annual costs cf mte sursediance. this Cntenon shall be transferred without The total criarse wdl be a&usted annually pnor to actual payrrent to recosmze mflation. cost to the United States or a State other than admmistratn e and legal costs mcur ed m The inflation rate to be used is that mdicated carryms out such transfer, by the chan8e m the Consumer Pnce Inden published by the U S. Department of Labor, F. The provisions of this Part respacting transfer of title and custody to land and Bureau of Labor Statistics. . tadings and westes shall not apply m the W S.to and Byprintuct StatersolOs.nership case oflands held in trust by the United Cntenon 11- States for any Indian tnbe or landa owned by A. These entena relatmg to ownership of such Indian :nbe subiect to a restnction tohngs and their disposal sites become agamst ahenat;on eposed by the Urnted effective on Nosember 4.1981 and apply to States. In the case of such lands which are used for the disposal of bsproduct matenal. all hcenses termmated. issued. or renewed after that date. as defined m this Part. the hcensee shall enter m'o arrangements with the Commission B Any uranium or thonum mdhng heense or fathngs hcense shall contam such terms as may be oppropnete to assure the long. term survedlance of such lands by the United and conditions as the Commission Staies. determmes necessary to assure that pnor to termination of the hcense. the hcensee wdl IV Lont Term Site Survedlance comply with ownership requirements of this Cntenon 12-The final disposition of entenon for sites used for radmgs disposal. C. Title to the byproduct matenal hcensed radmss or wastes at mdhns sites should be such that ongoms active mamtenance is not under this Part and land. includmg any necessary to preserve isoletton. As a aterests therem tother than land owned by mmimum. annual site mapections shall be the United States or by a State) which is used conducted by the government agency Jl

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O 1 P APPENDIX B 4 9 1 4 I l l l l l l

APPENDIX B: COVRENTS

Docket No. Commenter Page: 1. Ecology / Alert 1; 2. Environmental Coalition en Nuclear Power 2; 3. Sierra Club 5; 4. Environmental Policy Institute 6 1 5. Environmental Defense Fund 7; 6. Attorney General State of Illinois 14; 7. Colorado Department of Health 16; 8. Marvin Lewis 17; 9. U.S. Department of the Interior 18 l 10. U.S. Environmental Protection Agency 19; 11. Texas Department of Health 21; 12. Utah Department of Health 22; 13. Washington Cepartment of Social and Health 23 Services; 14. New Mexico Environmental Improvement Division 25; 15. Environmental Defense Fund (see 5. also) 27; 16. Piedmont Environmental Council 34; 17. Western Nuclear, Inc. 35 I 18. Kerr-McGee Corporation; Kerr-McGee Chemical 46 Corporation and Quivira Mining Company; 19. American Mining Congress 66; 20. Environmental Policy Institute (see 4. also) 119 i; 21. Hctestake Mining Company 127 1; 22. Umetco Minerals Corporation 127; 23. Wyoming Department of Environrrental Quality 128 f 24. Access to Energy 131; 25. Dawn Mining Ccmpany 131; 26. Parsons, Behle L Latimer for Rio Algom 134 Corporation 1

uDM suwnt U/ umet autrum DlbV L(.!( V b wast 0 tutt mm m -- & ht.o Ph uns 37agy NMh N M 44d 2 2 E Neretny, Sec'y pec 2 Mtlihr 8 Re l'ropose d rul - Lill efe, when the borough of Ashlar.d pi ed Se c re ta ry e, t rea ted minewate r to i te residents, EHC Tailing $re y Lajt1 7Ik9 2 - ele que stion the loophole pe rmi t ted in 6*ri te ri on 6, Fe d Reg - how 26-04, pp g res the ATTs IOMTll G & SihVICE BRAhC11 nge ettes F !Mira;, "...(1) lie effective f[r 1000 46 41tg{C[fy{4gavgg . years to the extent rela 9nthlY_achltrable. end in any cee,- f o r e t l e ts t 200 vngt . Ge n tle me n = gi adler.t Roma,a could build aqueducts that are still in Before comeenttrg on the proposed regula tions, a few rema rk s operation af ter more than 1000 years, (for example at Se Spain) why can't 3 on the devious, saroque language used in the hRC's notice s. our 1: ode m Technology echieve at lee s a (TLe Jolicy Statemer.t in how 15 Fede ral hegiste r - re de v elo p- 2000-yee r ee fe ty atenderd? Res the rock sent of a pilot Integrated Safe ty Assesamer t Program - use a cove r of a closed site, mig)t 11 be femalble perticular beauty. And we'd love to see a photo of tte pixy who to enesse it with alabs of rock weighirg at lesat 5 tons each? draf ted tha t one!) - the Co meleelen asks if it should delete or modjiy prescriptive It seems fairly obvious this is a device to discourere public requirements for desigt features at:Sch na not, b ***

commert. meet EPA standards. ,

but ha s t t.e hRC conside red how much time, money ar.d pape r miabt .In view of the far reachirg coneqquences of a feilure at one be saved by its steff, and the peop le who must read and comply o f the se disposal at te s, we suggest that corner-cuttirg would with the re gu a t i on s, if the lar guage were simpli fie d? not be pnadent.

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6 amol e : Cri te rion 1 pre sently reeds," In selec ting as.or g al te r- , A few extra 88 at111or.a apent doing a thorough job could well natives tailings dipposal sites or judging the adequacy of e ziating save 88 billions in cleanup, and health and pronerte losses tallings attes, the following alte fe atu re s, al.ich will de te rmine in future years, tLe e s ten t to w r.i ch a prc,grar mee t s the broad objective of iso- ', latirg the taillr gs and associated contaminant s f rom man and the . Ve ry tmly, enviror. ment for 1000 yee rs, the reaf ter, without orEoing active , f sairtenance shall be conal de re d. . . " I Qirp li fied e xample s *1m > me t.s e t t e g a me s'5mm Site selection for disposal of talltogs shall incorporate the following features, . to teolate ta111rge and their contaminanta f rom man and the environment f o r 1000 ye a rs. while avoiding the need for ongoing active maintenance..." B501070323 041229 e POR PR

                     .                                                                               40 4WR464tB          PDH Our commente on the proposed nale s:

1 - I t's grati fying to learn the IPA he e ruled that all cuelj tie s of 6round water'shall be kept f ree of contar Anation. . An old .ipani sh(?) prove rb says, ' Don't muddy the wa te r. Some day, yo u may have to drink i t. *

                         %                                  'I te st odos o f this was borne o ut some 3 or 4 years ago, durteg adnowkdged try card.M0.U-%'

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suunaur0 kEl EfavirtOe4MEtel AL COAlsilON ON NUCL E AH POWtil N bM #b Y /h) ( y) g , g , g , g p, g g g g ,,,, gg,, ,,,,g,g g ,,,, 7,,4 g;, ,g e g , t , Ient Circuit proceeding under t%e consolidated Case .a. St.3225, c.o v. c a .n o ... r... a . r. mas rip s.a as m o, a = .. as a 4 s. c r. ...o aie m me Our specific coerents on *Jc's Proposed rule ag fe e5412 follow. C .*!? January 7.1904 1. W object to and oppose the ado; tion at t%Is tire of the proposei

                                                                 '.W .                                                                  revisions to 10 CTR 43. Alpendis A.              I4e proposed danges are ;remat re Secretary of the Co.enission                                                                                              uhtle the (PA standards remain under revlea 'sy the feath Circuit. i*C had Se: 41 flt 851l3. avember 2*. l184                                 s aspenjed the e f fectiveness of its een st;ndards lesserarily pendlag t%e (f.5. Cuclear
             *:ashington,    D.Csegulatory "M55           Cornisslog5 .m )0 g.g         , ,,,g ,,g ,     , , ,,,,,,, g                          mpi,tl,n o f (nr..s rui,oattag in ord,, to Sene fit the dadust,y. t%e saae nascalng appHes             en. the 23Nctlw of W Hrst suspension nas to avoid atta: Cocketing and Service tranch                            Conforslag is't *tequirements to                             a situation uhere a licensee or applicant :Ight case a major coms Itseat or poom 1821                      (f'83 i' S HIPA Standards. Propose 1 sole, uCCn P n; i m g:                                                                tale a 7Jor action a%1th nould be unnecessar/ or Ill. advised after sub.

1400 iev.est action htch may rejlfy the [*A final $tandards. Action by t'.c *:RC Ce nt Sir or **adame: on ticse Greviously sus; ended regulatloas should slollarly be #elajed until these consents are being filed on behal f of t%e Cit taen f.roup Intervennrs the ;aurt Ses reached its Jetermination as the valldity of the (PA Standarh. ("Intervenors*) la the *!uclear Regulatory Coevalssion's (*PRC* or "Coralssion*) Consolidated Padon Proceeding (NRC 00th et *;os. 50-277. 273. 320. 354. 355) 2. fu Comission. In setting regulations to vern the destga,can. stru@n anJ operation of mill talHags staMllget on and control must aaJ the related Ihree *Ille Island. L'ntt 2 ("Till.2") *stC Cperattag License

                                                                                                                                        ;'h' '8 ' ' ' ' I' I'"' '*" ' ' ' ' '" I I'     I  ' I ' * ' '*" Ias sad r e gu l a t t o s s I

proceedsa) (nac *: octet *:o. J'3), and for tree undersigned pro se Petitioners 'a 2nsure t at (PCs standards for protection of t%e public frors radialogical In consolidated prweedings Se fore the linited States tourGf' Appeals for er :svres will be ret in actual practice. *iPC's des ign reval rerents . In the Tenth Circuit (Case '4. 25.lt82 consolidated alth anJ under Case 30 83-2226 e r ti acMm se a%uate cargin of conservatism, ullt of accessity t,e Aaerican Plaing Congress v. Audelshaus), in uhtch we and other parties are ' '# .tring*nt and restrictive than (PA's stantard, particularly la vleu dallen; lag the ade1uacy and legality of t%e invirce.sental Protection Agency's Sf *C s tartler tc*sidered judgeent that its regulations were set to provide l~f PA*) Final Standards for Active Uraal.sm and I%orium Nll f allings (*CPA standards"). 43 Cia Part M2 C and (; 46 TF. 45326. Cctober 7.1983. for W R srutecdon. The original T.12 1 :EC license proceedings and tSe !!RC consolidated

3. *l*C is an ladependent regulator / acency. directly (Sarsed by the radon proceedings , in *acth o f whist 6 we participated actively, aJJressed the . Or. W s c 5 W Ste c N Q kt O f M t. ts arendef. W Cr.erp Scorganlaa.

quantity anJ health ef fects o f radon emissloas f roa uranium mines and mill YN.",,e}ct o f Ull, and th *JranM ],11 Isilings Keredial Action *.ct of 137* 45 annde1. to protect ..ie :'dalth ali sa fety o' t%e putitc. ahe tallings piles attributstle to the consercial nucleJr fuel cycle. The 'iRC t * .. is mot hocnJ ty (*t ar [?/.'s Gal"&slu acticas. *:PC is charged 4y ""f?!t l Casalssioners , on *4f 27. U23. la Pescoroadum acJ Crde r Ctl.33-It . Cecided l' to avait flaal action on these radon issues until (Pt issued its general an. .wsr MsWlit/ M uR lts discutka t1 ansare that t%e p Slic as

                                                                                                                                                   ,' en faH / W ettad.                   . se '44tional invirmatal ?alic, *ct stanJards *er active uranlos and thorium r.lll taillags .. tP.e (FA stanJards                                              ;g*
                                                                                                                                         *  s[U !            I* la addition to these statutes, r ct%errore      e            ,*te a;2acy now under challenge and review in the Ienth Circuit.                                                                       cost cantiler protection for t'te full hasartcus life of t'.e contawmated The :.RC Proposed aule nere addresse j la response to 59 T2 46412 nould                                               llt taille;s in question.

revise tr.e 3*.C regulations alth respect to raill taillac,s.13 CIR 83. Wendi s .t. D.*. Is strillarly required to fulf!!! Its statutary res::nsibilities.

la response to (PA's prura.lgation o f its standards an Octote r 7.17;'3. !!s f a* *are is this regard. .htc's .se and t'? t se runrental re fe,se f and save 4C IR 35325. Jacwer.tef la the att ached feath Cirealt Srle fs .15 no j.sti f 6c at!ca .%Jts:ever for t'e ! proposal . .hich represeats a fall .rt by tTe 's .-lasion ta carrf t*e lacorporate by reference as part o f t%ese racents the full records of out its respcasibilities. !a*eed, whare ;olf t*:21 ;r steras ar atssete :?

the 300 TPI.2 Operating Licease anJ CcasolidateJ *s.'oe prueedle.gs , and the *Iteent to its prinarf obligation to t%e Wal?c a*flict; *.*t. the barfan of follo.ing dicuments: * - m.

                                                                                                             ,        3.                 responsible regulatory action falls the sare Se tst?/ upon 1*C.

(a) Cosa.ents of the f aviron cntal Caalltion on *:uclear *o-er ('CCNP']g la E PA Codet ".o. A.82-26. dated June 22/3. 1303; 4. faRC is capable of and cust uniartale ,a f.ll Ir.feoendent assesstelt of ISe regulatory regulietents to carry sut t-e iso atica of urailte aid (S) Cossents of Solar tobby in CPA Codet *.*o. A.82-25. tated June 3".17t34 tsarium mill tallings. Cengress $45 rc :3 /il:?' t%st it is *.'eC. rather than W* Mch has the mitirate nspeasfalH ty for sHtin) ksU,1 standaris and (c) *An Analysis o f Control StanJards for t'e long. Term Cantainrent of 'e;ulations that ulli w3rt. In t%e CoasollJated Paden proceec*ag, far esarele.

 -                         Urantum 14tilr.gs* bf "J. Sahe Junge. Colorado Ceological Survey, anP'>                                      itC Staf f and incastry witnesses of fered assutaaces tSat sta'alli:stica and L awrence E. Cercan. Cotoraes Olves ton of ! ater pesoerces , dated g       g g*                                                                                g                 contr1 te(hnlques would he ate 1eate to prevent radon ar tssl3ns in escess of 2pcl/o}s for a time period of thousands of jears, the judpent of 1RC was that (d) Prepared Testeronf of Dr. Chauncey repford on tehal f of t%e later.                                            t%e relevant tire period fcr tallings control far esteeds ite saltr/ 290 years, venors. Perkins 1. 2. and 34                                                                                  cr tSe 1000 years, naa adocted by (PA as E rs period of c:nc3... 1 C is not (e) 3rle f o f Cr. C%4 nref Repford saJ Dr JuJith 18. Johns rud, retltion'ers.                                     (2 ;uired ts *aack do'an and ins tead sSould !qcre ase cartedif tre perla 1 of control "cr ehich its design criteria and regulattoms are a;211 cable. 1.a C hrng se
                                 , g, ,ing0.5.

gg;Court

                                                  ,,4 o f Appeals. Tenth (lrcult, f o. et.laf2. dated -                                  has the autScre t/ to look upon (FA s flaal Standarf as .erely a tasellne Giol84o33a usolo,                                                       JMi11 W
                     $ 4 % m ie               m                    """*'+8 br confl..~;.;;;. ;;;a, 3

beyond whic% 'IRC sets its own sure restrictive reiulresents. In!3(A "8-Sectlans 20% and E6 descrit.e (PA's standards as

general s tandards* Sut corparison with the
return period." the "enceadance probabilities
discussed spec i f y that the fossalssion 54all ensure the r'anagerent o f Ssproelutt at pae,es I.) of their analysts seveal the absolute necessity of sesigning materlal is carried out to as t$ protect t*e putilt %ealt% anJ safet/ for c:vch longer periods of ti t ta avoid disposal failure even during t%e and tSe environrtat. brie f perlod of 200-1900 years that (PA's standards sould apply. '89C must the preposal of the 1RC suggests t%at the Carrission believes it require design and proper construction to endure for a pertoj if at least enast incorporate the errvrs of UA's rulershing. To t%e centrary. me 20.000 to 130.000 years in ordar to of fer anf asturance L441 (PA's herebf petition LSe faRC to esercise its ladependent judssent and preciulgate standards will be set. Furt%errose !iRC nust consider requiring rare regulations t%at fully protect the public for (Se duration o f tStse was_tn. pereanent solutions to ensure isolatles of these wastes for t%eir full Ihe (omission could adopt buch re julations , for erampIe. under (*'IPC A period of toalcity. af ter evaluatina) such opticas in depth in an environ.

Section 206 (f) (4). rental lapact statera at. if ese ase sust crucial issues fenanding far ts tre Scope.C ontent, and Proposed *bdi fications and Rationale **" "'Irictive standards than 'sRC Sas proposed, 5 sections of 41 !? 4511* indicate. *l1C is untertating a separate rulemaking .le support t% deletion o f the word "asable." ist regardless of to address the cenststency o f 10 Cf 2 40. Appendle 4, with the Soli 4 "aste current groune.ater quality, contaminants must he Isolated from growne'.ater ('isposal 3ct. The discussion of the propcsed ro/ifications makes clear at all sites .here tSere are mill tallings , no matter how remote or t%at P

ls e%% ding bf the fongressional Intent far the protection of unpopulated such sites ear Se.

    ;roundsatar (Criteria 1. 3, 5, and C) -- at least b.v of fering lip service                                 c. Criterion 3: l'e support flRC's adoption of this change as . ell, to a ns.Jegradation standard. Surely the atsusphere. LSe air we breathe.                                     d. Criterlon 4: ,Se substituttom of " Probable Hasicum flood (*P1F*)

is equally deserving of such prutection. Tet the adoption bj tt't( of (PA's . arosstj eakened standeres ,ould be tantamount to virtually eliminating for ,eastmum oossible flood

may reflect an
appropriate %ydrigeological anf real regulation of rat lon. for further discussion of this point. see tem. but it does not re flect the appropriate conceptual basis for the also tS: attacSed (C1p and Solar Lothy coewents on the (P A proposed final long ters control of urantum and thorium allt tallings. flood recor<ls are 3* obviousl/ dholly inadoquete for predicting the raslaua flood which say be ea;ertenced during the relevant perind Jf stabill'stion eid ccatrol, even

5. Our coerents on t%e nu*ered settlens o f the **roposed l'edi fica- for IPA's lasaf ficient 2.101%3 years, :fasing tanal,:ncet directly t%e Lions and Fationale.* f B 40419. follow: %lghly laprobaile llurricane Agnes floodlag in t%e Susquehanna River 34 sin, a latrW uction: 1.(b) Oolag assay alth a now.%1storical due date .e erghaslat that this substitution provides no conservatism and Criminally see,s retsanable, but not ecluiting actallc 2 information on prograss for taillags disposal fallum. %st is t*:e Sasts for the stateeent tI""!I'5.F sas the " original latent o f 144 ;rowl2 an* f8 steting the technical and financial criteria as ap; ears to be the con, ..

                                                                                                                                                                         !%Is chante should sewence o f tils acletion is unelse. De following change.1.!c). 94y                                  no. 4 cat and ins taa1 a contarvatism to accc.nt 'er possible flooding D'/ont the f.rchable 2aste.,a flo3J should be af fa f,
    'aase sava arrets en added flestbilit/. but provides for a case-Sy. case ap;roaci ta licensing that . sill encoura;e acceptance Sy %e Corwission                                     e. Criterion 5: 1.l:SouS4 the polici r::ficctai in the deletion of of w14tever an applicant of fers - ; articular 1; in the absence of rigo.nus                          the t.,4 sentences as pro;osed sede.s desirable, la soee situattor.s it could, participation la adjudicative proceella;5 by adversarial parties. 7.*C h.s                           *S/ tirecl ading *eep burial of tallings, lacrease De net 'emage to Surcan

s. ate s.bstantially s. ore Jl f ficult ef fectied cltleen participation la its eesi th from cw-Simed airborne and graund.ater pat'r.se/s. In ad$ltfen. So.4 license proce2 dings. Ite Camission Nas cove 1 fror t'.e *unt wenest* af does 'rA or SFC. or anyone else. espect t3 *etect see;ar.e if tiere is t2

 . eac: reactor *3 a generic appruath to seactor design in recent fe a rs . Mere.                      Se no rcntterlag? ,** Sat sessures ellt Se relvir2d *.S pre *.ent lea $er*ent t4e RC seets to lavlte non-unifarusty. It is at least careen f able that                             er accidental leaksi ttow does 7tC propose to assess an applicant's

PC 15 recosnialag such variasles as

local or regional :enditions yolog/. assurances of absolute contalacent f ilhat is the standar: for pr:of and topograph/.* e tc. Taken alth tSe relanation of centrul aver sasite areas wte Sears the burden of proving per fect leper:4:Sility?

not subject to the clcsure requircaents for longeve tf 4.id raden re le ase The change at Criterlen 5 (b) is su;;crta)le telt% tSe sare *.inds contral, however, theri entsts great potential for licensing abuse. o f reservations. The addition of some eoJllying tern, such as *leaQroof

alght clarify the latent and give the 'IPC and ot%er af fe:ted parties b Criterlan 1: The delet 6en a f
thousands o f fears
is an language useful in the Ilcansing and enforcerent fo r urs ,

unconscionable act of irres;onsibilit/ by t%ls agencf. 1RC has already bcem gulity of an appalling atterpt to ceny the leisevity o f the reden Change (c) under Criterien 5 is accepta' ale. Sut leaves ope 9 ISe problem in 10 CTR 55.20(e). !able 5-1. *5ussary of the Inviroarental Ef fects question of what is seant by restoration of ,rounteater. 75at re ssurereits o f the tiranium fuel Cycle.* The erroneous figure af 11.5 curies for radon-222 and records of prior qualltf allt be taken to te uset as a s tandard? If was recoved free that table in IM8 la consequence of the testlecaj of deudation has alnad/ occurnt hf3n closun, is a licenser nyalred Cr. repford in the l'Il-2 proceeding the record of w%lch is incorporated $y to restore to drinkf ag water s'anfardt re ference in these coeveents, in the T*tl.2 and Consolidated 2adon Searings Changes (d) and (e) to Criterlon 5 are consenda%1e. Industry that

allowed. the Cossatssion's own staf f esperts agreed on t*.e need to pntestaticas must Se disugaM.

mini =lse radon emissions virtually forever but were able anly to af fer E 8 3 * $ vague unsupported p '((r o

thousands of years.,esmises
low the that

                                           *lFC the has 15en  proposed proposed           cover would a full retreat            e13ure for from the                                                                                               g esercise of its regulatory obit;attens.                                                              of faten pmatun dcaths d hn gngs. % atuspedin glanu of the attached statesent of Junge and Cassen estabitshes the total                         203 fears shows Sow ludicrous is !PA's tarporal s*4adard / tic 4 limits inacequacy of the (PA, and the proposed .7RC. *tontainsent Il fe ** Sy                                     "I' ' "             * ** **                     ""      "'I  ** N peoole among us, a tire pertsd in ahich only ten generations .618 be 3-

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only if they result in a levet of peesectaon equivalent to that echtowed by the st anderde of the Coosa!as ton p.or ement to the final standerde of the EPA. This languego does not, in our view, contemplate the provisaan CLUB (V ** *% ner. .. u. se u..p( .wmi . o:. .at e sse of ver tences, by the Com=leston, fu the tra etend rde th selves, porticularly as such standesde, including the g.oundwater protection se,utrement. anc. .. fro. t,. tid ..... .Le p.., .. . .re .. opt.. 651D Edll g1 g P*'***** ** 'Postfie Congseestonet disective eteewhere in UtfrmCA. Janvasy to, 194S

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( 4 : ' is .. aiso conte ,ietes C - teeio. i.,i entation se this wei,er

                                                                                                                                                                     .uaocity wt a out any re ,uire.ent for ao co.curre- e of me Admintatrator, in direct vietetton of the Agency's final standarda and u.5. Nuclear pegulatory cometeeton
                                                                                                                                                                     ' ******* ""Ponetht u tt u uder UMTSCA and the SWun . Aptm thte Washington          D.C.,    20S5S                                                 '85 JM 10 P4:42                Propoest seema Steelt et vertence with the constetent intention of Attne Docheting and Service Branch Congrees in thte matter.

1717 N St. ens , moom 112g Mf! 00 3 .. ,:e. t gga t /.,as. y .- sincerely, pee to Crm part 44, usannssa ntil Telling mogulationes Confesitag unc % seguisemente to tra stenJards, 49 red. peg. 228, 11/26/84, pp. 4641e ,b,erh it l J m T. uinge .eguiettoo., Croundw.T.r broteiao. en.

                                                    ,f., and o, ant.o.

Other leewee, 49 ted. Seg. 228, 61/26/94, pp. 44425 f f. / Brooke B. T**ger q Weekington popresentattee i To Whom it rial concern. Encleoed please find the counnente of the slette Club concerning the above-captioned Fedesen Register mottce. . P.L. 9b415. The Nuclear Regulatory (basateeton authortsetton Act for flancel years 1982 and 19e 3, eequiree the Comet eeton to conferm S t e segutettoes for active urs % u lting ettee with the general atendarde Resued by the Env&me mentet Psotection Agency en or before Oct. 1, 1941. . The unc conforming casages wese to be final, under the schedale dictated . 1y the Act, within 6 months of Er&*e promulgetton. Clearly, the proposed changes listed in the Federen segleter, combined with the AMPR of the ease date, fell to meet the requirements laid down by CV.grees for NRC conformance. Instead of propostag and promulgeting coef orming changee within the statutosy time period, the Coseateeton has, almaat 10 monthe late, proposed a restricted set of conforming changes, while leavtag the more im pstant queetton of compliance with EFa's w groundwat er requirement s to a futur e rutomaking which may take up to fouz years to complete. The Starte Club belteves this propused procedure to be Elleget and unwise, es well se taeufficient f or the puz poses of the Urantime Mill T 11tage Radletion Control Act SUrrTRCA), as seended by P.L. 97-415. As went se conteepleting am ladefinite delay not eastetened, and in fact

     .                                               empressly sejected, by the Congreestenal conf erees, the Cumanission's apra metatains that the r - testom has authertty to e!!aw the waiver of any or ett enetrommental standards innder Section 044c) of the Atomic Ene s gy Ac t.        We believe this to be a eletnterpretation of the intent of Congrese in amendtag UrrTDCA. The Conference Repurt on p.L. 91 4 t S                                3.

sept. 97-est, clearly grants the Comsmiselon the authority, upon applicatton by a Itcensee, to allow vertences to ate own specifte no= ledd et by cat Q d - . .n . . . ,.ae

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ym e g _? . E N V I R O N Alct3 N T-A L POLICY INS 1ITUTE W /T 4(A/8f

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ol 3 Commission now argues must be the sub}ect of protracted G 4 g _.._- T d- - - ~ M rulemaking. As the Commission states, this could " require 14 h guur :e L;- - t ..- * - -

                                           -~N          J anuary 10, 1985 ,
                                                                                      . k.

x 7G several years"(49 rp 46421). In the Matter ofs N hM Second, the Commission proposes to enesciae authority'under Sec. 04(c) of the Atomic Energy Act as amended by F.L. 97-415 in 10 CFR Part 40 *c5 JG 10 Pl:12 ~j the interim during the conformance process to regulate uranium Urtnium Mill Tailings Regulations: L p mill tallings. As explained by the Commission (49 FR 46421), the Conf roming NRC Requirements to EPA - Sec. 84(c) authority would allows it to esercise regulatory Standards Proposed Rule lh. - ; " ( .t Y

                                                                                                          ' flexibility

during the interim period without EPA concurrence.

Dy imp!! cation, this authority would also ealst after PRELIMINARY COMMENTS Or TttE ENVIRONMENTAb POLICY INSTITUTE conformance. latroddCLlDD The Commission essentially argues that Sec. 84(c) constitutes a " stand alone* authority which it may exercise In response to the com m i s s i on's publication of proposed irrespective of any other requirements of law. Specifically, the r ule s(4 9 FR 46 418, Novembe r 26, 19841 to bring its uranium mill Commission interprets Sec. 84(c) in such a manner as to preclude tellings regulations into conformance with those pro-;1 gated by the concur r ence of the EPA under Sec. 8 4(a)(3) or under Sec. 27 5. ths Environmental Protectiun Agency in October, 1983, the Environmental Policy Institute (the Institute) filed a request for As provided by Congress in P.L. 97-415, Sec. 84(c) is a an extension of the comment period. The request was received by conf ers "an opportunity to propose approaches to mill tailings the Commission on January 7, 1985. In anticipation of f ormal containment and stab 111:ation suited to regional or site specific estension of the comment period by the Commission the Institute , condistions which may vary from engineering and technical cekes the f ollowing preliminary comments. specifications recommended by the Commission.*(tl. Rpt. 97-884, September 28, 1982). It is not a new grant of authority f or the ZieliminaEs Comenta Commission to alter its health and safety or. environmental The proposed rule raises two critical questions concerning the e n M remen m a r a en scenent M Ge EPA standards. h the extent tut t i. e specific Commission Co m m i s s i on's interpretation of the Uranium Mill Tallings requirements to which licensees propose alternatives concern Ridiation Control Act and the P.L. 91-415(rY'82-83 HNC Author t ra- ma is a 5 e 5 sa ct, matssion tien Act) amendments to that Act. is doubly bound by EPA s regulations promulgated under Sec. First, the Commission is in violation of Sec.18(a) of 84(a)(2) and 84(a)(3) to gain EPA concur rence bef ore esercising P.L. t flexibility to set license conditions granted under Sec. 97-415 r equir ing HkC to conf or m it s 1980 uranium mill tallings

regulations to the final EPA mill tallings regulations (40 CFR 192) within six months of their pramulgation by EPA.

The Commission's interpretation of Sec. 84(c) in both the proposed rule and the advanced-notice-of-proposed-rulemaking, we c n ormance within six no t a but also c ntains a detail believe, is aimed at creatirig a statutory loop-hole by which HRC procedure of interim suspension and "conformance* w it h EPA's can avoid the EPA's requirement in 40 CFR Part 192 for EPA proposed regulations. In establishing the multiple-step review, suspension, and conf or mance schedule contained in Sec. 18 ( a) , . concurrence in the issuance of alternative concentration levels. We do not believe that such a loophole exists in statute nor did Congress clearly intended for final HRC conformance to take place l in the jaost e x ped ie nt and efficient manner. The proposal and the Congress contemplate Sec. 04(c) creating such authority. accompanying advance-notice-of-proposed rule mak ing(4 9 FR 46425, CDDClun10D Have mbe r 2 6, 19 8 4) do not compor t with this intent and imply a . lengthy conformance process clearly inconsistent with It is unfortunate that the Commission is more preoccupied Cengressional intent. with *tur f

conflicts with the Environment al Protection Agency As stated by the Commission in its rulemaking suspending its and the degree to which it must gain that Agency's concur rence in regulations inconsistent with EPA's proposed r ule(4 8 FR 35350, , regulating uranium mill tailings than in the timely promulgation August 4, 1983), Congress required NRC to begin examination of of final mill tallings regulations as r equired by P.L. 97-415.

Its 1980 rules and their conformance with EPA regulations within The proposed rule appears to flaunt clear Congressional 90 days of the proposal of EPA's regulations ( April 29,19 8 3). In directives to expeditiously implement a Federal regulatory point of fact, NRC has had some 17 months since EPA first program to protect the public health, safety and the envaronment propused its regulations to anticipate the conformance the f rom the radiological and non-radiological hazards of uranium mill tallings. Ackno.6eRed by c4rd...IMjQ&

                             ,,, , u.._    r e .. _, , , c ,.. . ,4 o .m.w .,              8          ,

k't s t t: , ' ' . J$v\L (49 a .4we) h ENVIRONMENTAL DEFENSE FOND

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Jg7 _ .'J The Institute reserves its right to make more estensive ggg KW <r- ~ "- comments in this matter upon formal estenston of the public g ~~

                                                                                                                                                                                                                    ,         fg gg . ,                                                                       a ccament period, 0s       i                -_         } ] ~ January 9, $,e                        54 . $      ,n            N
                                                              <*e4 ectfully submitted, k ITI M -                                                                             5                     3 Secretaryt nau we ._

3

                                                                                                                                                                                                                    *             'g U.S. 04uclear Regulatory 'Comalistori"

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Washington, D.C. 20555 c

                                                                                                                                                                                                                      'u                          r-David Berick, Director                         Attns Docketing and Service Branch Nuclear Waste and Safety Project Environmental Policy Institute                                              Res Proposed Rule to Conf orm Uranium Hill Tallings Regulations to Standards Adopted by Environmental Protection Agency 149 Ped. Reg. 46418)

Dear Sir or Madam On October 1, 198 3, the Environmental Protection Agency (EPA) published its final standards for stabilisation and control

                                                                                                   ,             of byproduct materials at Ilconsed commercial uranium and thorium I              processing sites, pursuant to section 206 of the Granium Hill Tailings Radiation Control Act of 1978, 4 2 U.S.C. section 2022.

4 8 Ped. Reg. 4 5 9 26-45 9 4 7 (Oct. 7,19 8 3) (to be codified a t 4 0 . C.P.R. Part 192). EP A's standards became effective on December 6, 1983. As required by section 275 of the Atomic Energy Act. 42 U.S.C. section 20228f)(3), the Nuclear Regulatory Commission recently published a proposed rule to conform certain of its uranium mill tailings reg.'.ations to the standards adopted by EPA, while simultaneously requesting public comment on the Commieston's I . tentative process for conforming its regulations to EPA's standards for groundwater protection. 49 Fed. seg. 46418 (proposed rule), 46425 (advance notice of proposed rulemaking h (Nov. 26, 1984). s eas a,.,.= a ad=*- (* a. seios Tianae. . . omcrs ut nrw voet ser enmi a a eh=ag an= a *Nm tr. eransur. cA macuneorem va sotanta co 4chne. ased by cent..w. . JAN f 141985of -

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EPA standards. That interpretataan does not comport wath enthes The Envi ronmenta l De f ense rund's comment s. concerna ng the Commassion the language of the statute or its legastative history. propused rule to comform its preexisting regulat&ons to the EPA * "I*# " I" "'E I"9 I"9 # * " * * #' * "9 ** *"* standards, ase set out below. ' is "the language of the statute itself." United States Lines, Inc n Bladrige. 6 7 9 F.2d 9 4 0, 9 4 4 ( D.C. Ci r. 19 8 21. In Ltas g, co w ssion AUTuonITY TO CRANT VASIANCES instance, a careful parsing of the statute shows that Congress 70 EPA STANDA W did not grant to the Commission the authorsty to authotize departures The rulemaking notico states that the Commission proposes to g,,, gpA,a standards. Section 44(c) of the Atomic Energy Act, add a new pasagrarh to the introduction to its existing regulations. u[en which the Commission telles, provides that The purpose of the new paragraph is to make clear that that a 16 ahmdh g eM fic uwlaum s licensees and license applicants may propose alternatives for adopted and enf orced by the Commission under this Ac t .... The Commission may treat Wch7ternata'ves as satisfyam meeting the Commisason's uranium mill requirements. The language Commise son guirement s if the Commission determanes that such alternatives wilf achieve a level of stabilization and of the paragraph to be added paraphrases the terms of section containment of the sites concerned, and a level of protection for public health, saf ety, and the environment from radio-8 4(c) of the Atomic Energy Act of 1954, 42 U.S.C. s ection logical and nonradiological hasards associated with such sites, which is equivalent to, to the estent practicable, or 2114(cl. That provision of the Act does in fact permit uranium more stringent than the level which would be achieved by standards and requirements adopted and enforced by the mill licensees to prosese to the commission alternative means for Commission for the same purgese and any final standards promulgated by lthe EPA).... achieving the Commisston's specific engineering and design requir-42 U.S.C. section 2114(cf temphasis added). ements for protection of human health and the environment from That language could not be clearer. It provides that a the harandous substances associsted with uranium milling wastes. licensee may propose alternatives to Commission requisements. The statute specifically contemplates that such proposals for e And it provides that the Commission may treat such alternatives alternatives would take into account local or regional conditions i as satisfying its specific requirements if it finds that the that affect a uranium mill or mi!! tallings disposal site. I to eff h WWg Wk Whh However, the Commission's esplanatino for this change seems 3 as the Commission requirements and the EPA standards. The Act to go 'much f arther than the statute germit s. The reJeral Register i l simply does not say that the licensee may propose alternatives to notice strongly implies that the Commission interprets section { the EPA standards, and the Act can not be construed to permit the 84(c) to permit it to adopt alternatives not only to its own

Commission to consider such alternatives.

- specific requirements f or uranium mills, but also grants the I That conclusion is consistent with the historical scheme f or Commission authority to consider alternatives to the underlying the regulation of uranium milling, with other provisions of the 2 1 1

                                                          .                                                                                          e

2114 ( a l, retnforces thts interpretation. Section 84(al mandates Atomac Energy Act, and wath the selevant legislattve htstory. In gg enacting the Urantum Hill Tailings Radiation Control Act, Congress in such manner as til the Commission deems appropriate for protection caref ully delineated between the . roles EPA and the Comm4ssion were to play, an keepang with those agencies' nistorte regulatory generally applicable standards adopted by EPAs an,d, { 39 conf pres responsibilities. The Act mandated EPA to promulgate generally g g applicable standards for protection of human health and the gg,, , , , ,,, ,g 3 , environment ftom radiologia! and nonradiological hazards asacciated applicable to similar hazardous materials regr

sted under the with uranaum mall tailings. Ss tion 275 of the Atomic Energy g g g Act, 4 2 U.S.C. section 20 2 2(b), as added g section 206 of the There is no hint in the statute that Congress intended to grant Uranium M111 Tallings Radiation Control Act. However, NRC was to retain its role as the regulatory, or !! censing agency:

set by EPA. Indeed, Congresa espressly required EPA concurrence The NRC is also responsible for implementing general in setting requirements for protection of groundwater from materials standards and criterna promuigsted by the (EPA). NRC must assure that the technology, engineering methods, operational that might leach from mill tailings ponds to subsurf ace strata controls, surveillance requirements and institutional arrangements employed at the site provide the necessary and to underlying aquifers. levels of control to limit public esposure, and protect the The statutory language is clear in this lnetance. Congress

environment, ... as specified by the EPA standards and criteria. espected EPA to promulgate generally applicable standards for u.a. Rep.14 0 0 (Part II, 95th Cong., 2d Sess. at 16 (19781. j protection of human health f rom the hazardous substances associated Thus, the statute and its legislative history demonstrate g that Congress ' intended the Commission to develop the engineering I and site-specific requirements necessary to implement the EPA standards. Section 84c of the Atomic Energy Act reflects a measure of flexibility at that level of specificity. Congress congressional recognition that dif f erences in geology or hydrology may warrant flesibility in the Commission's detailed require-variances from the EPA standards that form the basis for ments. But neither section 275 nor section 84 of the Atomic regulation and licensing of uranium mills and waste disposal Energy Act permits a construction under which the Commission may authorize a departure f rom EPA *a generally applicable standards. Section 84(a) of the Atomic Energy Act, 4 2 U.S.C. section I 4 5 3- -

conducted field tests on uranium ma ll tat langs piles an Grand 31* CntTEntou 6 orstcN or FART"ru covtas g R ApoN ATTfNUATlat. Junction, Colorado. The results of this comprehensive research A. petention of a 2 pg Standard Is Practicable and Consistent are compelling. J. Ilartley, ej a l., 1981 padon Barrier Pseld wit h t -he At.A14A Pr inc t3Ie Teg at Grand Junct ion Uranium Hill Tallings Pale (April 1981). The Commission's exasting mill ta11&ngs regulations require First, the field tests demonstrated that all three cover emplacement of an earthen cover over a final disposal area that systems are ef f ective in reducing radon releases to negt will result in a calculated reduction in surface enhalation of background levels. Specifically, these researchers found tht an radon emanating f rom the tailings to less than 2 pC1/ml /sec. The adobe-mancos shale system achieved an average 99.6 per cent Commission selected that standard because it will assure exhalation rates within the range of those occuring naturally f rom most soils, and because it is consistent with a key principle of the International Commass"6on on Radiation Protection--keeping individual y exposures as low as reasonably achievable. 1 Final Generic Environmental Impact st at ement on, Uranium Hillinq at 12-12 (ILS. different cover technologies. They found that the adobe-shale NBC) (Sept. 1980)thereinaf ter cited as CEla). The ALARA principle and asphalt emulsion systems were two of the most cost-effective is a key part of the Commission's regulatory scheme as well. 35 of all of the covers tested. red. R e g. 18 3 8 5 ( De c. 1, 19 7 0.1 This report is the most comprehensive and thorough study of Conversely, EPA's standard, which the Commission proposes to .

                                                                                                                        ,      cover design and cover ef(ectiveness that the Environmental adopt, sets a maximum redon exhalation rate of 20 pC1/m 27,,c, which is ten times the emanting requirement and more than twenty Defense Fund is aware of.      It demonstrates that it is technically y

tames the average exhalation rate f rom natural soils. & at 12-costs of installing such a technology are reasonable. In short,

11. Before the Commission adopts the EPA standard, it should the technology exists to reduce redon enhalation fraa tailings caref ully consider the feasiba!!ty of retaining its current standard 2

piles to or below 2 pC1/m /sec, consistent with the ALARA of 2 pC1. In a recently published study psepared for the Depart-1 principle, ment of Energy, several res'eas cher's 1 Avestig'at' e a range of The Commission clearly has the authority to set licensing tectanologies for attenuating radon exhalations earthen cover requirements more stringent than the standards adopted by EPA if systems: multilayer cover systenss and asphalt emulsion radon the Commission deems such standards appropriate to protect public barrier systems. As part of their work, these scientists also 6

                                                                                                                          -/O-

health and saf ety and the enet ronment from the radiological [t ln practace, design techniques must take account of hazards associated wath management of urantum mall tailings. 42 uncertaantles in the measured values of the spectfac materials used, the tailings to be covered, and predicted j u S.C. section 2114(1). As as described above, a secentlY long-term values of equi!!braum motsture content f or the specific location, in order to assure meeting any given The uncertainty in published report provides compelling evidence that it as redon emission limit over the long-term. predicting reduction in radon fium increases rapidly as the s easible to design covers to achieve an eahalation rate of 2 requiredragonemissionlimit approaches background. Even at 20 pCA/m a the uncertainty may approach a f actor of pC1/m 2

                                                                    /sec. That seport also demonstrates that the costs of such                          three.

designs are reasonable. At the same time, retention of the 2 pC1 ta 0-11 (citations omitted). In his oral testimony before standard would provide clear benefits for protection of the EPA on this subject, Dr. Vern Rogers stated that moisture content public f rom health ef f ects linked to redon esposure. Under these is a critical component in characterialog the effectiveness of a circumstances, the ALARA principle requires that the Commission particular cover material to attenuate radon eahalation. Dr. retain the 2 pCi standard. Rogers added that under our present level of understanding, the dif f usion coef ficient can to characterised within a f actor of two. R. The Commission Should Require Licensees to Take PrinEpaTIIUiables e cover Performance TntIAccount powever, other f actors, such as the degree of compaction and EPA concedes that there is uncertainty in estimating radon porosity of the system, as well as physical parameters such as diffusion coefficients and that the margin of error at 20 distribution of particle size, will influence the redon dif fusion pCi/m2 /sec is as high as a factor of three. Moreover, a number coefficient. (Excerpts of Dr. Rogers's testimony are attached to of f actors influence the ef fectiveness and long-term stability of these comments as Appendia A. ) cover designs. In order to assure that final covers w!!! be Recent research on cover designs shows that multilayered effective in reducing radon exhalation to or below 20 pC1/m2 /sec systems are f ar preferable to single-layer cover designs in for one thousand years, the Commission should require that design ' soeuring long-term redon attenuation and cover stal.111ty. High calculations incorporate a design margin to account for changes clay content in covere is clearly beneficial because of its water in moniture content and porosity, external erosional forces, and retention ability, since moisture in soil is "perhaps the most internal chemical reactions. toportant f actor upon which radon attenuation depends." GEIS at

1. Factors affectinq design d long-term stability oj earthen covers can have a profound adverse influence on the attenuation In its Final Environmental Impact Statement for Standards properties of clays the diffuelon coefficient can increase by

f or the Control of syproduct Materials f rom Uranium Ore two orders of magnitude with a twenty percent decrease in Processing (Sept. 1983), EPA stated that moisture content. CEIS at 9-41. i I e s

                                                                                                                                  =
                                                                                                                                              -U-l

C. Markos, Geochemical Mobilit y and Transf er of Cont aminant s 3 Proper cover design can accommodat e the effect of these Urantum Hill Tailings (19198. The constituent congounds an the variables on cover integrity. Dr. Rogers has concluded that piles- particularly the deliquescent salts--can lead to substantial mixtures of clay with coarser mater n als' appear s to be highly movement of materials f rom the interior to the sur f ace, can beneficial in manima zang cover defects and in maxamiring motsture create the conditions f or emothermic reactions, and can generate retention. V. Hogers & K. Nielson, DHTHAP penean ch on Cover osmotte pressures of several atmospheres. These and other conditions Des tga f or Uranaum Hall TA111pga. (Feb. 1984) (attached as can lead to mechanical destabilization of the piles themselves Appendam B.) Horeover, Dr. Rogers has developed a computer model and the covers designed to isolate the piles from the environment. (RAEco) that as capable of analyzing a multi-layered cover system A!! of the f actors out!!ned above may af f ect the integrity

in which each layer has a different diffusion coefficient, gerosity, of a cover system over hundreds of years. It is therefore thickness, and redon source term. -Id. Other ressaachers have essential that the Commission require licensees to provide a seported that multi-layer covers provide
hydraulic isolation" of

                                                                                             " reasonable assurance" that covers will' be effective over the the clay coeronent of a cover. For example, a gravel layer                '

long term by incorporating in their cover designe conservative between the cisy and the soil at the top of the cover sequence assumptions that account for the principal variables that affect will be ef f ective in maintaining the sositure content of the clay cover designs layer without active maintenance. P. O'Brien, The UMTRAP Technology Development P rnq r a m t This will tend to increase the cover thickness required A Progress Peport (1981) (attached as Appendix

                                  -                                                                     over that calculated f rom "best estimated

values, which would yield an approximately equal probability of C.) At the same time, such a capillary bar rier has been determined achieving at or below the design level, to be ef f ective in retarding upward migration of water and salts. 48 Fed. Beg. 45938. In short. the Commission should require that C. Gee, el a l., Radon control tg Hul11ayer Earth Barriers (1981) the design regairement f or long-term survival of coven s will lead (attached as Appendix D.) to thick earthen covers that have a substantial likelihood of s In addition to the variables described above, cover integrity performing as designed for 1000 years.

Yt can also be significantly af fected by forces generated f rom

within the tailings material. Though much of the work on tailings III. THE COHHISSION SHOULD kEQUIRE MONITORING OF RADON RELEASE AND management and disposal assumes, at least impliottly that the COVER STABILITY material is inert unless acted ugen by some outside force, there Part II of these comments, supra, includes an enumeration of is compelling evidence f rom the work of Markun that uranium mill tactors that may adversely af f ect cover perf ormance in attenuating tailings are very unstable chemically and thus, highly reactive. redon exhalation. In addition, EPA stated in promulgating its 10 11 standards that the uncertainty surrounding cover design may approach a factor of three even at the 20 pC1 level. Viewed in integrity of the covers could be adversely af f ected over time, that light, there as no rational basis for not including in the and given EPA's judgment that the effectiveness of covers can not sequarements f or management and disposal of mill tainings a monitoring program designed to measure radon eshalation and cover and capricious for the Commission to f a!! to establish minimum criteria for monitoring the effectiveness of covers. stability. The Commission, which exercises regulatory and licensing authority over such sites, should incorporate such a Such a monitoring program need not continue forever. Estimates requirement in'its regulations. - of the f actors likely to contribute to the structural instability such a nonstoring program should require annual site inspections of the covers can be used to determine a time period within which for the initial five-year period af ter closure to detect physical evidence of anotability is likely to appear. If defects in the' changes such as cracking and erosion of the cover, side-slipping covers are not found af ter a number of decades, then periodic of embankments, and so on. Site inspections asto should require monitoring can be saf ely terminated. But when actual experience monitoring of radon fluz at the surf ace of the pile and mee.ure- with covers in use allows us to conclude with a high degree of ment of ambient radon concentrations at the boundary of the pile. certainty that the covers will remain efective, monitoring is the over the ensuing forty-five years, the Commission should require only means by which the public can be assured that the health continued site inspections af ter major precipitation events, with protection goals of the Act are being achieved. a minimum frequency of at least one inspection every five years. 4 IV. If af ter four or five decades of documented experience with THE COMMISSION SMOULD DEFINE WHEN DISPOSAL SuouLD TAKE Pt. ACE cover installation and monitoring, def ects are f ound to develop that a!!ow redon releases in escess of the standards, these In promulgating standards for active uranium mills, EPA did not address the question of whos disposal must take place. 48 defects can be accounted for in the design of future covers, and Fed. Beg. 45942tcolumn 2). EPA recognised that during the remedial action can be taken to restore the effectiveness of covers,found to be lass effective than needed to achieve the period when tallings are drying out, redon emissions and wind level of pub!!c health protection required by EPA standards. dispersal of tailinge particulates wi!! be greater than before or Absent such a monitoring program, there is no way of ensuring after disposal. & Rowever, EPA decided to defer a decision on the adequacy of cover design, or the consistent performance of covers in compliance with the radon release standard. Given once the pile, is allowed to begin drying. ev&Jence that the piles may not remain stable and that the structural The Commision should fill this regulatory gap by adopting i , 12

                                                                                          .                                 13 5
                                                                                  -g3 -

JutMI gueats spectisc requarements f or espeditious disposal of tastings. eng eg aisonese v o,s winag HEarafD OLES g k [ 3 - I'arst, the Commissson should r eqia t r e that licensees beg an f ina l

                                                                                                                      .                .e M - l>                           /
                                                                                                                     *~ * " **~ ** "g* CONT ROL - 9 0 0                  ' 1 M.Y,lM.M.S.Ny                                           y stabilisation of a pile within one year of the time when it is                 *******
                                                                                                                      =: ;=:.7 allowed to began drying out, unless the licensee can demonstrate                                                                                 w . :;i eica N E:iL F . It A n T IG A t4                  -

that additional time is needed to dewater the tailings. Second, *"CUU U ' " A0""E' G E N E " ". -

                                                                                                                      , 2 =;,';f g a =                           svart or etunoss the Commissaan should proscribe the introduction of new liquids                                                                                   g {g. * **"        . , , , ,
                                                                                                                                                                                                                           ~ ~ ~~

7_,Z.',,T. c .

                                                                                                                                     ,.* '.**..O.*********                                 p o g- -
                                                                                                                                                                                                                *y*,"***

into a pale once it has begun to dry.' And third, dursnq the lC.'.OU ',w" N 6~~***-**a persod when the pale is drying but prior to ptscenent of a cover, **=='-**-~*-** till f. .. _ . Pn n's

                                                                                                                      '",*;,* *l*;**

the Commission should require licenseem to apply chemical duet .

                                                                                                                                                                                      .Af*d/sr/     .*1W- _ /2N}

D/2M C a*J d FT4 ~ suppressants to reduce the dispersal of tailings ~ particulates by January 9, - wind. -** 1985(Pet.:a u .) eJ ..'i aik ~ ~ { ' n N The sectetacy U.S. Nuclear pegulatory Commission I '2A Washington, D. C. 20555 m .a Bespectfully submitted, i p

                                                                                         %                                      Attna Docketing and Service Stanch                                           e-g r-Lh                                                    Res Proposed Rule, 10 CFA Part 40, Appendia A.                                '-

bert E. Yuhnke 49 FR 46418 Regional Counsel Dear Madam or Stra Mk a es B. Mart n A The People of the State of !!!!nois, by their attorney, Neil P. aartigan, Attorney General, subalt these comments with tglff Counsel respect to the referenced proposal.

1. The People support the language of Criterion 1 en-capt for the replacement of the ' thousands of years

language with *for 1000 years *. Even if stattar language in the U.S. En-vironmental Protection Agency (*USEPA*) standards, 40 CFR 5192.12(hl, compelled this change in Appendia A, the USEPA lan-guage applies only to radiological hasagds, ne4.to nonradiologi-can hasards: the proposed change to A ppe ndi a A apparently applies j
to both. Second, this proposed change is not compo!!ad by the %g. *
USEPA standards since the statutosy mandate unJet which USEPA *.-

lesued them did not authorise USEPA to establish a design and engineering criterion like that embodied in the 1000-year limita-tions hence that USEPA standard is null and, void. Finally, there

is no rational basis in any case for limiting protection to 1,000

                                       -                                                                                          years when the contaminants of concern areas~ long-lived as those
                                    *                                                      -                                      involved here.
                                       ,                                                                                                         2. The People support the change proposed for Criterion i                                                                                                                                  1.

1. The People object to the proposed reference in the

test to design and footnote 1 of Criterion 63 these provisions 34 C ^ L"bycad.dD

                                                                                                                   -IV-

W characterise radon control in terms of des 6gn rather than re- rgnally, the People object to deletion of the three-qutrement. These provis 6ons are not compelled by stallar lan- ..geg gequgrement for cover depth in the absence of a demonstra-guage in the USEPA stanJards, for such provisions are clear tY tion that a thinner cover will prevent human intrusion into p6tes matter s of design and engineering -- zatters which are outside over the long ters. USEPA's mandate under the governing statutes the USEPA provisions are therefore null and void. Second, these provisions are con- Respectfully submitted, trary to the very purpose of the Urantum Mill f allings Radiation f Control Act, P.L. 95-604, which is to asauce safe disposal of . mill tallings over the long ters. If the NRC regulations require only that disposal sites be designed to achieve a particular ANNC RAPRIN level and duration of radon control rather than that they actual- Aeststant Attorney General ly achieve such level and duration, the desired level and dura- Environmental Contro1 Division tson may not in fact be achieved. Furthermore, if MRC does not require post-closure monitoring, then neither it nor the public will ever know whether radon flu = to actually within the limits AR/jtn the federal regulators have determined necessary to protect health and safety. This makes a sham of the standard and of the saf ety concerne purpor tedly under lying it. . Design is only the first step in assuring saf e and r en t-able dLsposal. As USEPA acknowledged in proposing its standards, there are serious threats to the longevity of contaminant control measuresat tailings sites, e.g. human disruptions, was * %er , . geological events, natural chealcal and mechanical processes in / the piles (48 FR 19589). Furthermore, there presently asists no engineered design proven capable of permanently containing radio-

active or cheatcally hasardous wastes buried in the e'aund. 48 FR 45917. Indeed NRC Is aware of waste migration * .as at NRC-licensed disposal sites in Masey Flats, Eente'.y. dost Val- ,

ley, New York, and Sheffield, Illinois. Given thst historical esperience as well as USEFA's own acknowledgment of the uncer- ~ . Latettes of long-tera containment, the proposed footnote and design language are utterly irrational. The People further object to the proposed change f r om a 2 PCL/m2/sec standard to a 20 PCl/m2/see standard. No basis is given for allowing redon emanation at levele greater than back-ground, at least in areas where people reside close to the pile. USEPA itself acknowledged that even at the 20 pct /m2/sec release rate, the risk of fatal lung cancer to people *who live perma-nently very close to tallings piles can still be relatively high, up to 1 in 1000 for lifettaa residency.* to rR 45917. In this connection, the People also object to proposed footnote 2 to Criterion 6, which apparently allows an even higher release rate than 20 pct /m2/sec depending on the radtua content of the cover . asterials. This, of course, could lead to escessive radon i release rates and assures that licensees will have no incentive

   ,to seek out clean sotts for use as pile covers.
                                                                                                                          -IV-
                                                                                                                                                          .     . s

spel Muamta g esan drD I II

r e7 u,fore;*. Josuary 4, 1984 reg, g j ColosAnD oteAmm wT or Niana COLORADO DEPARTMEf\rs GE yr.. LTH .adie" - C ~ ret .1 vie - _ e m._, ewo 1316

t. .

t uus Da.oor CONMINTS ON PROPOSID CHANCES 1010 CIE 40. AFelNDRI A r* , , g, g g g . .gI"" t

                                      ~
                                              ~ Juu.cy s.1985         ina wt gig _, _                -

Two areas warrant commeet et thle stee. Commente on the groved-wat er-related Advance Notice of Proposed Bulemaktag will folluu later.

                                        .[                                                       .

D ;' t

                                  -T                                                    .      $              A. The seu rule propond by HDC, to add generic flesibility la relattoa to
                                                ~

d [8,/g[h8 / MM np the techalcal criteria for tatilage dispoest, appears to be a construettwo approach to considerles alternettves os e alte-specific pgfypw if 4

 .;*. , 5eererary. '.

4- 3 $s -

                                                                                       -      M.*

2 beste. Sees dtificulty to tenerpretattom to poselbte, heuever. U.S. Nuclear Regulatory Comelselee y }}s The Dep-teent's concere arises true recent Colorado espertence with the Washtugten. Oc 203D Helse Corbide Corporettes/Usetce Miserole Ce porettee esatseertog deatgee E 7,,- for the Sprios Cseek Mese ette. The federet statutory verdlag (Sec.'84c tDockettes med Service traech 3 Attet " of the Ateetc Fnergy Act) asse6ttally states that attensatives to get Usaatum Mill Telliego peputatleem. 41,11 46418 ,p,,ggg, ,,q,g,,,,,,, ,,, g, ,,,,,,,g gg,

                                                                                                                                ~*8"--"           - i" -u ~ e i- * ' a 6"i="en -4 u.e ,,or.e         rute. a..ge. co.f-stag 1.C         3. Ca ... Amendia A. t.
                                                                          **"I""' ""' ""
          '%,"::f"f **".? 'E.IN"h"2*I.**'  """'                                                                          @e.u.vedIE
                                                                                                                           ' " -1       -   <-r6-" add d >

UU "'Et'O!% b, et. nae ..d re,uirement MEb,6e e .de,ted .e4 es,emed ti,e renase .re aoCoim.d. .e,anse.t.. st..nh . cuament.. it < e 6'aios the ie<>aical criierla

                                                                                                                      ^'rtmo"i-re" ->4.e  a a e " - e r-" " 6 ""
           ,1,at . C.i.e o .g r ee, that .f f oai.g .,,nust. e.d nc es.ee s e,, t u,          u.ny    t.              - "--"> "" e "* "-o-6""r eau.... a. . roso.e nuseing e.u           . is u s yo,.se tu.v.ove .n                                                                                               1. Fru situ tes 1            Esput ette selecties is se gitessettom destreble. The seu letroJucates paragraph os et teressives. without                                                                          .

elaboset tee, does pose a hypothetical concere~that a door may be betag opened er f utune a states studence and enteistag costelement to the artent reasonably achievable. No stelnue standard for te laterpretaties and dif ficulty te def eedtog liceselet actiose-when a less e e I-tur- le attrula n d. than superter Jeelse is advocated et a less them optimal site. This teeue ' should be sorted out before tha floal rule to proeutgared. -l- C .*

ettleg f eatures are gives

                                                                                                                              . f*"     I#I*8 ****Id"*"I**

I'*I'"I'* *I III"8' I* _*

Second, the State's postatoes en sechotcal criteria touche t by the proposed feedtea of both alte characterlatice and engineer tog deegge". revletoes are included f or your coseiderettoa. Comme = ire of the ground-water-related Advance Notice "f Freposed Bulemak teg 3. If the only feestble este meer a ell 1 to delictent, eagtseerteE destge bears the burden to assure statene perioseance standards util feitou later this month. '"

If you have any queetteam about these commente, please coetect Een Weaver'of 4, 3,,,' should super ter, ecceptable deelge altes estives someheu BFsteU* be juded *1mpracticable". NRC's propped language, wite.out Slocuely* emplificottee, eight soply that se tef erler deelge be accepted, regesdiese of performenee level; ses *be proper action to rejeccles of the site see Jealg6 regardless.

A best J. Mas e. Irt ector The wordlag of the federal statute and the proposed rule reserve Radletion Ce trol Dtvistos discret tea-the Comelestee "may* treet euch alter <.attwee se satistytes requirements. Mosever, the proposed rule providee se detalle for sekteg such deterstaattees. if a generic previates le added, the Counteston would need a defusible Incleeures se seted workleg deflottion, la rule or policy, delleenting when e lesser Abn** hedged try u.d"***M*g- etternettve must, tour de force, be acceptedt thle =611 be seeded 4210 EAST llTil AVENUE DCf4VER. COLORADO 80220 Pliof4 0931320-8333

                                                                                                         .jg-t      - -          -                   -. __

r_ns. .

                                                                                                                                                                                    -    c-a    '

(.sn vt 4 tate) . da ar,. 1,.h pa3. , . CotDR ADO CfM9ttNTS ON pSOp05f D CHANCE 5 TO 10 CIR 40. ApylN0lI A eontiowed 7madf/ ['/.' [ [ [* / /' whenever an applicant er licensee suggeste that that ett superter DIM 3 designa, reachlag the eletene standard level of stabilisattes and co.taissent sad iewei of ,retone. .f puhuc beaub eaf at, .e4 ihe eastreameet, would be topsacticable . gy y

                                                                                                                                           , [g gagg, ,43g.p ., g - * -

la practice. the NaC ut!! seed to cometsue this, as the Celerade Department of Health has deae for Spring Creek Mees, to seguite that say . / y

                                                                                                                                                     #M h                        it

4 estraordtaary alternattva destga be aquel ta performance er better than a documented appsevable comparison destas for the ease atte.

Q)f 3, h A.g=L

                                                                                                                                                                                 ,A                 gigg
                                                                                                                      $0 /)t                   - W                         W           4Wid W                       -                             -

For long term eresten conc ret, accepteble er = proven = approaches. conferntes spectlically to the rules, can be developed and documented for any estating or seu ette (August 4.1941 letter of R. Foamer, ettermey ---

M M - - - - -

for NRC staf f, to the State et New Healce, copy attached). Thus, for

erentes centsen aspecta et a destan, licenetog staf f need not be draua . _

S- / ___ __ tote debate about the poteattel practicantlity loophete. For centstaneet of potees tal.Louaduater contaalmasta. NRC end the State

                                                                                                               *~            ~*              ~ ~
                                                                                                                                                              ~*                                                 ' ~ ~ ' ' '               ~~

can fully espect to see alternatives proposed ubach latt to meet staimum a

                                                                                                                                                   -- --- ~

y " '- - -- requiremente, but are advocated because other better destgae are - - - - - -- supposedly met " practicable

at a given ette. ,

gg The Departeest dose prefer that ette-spectile deterstmastees concerates altermaatvas remete on the more espiteit celterlea-by-castertoe beste. __ . . _ _ . ( th @ t - - - - - -

              .. g.g.r41 3 C.tt. 1.. .. Ih. C.,.r.d. 0.nrt       .t .f M..,t    . pr.vt... ,

etated poettions which are contrary to et least two of the proposed

                                                                                                       .       .                                   ,             a._                                             _          _                __

revistems conferstas to EPA's 40 CII 192 (see the Celerade Departeest of ~ ' - * * ~ ^~ ~ ~ ~- Health's March 14. 1983 letter to Secretary. NBC, concerates Petitt** - - * ' - ~ ~ > '.

paJt-40-24, copy attached). The Deporteemt la e party to !!stgattoa se W these matters (brief dated August 8.1983, for Case No. 43-1014. ANC v.

IN * - - - - - - Corsuch & ceasetidated cases, and brief dated October t. 1984. Case No. 84-1352,1st v. suckelshame & censolidated cases, all before the U.S. / A A 2tJ/ _ - Court of Appeele.10th Circutt). . . ,[ The State poststem to that: is e-

1. The longevity standard be et leset 1000 yeare et all attee and factittleet med ,

2. the ..it cie..u, stand.rd .e urit t.o. be.e4 e. aver.ging f e, .,3 exa;d ,4, noe wiu WDJL r

                               .. ng .ie... is in.un icteau , , rete u ive.                                                   ._. . .cci                                                        _n.
   .                ,ur ae r. C.i.rade .e,.rt.. af He.uk ,eue, ep-ac, .e .uie. f.                                                 SP-/                           Q=h ,q.y                                                        #

m-2

                                                                                                                                                                                                                        .. y p ois,...i of rainage    .ad O.a-
                                                 . evoete.
                                                      ,- n ua.tnSeuu.
                                                                 ,> has ~tos.1 mu s . d.ted                                                                     agjngg_

rebru.r,i, n u ite.. bee. a.te ggg_g1

3. no.u-tes of ..ue.t rado. is a nueseo, , art of an, reas tese care progree, contrary to the approach to NRC e proposed ggg( g i g.gtp q:

footnote 18 and 4 g_, C. c.

4. Averestag prestatoes be less vague thee these la feeteete 2. - aIE JQ NRC to not precluded f eem deutetag more specific criteria. r _-

                                                                                                      -jf-1.

1 1 V p m I Me Jiewan'. a===

                              ., . r . r :
                                                                         $O.7'Mg9.-4 g)'I'f a ers 4g5"""'Y h                                                                                       2 2
            ~~ ' (3          United States De}artment of the Interior                                                                                                                                            1 t

Ofilet OF THE SECitETARY WASHtNGTON, D C 202 o i

15) NRC lieerues shouW have omroved comphance monttmarg prqgreas that.. are I

                                                                                                                     .u t.ma ue.., as u.a te. am, . ,iement.d =,,e. n.ed.d.          rise se ,u.,ement .f tr,e EK e4/1489                                                        JAag g g 99g$ ,;u * * @ r32:~

y, -Jr" u gra< hastes scale of actaon sucsi es he stipu!.sted in Surpart F ==W provide a goal t,ese

                                                                      ..                           o U123#2           L , ( '                    ,E                  for corteettve seuens at the same itsee,it wouk2 ovoad " false alarma* that anght devabp p'---.-"[g8 ' % r -

Secretary -- from usary merely a detectim program. We suggest alms that a requirement of early Nuclear Regulatory Camreission 2 Pr'Paretaan of a contingency plan for possible future correctave ecuan wouks ou la use

                                                                                              -  *?                 constris: tion of a dispmel atte est la eff ective essaation of correettve eet6an. (6) The trasntrgtm, D.C. 20155             0 ': t m             , _.__M LA     -

S idgq[h D basse SWDA sehese for the tlatrq and &retton of a
compliance
pertad, a " closure *

Dear Slr Of p eriai,

east a

pest-elmure care
pated shouM be maintala 8-meth awrwrlate ikv *f.C

                                                                                ~_ _ . _ . _, -[    h.

ts va e,; g. _ - modificetbn of f1me perlude to cope meus differences la disposal procedures and the

                                                                                         #    7:    '-

nature of the mestas. Tisas, for example, the EFA's requirement of a post clomare core We have reviewed the Proposed Rulemaalry for 'ttranmara l.11LIafhrge Regulation.sg period of 30 years may not be appropriate tw some constituents that eaa t,e teacned Cmfaratry NRC Requirements to EPA Standards, whleh sweares in the Novernbar 26 If** **llLr4L 1944, assue of the Federal Register. The foRowl.g comments are offered for year consisterstis (7) Properly de stgted ams mahtained le sa-ee sec tion syste ms urmser airg te-Blaer We rute that annual site trupacuans are to be conducted by the gmerament agency layountaients eu fulfill the requirements fa a detectierr-meettrert system mir if a reinanity ulumeta custody of a site where tallirgi er mestes are stored (p. 46425L It tAlem section of urmiertyr.g natural rock a sediments has as Mitte inter granular w fracture persaeantury trat migretton of rm3tonuendes w cremical constituents of wouu be useful to arm 36cate what proutslons =til be made to enmare that pruperty localm1 leachates is effectively zero. mmit.; rug wells =6u be kept in coea$ltam to permat securote spot checks of grwraf-mater quauty &rtry the annualor period 6e sate inspeetaans arms how lary any post-clamare (t) NRC4 regulauens should be sufficiently detaned concermuy meu construction to trapaction er mmitcrasy woulJ continue. gnsure that aR sambtortry wetla are cases la a manner trat ensares Ele integrity of the Our respmses to use exmbered questions (p. 46428) are as foDoess dbservation sreS over the perkal of record, that the anauhas between the mall of the borehole at:1 the men casiry is sealms above the sampling depth to prevent catasalnauce (1) We beueve that orpropetate nestantive requirements of tre Sotkt Waste Disposal Act GWDA)la be placed in the NRC regulations shoubl be paraphased to agly direcuy to the (9) We beDeve tiet a sirgle rulemakirq would be adwtsable to estabitsh e complete set of

   ,      mill talkrgs situation. This should avoid emf.asam esta the am-egpucable portions.                      SWDA-cormparable requresaants. A strgte environmental impact analysas couk2 then (2) Amy of the substantive patsone cf Separt F pertaining to grournt-meter prosecuan                      evaluate the potential fw imparts that salgfit resalt from any settantial charges from prevacusly estabushed requirements, shaakt be Arm:luded. Items referrvg to the disposal aral/cr use of other types of soud e,este sr.auu not be anchaded. The secuos on concentretion Bretts aught be omatted, if                  (10) We have no comment regan!!sg thh.

the gwrpose is to sUow zero discharge to grourmt meter, that h, to require malatenance af preprojeea grourmi-=ater quaitry. ' Sturarety, (3) The Esttrg of tasardass eunstituents shouu irwbde those taste or hazardous seaterials rgrementes in more than trree amounts in the tallisp ans rednomettve constituents esceeding the Environmental Protection Ageney's accepted mestma. We suggest that the selectim of items (w t!w list of hazardous constituents shoubt be based . /D , y yy on records of teachates from taalanga, analysas of teachable constituents foums in varicaas , ' Bruce Blanc ard. Director types of tallirgs, at:1 review of tetansous materials i.smi la procentry, assae of which Envirmeental Project Review may be discharged mitti taCargs. (4)It is procticable to estabush the hydrugeukyleal characterntles of a tad!rgs site and of surrtmarn2uy lanin. It as eles practionble to determine attenuation prwerties of site J rocks armt sedusents-particularly le tanne, hazardous, arms redbactive constituents. Groual- ater enestmary can be plames, conducted, at:1 interpret =3 ustry established , procrace. These furusamental elements of current technokgy enouu t,e retained in devenwiry SWD A-comparable rgattements is uruern m!G ta turp. Acana.s.4=s tv conf. d(v I C h -- l f -1 B- _m

                                                           'a %,

e ~~~ ~ "~~ ~ * ~ ' ~ ~~~ ~~ ~ " - - ~ " " " ~ ~ j

                                                          / ("L ',                  UNITED STATES ENVIROf4MEf4TAL PRCT.ECTION AGC*JCY                                                      ,

IWP arsti entt::gg

                                                          ' ."?                                             wasmuicet o C 202c mann suu E.k-d'd j

WA464/Q f0 h

                                                                                                                         - *: - jgf 15 W5                                                                   "*C**********"'"5''****(-           'a* ** '" "82. con f ers authori t y to approve or employ

alternatives" to (PA standards. $ncludsag. but not e nn . .Y..$..no lletted to. groundwater standards. MC's statement is based on a essen-Honorante Samuel Chilk -..

Secretary t ;ul. 4

                                                                                                                                          , p.                                                      terpretation -f Sectlen 84c. Section 84c does not confer on MC authority to approve or employ alternattve standards or to substitute its judgment U.S. nuclear Regulatory Commission                                                                                                  for EPA's regarding the level of protectten necessary to protect public Washington. 0.C. 20555                                                                                                              health and the environment. Rather it authertses MC to approve or employ lleessee-proposed alternatives to MC's own general taplementgen

ATTEMil0N: Doctettng and Service Branch ; gre utrements when such alternatives would provide the level of containment.

stabilisatlism, and protection of health and the environment provided ery

Dear Mr. Chilk:

l entstlag MC requirements and EPA standards.

                                                                                                                                                         ,                                 g                                                                                       ,

in accordance with Section 309 of the Clean Air Act, as amended. l With respect to alternate concentration Ilmits (ACLs) and delisting the U.S. Environmental Protection Agency has reviewed the proposed Urantue of hasardous constituents. EPA established, consistent with its standards Mill Tallings Regulations; Conforming NRC Requirements to EPA 5tandards under the Solid Waste Otsposal Act, as paended, general mechanises for (4g IR 46418, hovember 26. 1984), alternate standards based on its judgment that such mechanisms could ensure equivalent protection of public health and the environerat. MC Section 8as(2) of the Atomic Energy Act, as amended (AE A). requires - Clelms that (PA overreached, because. In its view, such mechaatsas involve - MC to ensure that urantum and thorium byproduct materials (tallings) are site-specific considerations that MC believes Section 84c placed within managed in conformance with EPA's standards (40 CFR 192. Subparts 0 and its esclusive purview. We disagree with MC's laterpretation of Section E). MaC's nottce proposed certain changes in.its regulations because of 84c and of the concurrence issue. The fact that IPA's standards (or any this conforma 1Ce requirement. However. NRC proposed to Conform its standards, for that matter) operate In a manner speciflC to sites de mot regulations to only a portton of the (PA standard, reserving conformance render them subject to change or tavalid under Section 84c. The general to the rematader of the standard for a subsequent rulemaking. The reasons criteria involved in carrytag out these mechanisms for alternate standards MAC cited for this deferral of conformance are not suf flClent in our require health and environmental judgments. These judgments are clearly opinion. NRC's actice states that the standards became effective for MC within [PA's purview. floreover, such machealsas were provided by the - and Agreement State Itcensees and license.appitcants on December 6.1983. 524 standards recognized in UNIPCA. an( - as MC is aware - (PA's con- ' o

                                                              . In view of this fact and the non-discrettonary nature of Section 84a(2).                                                           currence requirement need not be esercised site-specifically.

the RRC should promptly conform its regulations to the entire EPA standard for both uranium and thortue taillags, including the standards for nonred- More gererally, in setting standards EPA esercised the ladependent toactive as asell as radioactive materials. Detng so would not laterfere judpent regarding practicability, which Congress required IPA sad NRC with any subsequent NRC rulemaktags necessary to comply with Section to esercise utthin their respective standard-setting and implementation 84a(3) of the AIA. whose provisions relate to waste management requiresents roles. Congress. did not thereby vest MC with jurisdiction to set. much other than the standards (PA has issued for tallings. M C's proposed less apply, alternative health and emetronmental protection standards. course would unnecessarily delay a mandatory action and create confusion Section 84 merely autherties alternate MC requirements to be used at a about the status and requirements of final. standards. NRC's notice site when delag so represents maalaus practicab!t adherence to MC require-acknowledges that these have been ef fective for NRC and Agreement State mests and when delag so would also attain EPA standards. Ilcensees and appitcants since December 1983. . In a related area, we believe the authority to apply alternatives Subject to the above comuments on the scope of the rdiemattfrgl Ve . cannot be esercised in advance of estabitshing

specific requirements believe that a separate rulemaking is appropriate for complying with the adopted and enforced by the Commission" under the AEA.

separate requirements of Section 84a(3). (FA will provide consments on hAC's Advance Motice of Proposed Rulemaking (49 f.R. 46425. November 26 As a general matter, the proposed chsages do not appear to reflect 1984) shortly. ... or laplement the leportant disttaction between new and esistlag wastes embodied in EPA's replations or, in that connection, to the *esisting portion

concept (40 CFR Ig2.31(j).192.32(a)(1)). Relatedly. the term

                                                                                                                                                                                                      " site

ls used at times to refer to milling sites, and at times to refer

                                                                                                 .                                                                                                    Le places where disposal takes place. The two are not necessarily the
                                                                                                                                                                                                    ,same.

p acknoMgad by card.$ 850tIu0329 BSOIOe P ghae6 ale PDft . 4 ,

                                                                                                                                                                                             .y Cg.

_.____ . _ . ~ .... --. - . . - -- . . - - . . ---- 0 3 '. ' e 4.

                                                        .                                              I 1                                                               *

} We all) provide additional coruments on the coroaston advanced notice J Crsterann 5. chan9e f a): Wile not objecting to the proposed change, of proposed rulemaking lag F.a. 46425 et g.) snortly. If you have any we note tnat f#Ps statea reason for the chaege could confuse the public questions concerning (PA*g comments, please contact Dr. w. Alesander about the requirements of 40 Cf R 192.32(a). het has described the standard williams (382 5909) of my staff. as not permitting any seepage to groundwater. However, the standard requires only new disposal areas to be designed to prevent such seepage. Stacerely, The stendard limits the groundmater concentration changes Caused by any i seepage that may actually occur from either new or esisting port tons of a tallings pile.

                                                                                                                                                                 /.             /AI \
!                                                                                                                                                          Allan Hirsch
)                    The htC should also consider adding a footnote to this criterton

l Director .

                                                                                                                                                                                         ~              -

explaining that further chaages or new requirements may result frois the ! Of fice of Federal Activltles ~ j second rulemaking. ~ t [ Crtterton 5. chanjeg: (scept with respect to *esisting porttons,* the goal of tsolation as a primary requirement is consistent with (PA standards and should therefore be retalned. , Criterton 6, change (a): This change is not required to conform to EPA's standards, which do not address the thtchness or cogosition of a "-* cover. A mlntame cover specification would be consistent with the goals of - the standard. hRC originally adopted the thickness requirement both to achieve a certain level of radon emissten Control (then 2 pct /m2s) and to - provide reasonable assurance of adequate long. term performance of the cover under erostonal and other stresses, such as plant roots and burrowing animals (see MC's TGEIS for Urantum nllitag, MuREG-0706, Section 12.3.4.7). Providing reasonable assurance of conformance to the flus standard and " Its long. tern maintenance are also important requirements for tuplementing - -T the EPA standards (see 48 ft 45938, fif th paragraph). Therefore, we - reccannend haC not delete the thickness requirement, but aJopt appropriate minimum technical cover specifications based on the FGEIS and consistent utth EPA's standard. The proposed language relating to " material to be permanently disposed * . suggests that some matertal is to be disposed impermanently or that some material may be ladefinitely stored. More probably, MAC intends only to refer to the coponencement of the Closure period. We suggest hAC Cla'Ify its intent. Chance 8: Criteria 2. 7, g, Il and 12 may be af fected by SWA . requirements relating to the same subject matter. As EPA noted in its preas41e Sections A (except Section 264.3), 8, C, D. E. F, G, el and K of - 40 Cf t 264 et seg. are relevant to hAC's rulemaking by virtue of the - proutstons of 5ection 84(a)(3] of the Atomic Energy Act. 20-

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                                                                                      -                                                         s ass ca ea secretary                                                                                [.jle)}l              DEPARTMENT OF HEAL.TH                                                    s :; w     :-u  -os :.

Page 3 5, January II. 1985 January 11. 1905 ****" avana.

a ex e.e: ,e o a n.

                                                                                                                                                                                              *,..~

transcended by proger pond placement. constructica, and design. * "U We feet lasecure relytag en a synthette liner as a primary means of groundwater proteettoa. t '[0 2 *i d ' '- - Jgg , (5) It to appropriate to have sa approved, automatteatly activated and toptemented compitance maattoring progree la place. ' (6) No input is effered on this question. AIIN: Doctellag and Service Stanch re.- 3A -

                                                                                                                                                                                                       -a-------                            --

(T) Constdertas the expense tavolved and the tafeastbattty of h/2M zada e adb'rM f. -- C, E* A % * ' *~ as

repatring a syntaette timer under volumes of tails, we doubt that an underergte leak detection syntee would ever be appropriate. We also feet that artilletal penetrattoes to aquifers, which nee wish to subalt for your coastderatlea the fellowleg comments could provide for contaetnettoa aggrattoa. should be used enty cea ermla the proposed changes la 10 CFA a0 putilched la the federal where aquifer contantaattoa is determlaed. by computer modeltas, 3 ter 1. 4 No. 220 M fl day howMber 26. ISS4. to be a possit11Lty. Critetta 6 (pages 46423. 46424) d ich is latended to control the (81 The areas discussed would be more appropriately addressed la as raden eelsstens free sell to less than 20 pCl/ mis is said to

apply unc Regulatory Guide rather thaa la the regulations. to any pertion of a licensed and/or disposal site malets such porties eatales a concentrallen GI radIMe in land, averaged ever areas of 100 (9) We count that better supporttas enetrommental tapact analyses for square meters, which does set escoed the background level by more the SWDA-comparable rules can be produced. The document prepared than: (t) 5 plcocerles per gree [pCl/s) of redlue-226. er le the catt ty the EFA (EFA 520/1-41-008) is as good as any, stace some of of thertua hvoredect entgdgl. radlue-213. averaged ever the first 15 the requirements. Such as synthette pond llaars as a primary centleeters (ce) below the surf ace, and (ll) 15 pCl/g of radles-226. 31 standard, are unsupportatie. (Botes as requested in the SNPS. q the gje of therlus byereduC1 atterial. rag}ge M averaged over 85 us are not conseatseg sa 'the beste value validity. lawfulaess, e thick layers more thaa 15 ce below the surf ace
a or appropriateness of so Cta i92.)

H u h hWW h Nt m um Msslea from (101 no taput to offered on this questtoa. s d s. H ca W re W e W m N W M W I M N 4 M H N as.226 for the felleulag reasons: If you have any questions regardlag these comments, please contact us.

1. Raden-222 is eeltted f ree Aa-226 with a half Ilf e of 3.023 Tour ruly, says =Alle Sadea-220 comes f ree Aa-220 (af ter 2 latermediate beta decays) with a half.llfe of 55.3 seceeds.

y c 2. Rades must diffuse through the sell to reach the atmosphere. 3av E. Lacker. Qinef The dif fuslen rate rf both lsetepes are essentially equal. Bureau of tediation Controt ., g .'! 3. T'e h easters of atens of Bades per pCl is greatly different. ass :sr. Donald A. aussbaumer g Jffice of 5 tate Programs T {

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                                                                                                                      ""'"PR-4L O esguen IIAA 1 " '"""PR O J asmanin auti Letter to u.5. NGC January II. 1985
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                                                                                                         .               mie)                    .

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t - v D(PARTMINI CX SOCIM AND HL ALTH SfRvlCL5

o. ,., n ,., v. %.,

D R:22 P22 January 10, 1985 *J.- for ta-226 A.uA a. .a I !.')'3;Q.S;

Aj fI
d[,a 3.823 4 a 24 ga3600g . -

4 m . II.631.7 atoms Ra-222/pC1 for An-220 m . 3 7 m 10-2 sec s 55.3 sec U.HJ . N . 2.95 atoms en-220/ pts Donale A. Nussbaumer On I pcl of an.222 has 5.973 times as many atoms as I pCl of Ra-220. # 'f *,",", [p ,,,, Of fice of State Progress is summarlse. I pCl of Re.222 contales nearly 6.000 times as many , U.S. Nuclear Regulatory Crar.lsslea atoms as I pCl of An-220. as 11 dif fuses free the sell at esseattally II '"I"* **

the same diffuslen rate as the An-220, it has nearly 6.000 times as long to get out before decaying. Dear W

                                                                                                                   .r. bussbaumer-a Thus one would espect atmospheric concentratten of these redon                                I ar. transalttlag a copy of the comments made by Mr. Joe Stonr. Uranlua kill isotopes ever sell havlag equal concentrollens of R4 228 and Sn.226. ta                            Program Manager conceratag the proposed rule to amend NRC regulations to differ by a facter of ever a sillloa.                                                              cor. fore to EPA 40 Cft 192 standards and the advanced notice of proposed rule c.astas sealsag with groundwater preseCllon prowlslons. Ime Comnents repre-silth these f acts la sind. how could the same standard be used for                            sent tne separtment's positica la regards to tne specific caanges proposes.

Saden 222 and maden-220F Stacerely. We reevest the haC to remove the reference to sadon-220 and Radlue-228 free Crlierta 6. We else request (PA to.recessider the thortue standard and revise it accordingly. dancy P. rirner, Suf ervisor Staterely, haste Panageneet unit J. "iE*I9 % Centrof Section j Slaine R. Neward. Certlfled Nealth Physicist cc: Jack Heraer, Reglen V

                                                                                                                                                         ~.. r           c.a.                          .

Sureau of Sadiatles Centrol 3. 4eaac 6a LF.13 0.mo.a. s.,g g DNN:cw cc: Jack Russel, (PA, Washlagten g . T D WDf' Ye =-f. , N -- a .

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                                                                                                                    , , .               ,,                                                             OEr*SE O M page three                                       +                                 "E   Lf                                                                                        DeAECTO
                                                                                                           ""A'        _ -N STATE OF NEW MEXICO

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VI e (NVil10NMENTAL IMPROVEMENT OlV1510ll

6. Ibe bRC should Coallmue to estabilsh reeutresents for post-Closure J e E ONME.NT , . .. .s an ma care in a manner that will minimite reliance on active malatenance. [e_ ,,,,,,,,,, ,, .y

7. The use of a lest detection system under a single liner impoundment should be It to the discretton of tAe NAC and agreement states af ter review et site specific data ladicate this is a possible Februp v ?. Mi!

op tion.

8. Specific guidance on all items mentioned entsts in the regulatory li te ra ture. The mRC's regulations should continue to allow for Mr. Samuel Chilk. Sec-etarv site specific reeutrements to be implemented cy license condition s la.5. *:uclear 'e;ulatory Coamiss*::n by the stC and a'greement sta tes. %aspenston, D.C. 20555

g. no cosament.

Art [*f loss: Docket tag and Service Saanch

10. Flestbility cited in the proposed addition should be suf ficient.

seer pr. Secretary; J5:tg on asehalf of the State of 'iew s'esica, we submit for cons *4eration our concents on the crocosed ament *ents to the '8uClear Geoulatory Comunission's 10 CFR Part 40 -eoulat'ons certa 8alne to active u antaan mill tail 8nos sites. These coaurents also address the anoroach WC *s taking ts adoot confomine regulations to the Environmental Protecte o , aa,,cy.s erey* ao rF4 I M final rules 8ssued na testenbe* 34 **11. ge'n e croceedine w8th specific coseants on the contents of the ornonsed

                                                                                                                       *ule, a oeneral comment is in 9-ter as to the Casumission's 'ecistoa to soIIt its rulemak'ne activ8tles into two stases: the first ***no        t%e suhleCt 9ule and the seCand befeo an Advance 410 tice of P-1Sase4

pulematene fAMPRS to adstress oround wate- orotection reo.etrecepts. lA ' le we understand that it 8s the Cammission's latent to soced uo the rule-

' , matlan process hv utilla'ne this crocedure. 'a c.sr view tia 9rncecure chosen by sueC oniv further oostoonas the vittaate 3-caulnatsse hv *SC of definettve fede-al standards. Such stancares s..st be in oiace eefo,, a licensee's reclamation plan can be oracerly evaluated and sooroved. This further delay on the part of the *ISC places an Aereement 5 tate, such as 1ew 8'estco in a serv **lf ficult oosttion when confronted das we are cresentiv.

                                                                                                                        *Jy one "new Mestco licenseel with a reclamation olen by a licensee who ask s te what standards the plan is resulred to conform.

The State of new we nico will subeet seoarate cyments on the ANPo, by tre

larch ! deadtlee for casaments. Our detailed comments on the orooosed 4ule.

deallao with amendments to the Coswission's as*stino -October 1. '9f0-reoislations 8Anoendis 4 to li Cf4

art 401 are as folinws:

88% let-nduct*on sc': la thes oaraorao>. tre "C's oroosset riodtfacateca allows that *liceasees or soolicants rev orocose alte-natives to the soecific recuteemaats in tils Aooendia. ..* F 1 3 1985 Acknaaladsed by casd..... EB.. - em : -c-n r-e .=-e=

-u-

a aC*eti ae in fe*v'Ce ?-acch ao .g.nc i.e 5*,v C ,*rante f**, sev 2 ***?

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5 . . fu- e n's ooe'st*3ps sa4 *** . . * ** **se t**o **5

                           'ai "h    s chane* do*s cet orev e:*e a t e=*      f e*** fee Cann t 's*C o .                      endificatina     'a*    + *C% C%4a:*s the lancusse 8 ?" select **a     C 'te"*t fri" slteratt've talt8eos dissatal s*tes* 'veale. *se g enes nag                ,*g*      3 T Its esol'Cet oa e s en t s t

ns **r l'C ensees '9- <*C e'v * *
eco evel d' scla 6e *"* toollCa.s t *t v of t*e st a tet 9"*er.!* ve ta the ce* * * * "f 1* 2*::cs*" alteratt ves 8 5 ContraC*Cte1 *n th* 2"#2 i

                                                                                                      '%.                     aC**ve aie-at*ons .
                                 **13nsef *.las Ind e r 9t* t>at only "arv'iss ten aonrow.t         *g <*n.6,.d.

uneve . *he 4*:se e se rp *2*. lovemoe* 4. !*Aat 'rf* Cates t*st '3* C'*!** *** ! - Ie re.* t' vine C

tee 're 5 to *6e : moet tble w' th it' e

                                !.nh *oasn's t'on acc the 124 Af*-Inistrain*

s Concurreate are re'>s'*eserts of the Selld Maste Sis 20 sal Act *5ndOAI, would et act %e requ 'e1.

a Jh eCle 's the soccoortate e-aanizattan to Contact. are advisable to state *noressiv t>st LPe standa*r ls "no degradat on t's i es (F tonCst' ente **1u'eed? grtsed matte Suality". *ath** than Itavino (P's CruClel eatte* to 1*peral ref tetrCes in the !*t'odJCt *on to "to Of* oa*: '9?. sch :a-'s '

                           *Cl AnoleCattCa if the 3reersef ule to entstino licensees la seC.                                  aaf i* a9d/or in the " State-eat of ?easons* +*Ch aCComotav N t          e            3-*

W I*S% Aoreement St&tes is not made Clear. Arguable thlt *4 nCt 3 art of the Cre ge-son 8tself* aC1*essed *n !O efe sec. If(5.31(bl. =40Ch *eou6res that Aercemeat 5tates %sve re*Julat*ons wheCh are esutvalent to the esteng 'al frite* loa F = o-sct cable, oe so e steineent than Cosneession eo.elet tons on eelt i tail 6ans. *4ome v er , et asent he a#wasable to % eve an 'an 18 the I s t sent**C

un/** I' 8 '** 'on 6. **e t **e *d esnos,s area"

                                *aooI*Ca%stitv* note or Cross refectstCe to seC. I5fl. P f >

in the ape #3 in be t*efen*(, The i31 in issulpe its f*aal standi*1 la Apotawles A *eoulat e.*es, the federal P*eistee ' int. 48, *p. esg, n, arieas*, reganer this

                                             .                                                                                      teee sad et sop *ars the *I8r emeds to sea the same 'er C lar e C at iae fdl In the utilitation of sit *-soeCif6C orocosed alternatives" to tb9                                    op*ooses.

soeC6fic toulatore standa*ds set forth in Accendia a regulations the *ef allows *tsel' an ede6nss trattve "fleethelity" wh8Ch 84) It 's recoeurended that footnote * *nr Cr t!*rton 4 of Anoce<"a A he cresuoooses a situation wh--e the r o,unesseon , ell be evaluatino deleted. A monetarian st*oulat'en for *teon aft ** installattoa of the adeguaCv of alt **aat tves oroonsede he se s cwn I sCeaseag, the Cover would he so-e Cessistent with the *oost-Clcsure Ca*** eelative to the Ano*adts A staa*'ards. Beaw t%8s oeocess will aooly requirements of the 5'aPA for e :und water. flaid mon torine s to ao*eement State llCensees Is unclea . 5snCe 48C *Jenerall, should he resulred af ter stabilitation to ,e,sf y that the res*nn reta*ns authority to decide nethee tereceegt State eav6reneental Criteria requirements for ea, son .=,nggeon have beta attaine1. standards see Concatible == ten 'ederal staada'ds. does this erniv thag asse .stl elga retain Concur-enc , a.stkartt y to d* cide hether If we can *>e of further assistance, cr shoult vou -eeutre Clar6f* Cation on a parttCuls site.socCtf8C o-enate 4 alternat*ve" suff*C eegl , i any of these Comments clease feel free to contact et or wr. stea e*aecis of t wol6es enth ein*eue feie'al standa'es in Aerocaent $tates? With my staff at f505* 984-0020 est 2R. resneCt to 'lCedisees of Ao**eapat # tat *s wh8C% Pave *ever Prea 43n*ove4 %v "PC 25 sec. 20?!'o n Aaree ent States. = hat autho*'tv Stacerely. well the *;gC oreetta to the Ao eement State in eval *rsttag se te-seeCafIC *sconoset alteranateves** dg fe* The prooosed 'ule does not Clearly clace tre burden ueon the Pentse fort l6Censee to orove the adequaCr of the *ornoosed alte- atlve" to Olretter satisfy the reoutrements spec 6 fled *n the Accend6e A *etulat oons. In'Ironmental laoroweent Civi tica Ml?ht it not be advesable to o' ovide that the llCensee has the twarden of orov 6 ass the suf flC tency of a prooosed alternative by 0FIfnat/Cve

                               *C le ar sad convencine ev'dence.' etC*

                                                                      "ast numets
                 / I %-                                              **hostD guli           ~k                           .

pranciple, the Commission should retain its standard f or redon

                   /k                                               hQM gg                                                                                                      Congress's implicit ratificasson of FUND              exhalation 12 pci/m /2 sect.

f .; _

                            ; ENVIAONMENTAL DEFENSE                                                                           the commission's 1980 !acensing requirements for urantam at!!s f
                       '                                                             rebruary 8, 1985                         provides further support for retention of that standard.

Second. EDF's initial commente pointed out that field tests 5+cretary of the Commanston in Grand Junction, Colorado, have demonstrated that several cover C.S. Nuclear Regulatory Commission

2 k thington, D.C. 20555 designs are capable of attenuating redon ashalation to 2 pC1/m /

Attna Docketing and Service Branch sec. These supplemental comments provide f urther evidence that pe Propused Rules to conf orm Uranium Mill f easible to design and cons'truct covers that will, with Taalings Regulations to standards it is Adopted by the Environmental Protection reasonable assurance, reduce radon exhalation to 2 pct. Agency (49 red. Reg. 46418) Third, regardless of what radon flus standard the Commission

Dear Sir or Madam adopte,

it should specify specific criteria that must be incorp-On November 26, 1984, the Nuclear Regulatory Commission orate in any cover design. For example, cover designs should requested public comment on proposed rules to conform certain of use engineering assumptions that reflect natural conditions of its uranium mill tailings regulations to the standards adopted by e il a isture content rather than artificial moisture conditions 49 Fed. Seg. 46418 (Now, the Environmental Protection Agency. that may not persist over the long term. 26, 19843. The Environmental Def ense Fund submitted comments on g, J nuary 9, 1985, but also requested an extension of time f or Sub- The Commission's duty to protect human, health and saf ety public comment in light of the importance of this issue. f rom radiological s'nd nonradiological hasards associated with sequently, the commission decided to eatend the perJod for public uranium mill tailings is founded upon section 84 of the Atomic comment to February 10. Energy Act of 1954, 42 U.S.C. section 2114. Section 84talt23 The Environmental Def ense Fund's (EDF) supplemental comments requires the Commission to manage uranium mit t tallings in a en the Commission's proposed conforming regulations are set out First, manner that conforms to EPA's requistions. in, addition, section below. These comments address three principal issues. - Ottalt!) mandates that the Commission promulgate regulations that where necessary to protect human health and safety, the Commiss ten are necessary to protect human health, safety, and the environment. has a duty to promulgate regulations more stringent than EPA's Thus, while EPA's standards establish minimum, generally applicable standards. In keeping with that statutory mandate, and the A1. ARA limat.ttons f or radon . man. tion f rom uranium mill tailings, ene g,,, _% c . ... ., - 2 [ a.,*,. a m., c sama Tomai *.e sos a .es u . wu, cio oc. swrta, cuc uo v sma== co o,mts n e , . Nh* N Ad E }& _______ _ _ _ _ _ _ _ ________ _ _ _ _ _- _ -_ _ . - _ _ _ _ _ _ - - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _

                                                                           . .  -.           . .         _ .     ........ ~ ..         .. ,_ . . .. . .. - .                        ..      .. .

e

                                                                                                            ~
                                                                                                                               - ~ . -

Commissaon has an andependent duty to assess health risks assoc- potential routine releases from the nuclear fuel cycle." 45 Fed. satcd with those standards and to impose more rest rictive r equire- Reg. 65523 c.1. The Commission also found that esposure to m:nts if necessary to protect human health, redon-222 and its short-lived decay products represents the single The Cosmassion's own analysis of the Atomac Energy Act, as greatest contributor to risk to human health f rom uranium milling to:nded by the Cranium Mall Ta11&ngs Radiatton control Act, and mill tailings. U.S. Nuclear Regulatory Commission, 1 Final ; retaforces that concluston. At the time the Commission assued Ceneric Environmental Impact Statement on Oranius Milling at 4 ats regsstations to specif y licensing requirements for urantum * (Sept. 1900) (hereinaf ter cited me *FGEIS*l. pilling activitaes 145 Fed. Reg. 65521-65538 (Oct. 3, 19801), EPA The scientific evidence that has become available since hid mot yet issued the generally applicable standards requtred by issuance of the FCEIS reinforces the importance of taking all feasible measures to reduce radon emissions f rom uranium mills the M111 Ta a langs Act, 4 2 U.S.C. s ection 20 2 2 t bl. As a result, to commenters argued that the Commassion lacked the authority and from mill tailings piles. For example,'EFA concluded that to issue its regulattons until EPA had acted. However, the the major health hazard f rom tailings- arises f rom alpha radiation cammission rejected that contentions f rom inhaled radon decay products, citing a 1990 report of a the Commassa%n not only has the authority but also the subcommittee of the National Academy of Sciences. 40 Fed. Reg, immediate duty to insure that the management of ure.,ium mill tailings is carried out in a manner that will protect the 45926, 4598 c.2 (Oct. 7, 1983), citing, ThJ Effects oj Fopulations pub!!c health and safety and the environment. of Exposure to & Levels of Tonizine Radiation 1900 (Committee 45 Fed. Beg. 65523 c.2. . on the Riological Effects of Iontaing Radiation, National Research when its regulations were challenged in the Tenth Circuit Councill (1980) (hereinafter cited as BEIR III). In a report Court of Appeals, the Commission renewed it s argument that *1ts prepared for the Environmental Defense Fund, Dr. Julie overbaugh cuthority to deal with the problems of uranium mill tailings is reviewed several more recently published epidemiological studies of grcater than merely implementing and enforcing EPA regulations.* underground miners exposed to elevated concentrations of redon, Prr McGee Nuclear Corp. v. Nuclear pequlatory guitsion, 67) and found that the risk estimate given in BEIR III represents an F.2d 1124 110th Cir. 1982) (awaiting rehearing en- ba nc i. Uttimate-appropriate average. J. Overbaugh, Discussion of the I.ung Cancer ly the Tenth Circuit upheld the Cometssion's regulations, includ-ltisk Resulting From Radon Esposure to the . General Population at 6 ing the requirement that tailings covers be designed to reduce (Sept. 1984) (attached as Euhibt) S-1). Isow ev e r. Dr. Overbaugh radon itua to 2 pC1/m 2j,,c, t also reviewed a study by Drs. Radford and Renard, who calculated When the Commission assued its regulattons, it found that that lif etime follow-up of the cdhort within their study would

    *rsdioactave releases f rom estating malla constitute the largest
                                                                                         ' result in a lif etime risk estimate of one excess case per 1,000 4
                                                                                     -2f-

                     -      .              _ _ _ -                 . - . .          .                    -      _. . . _ . . - ,                              ..         =                        -        -. .
          .,m     .

1 I . l198 21 U.S. Code, Cong. t Ad. News 3611. As is explained : sore peg WLN. Ld,. a t l' In light of the C**P*lting evidence of a positive correla-in Environmental Defense rund va auchelshaus. No. 84-1352 i tion between espos'u"sa to radon and an increased risk of carc no- a l., ion the Commission should exercise its authority under sect conso1& dated cases) (!Oth Cir.l (a copy of this brief to appended as fJoge s t s, 34 of the Atomic Energy Act to retain a radon flux standard for 2 That standard was clearly pill ta11 togs piles of 2 pCi/m /sec. existed in 1980. The supported by the adminsstrative record that scientific evidence that has accumulated since then provides C1 standard It is espectally revealing to examine what Congress thought 6dditional and persuasive evidence f or retaining a 3 p l it was approving when it enacted this amendment. At the time ) 12 order to protect human health.1/ And perhaps most important for purposes of this proceeding, Congress implicitly ratified the ence report was printed in September, the Commission had adopted Co**assion's standard when it enacted section 22 of the Nuclear Commisssion Authorization Act of 1982 and 1983, Pub. final tailings disposal standards setting a redon flux standard 8*9*1""*fY 3 7-415

0 6 Stat. 2 0 6 7,108 0 (19 8 3). of 2 pC1/m 2/sec. In proceedings before the Tenth Circuit Court 3" N**

Section 22 of that Act amended section 34 of the Atomic of Appeals, the NRC strongly def ended that standard and argued that costs are relevant only to the entent they were considered Act to authoriae both this Commission and EyA to consider

!           Ener'9Y                                                                                                               l     .
             *ocnomic costs and other f actors in setting standards and promu -                                                                   in determining whether standards are technologically and economic-Now-98 tin 9.se9utstions f or management of uranium sitt tailings.                                                                       ally " feasible." Indeed, the committee members f requently ref erred that amendment did not amend or modif y the central policy                                                                to the Tenth Circuit's decision sustaining the Commission's regu-
             er' lations. Similarly, EPA initia!!y had proposed a 2 pC1 radon i

af the M111 Tailings Act to.*minimise or eliminate radiation On the contrary, the conferees fluu standard and had asserted in its draft EIS that the agency l health hasards to the public.* C f rom i made it clear that they had no intent *to divert EPA and NR was justified in considering f actors such as cost only once a d their principal focus on protecting the public health an - marginal level of health benefit is achieved. 46 red. Reg. 2562 sa f ety." M.R. 8*pt 3 7 3 4 4, 3 7 th Cong., 2d' Se s s. 41, repr i nt ed LP. iden. ,, i,.ii. position--that protection of *" '****'" " **"*** " *"** ' "*" *** "**

The Commission's of ten-state

                'kira**e's**f'*                   **'retention 1                                                               "'

o,"* of the a /Ci staD*a'r'd-"E*'i'Ec" C regulatory scheme that included a redon flus standard of 2 pC1. o., Lar-83-19, 17 Nac S73, S71 g)3e33: Union ElectrW CA, W 372 titlel. And in ratifying the decisionmaking criteria that the Commission T.e~-31, e unC 366, S 4 I I 29-I f

htd used in selectang that standard. Congress amplicitly af firmed First, Mr. Sealy notes that the response of natural soit and suppor ted the Comma s s aon's decis aon. In light of both that mater nals to long-ter m changes in the natural environment eupport an the law, and the compe!!ing evadence of health ranks cannot oe predicted with precision. However, it is possible to ecsocasted w atn radon esposures. the Commassion should retaan the measure the range of response of natural soils to changes in the 2 pC1/m 2/sec radon flus standard in Appendas A to 10 C.F.R. Part natural enwaronment. The estremes of such response ranges can be

40. ascertained with a high degree of confidence. These measurements then enable the desagn of taalings cover using the estreme values II*

in the range so that the system will withstand the 3nost estreme Several f actors will af fect cover performance over time. However, soa! maasture content plays a dominant role, while grain As noted above soil motsture content is the critica's factor ease distrabutton. porosity, and other parameters play a sectadary role an affectang radon diffusion coefficients. V. Sogsrs 6 R. M&olson. UMTsAP Sesearch on Cover Design for Uranium prevail in arid regions of the West, so!!s w!!! retain some Mill Taalanos 248-49 (1984) (appended as Eshibit 5-3 ). One of moisture, and everage moisture content in soils can be measured. , th0 princapal reasons EPA selected a 20 pC1 radon flus standard 1 Mr. Sealy reports that most clays sas. pled as part of his work in l gwsr a more stringent standard was the agency's concern that ! tactrtainties in measuring and predicting these parameters make conformance with more stringent desagn st'andards impracticable. 48 Fed. Beg. 45917 c.3: Environmental Protection Agency, 1 Final 124.* FGEIS a t 9-41. ~See also V. Bogers ~~et al., ~A Hand-Enwaronmental tapact Statement for Standards for the Control of book M the Determination of Redon Attenuation Through cover SY* Product Materials from Uranium yO Processing '8-11 (Sept. Materials (1981) (soils in uranium m!!!!ng regions in the West 1983)ihereinaf ter cited as Active Mall Site @ . However, the ettcched report by Curtis 0. Seaty. Prof essional Engineer, demon- i ctretes that a cover can be designed and anstalled on a tailings palg that will, with a high degree of certaanty. achieve a radon I carnation rate of 2 pC1/m 2/sec. (This report, appended as Eshabit S-4, is an affidawat Mr. Sealy prepared for incluston with EDF's

                                                                                                                                                                                                                                                                      *                          ~

c ply braaf an Envaronmental Defense Fund E Ruckelshaus. supra. claded using an eight percent value as a design factor increases 1 8

                                                                                                                                                                                                         -30"

                                                                                                                                   ~
                                  .,        , . . . , .    . . - . . - -             - . - - - - - - - - ~ ~ ~ ~

and is substantially greater than the value used by EPA in calcu-tbo thickness of the cover. and therefore its effectiveness, I cbove the manamum needed to maintain a radon flum at 2 pCaim /sec on this informa5&on, Mr. Sealy concluded that a cover designed in far the long-term. In other words, the eight percent value is at the manner used in the Grand Junction field tests (1.2 meters the entreme end of the range of ambtent mot sture content for compacted mancos shale.1.8 meters adobe clay, covered by another natural clay sottss a system designed using that entreme value 1.3 meter of additional materiall would provide a system where it will reduce would provide a htqh degree of certaanty that the mancos layer would be isolated f rom the zone of evaporation rsdon emanatson to 2 pCL/,2fs.c, In addition. h&gher moisture levels can be maintained in long-term. soil materials that are isolated f rom the zone where soils are In sum. the evidence described above demonstrates that oEbject to climatic influence. Sealy Affidavit at S3 FCE15 at 9-41. the principal variables that af fect cover performance can be Mr. Sealy's prof essional judgment is that the effect of surface identified and the range of their responses to environmental otaporation is not significant at a depth of greater than seven changes can be measured. That. In turn, permite design of covers feats soil materials below that limit will be dowatered only by that will reduce radoa flus to 2 pC1/m 2/sec under the most gravity dratnage. and can be espected to retain much higher . extreme conditions that are likely to occur. In' addition covers Thus, a cover of more than moisture contents than eight percent. of a depth suf ficient to isolate a clay cap f rom the zone of ocwen feet in depth will be significantly more ef f ective in climatic influence will provide further asurance that the cover reducing radon enhalation than was estamated by EFA. will remain ef fective over the long term. Finally, the field Finally, a recently publashed report of comprehensive field tests conducted at Grand Junction confirm the f easibility of l tests of tallings covers demonstrates that covers can be designed designing covers that will reduce redon emanation to 2 to achieve the 2 pC1 standard. J. Martly, et al. 19 81 Badon pC1/m 2 /sec. Based on this evidence. At is clear that it is Barrier riend Test~~~~ ~~ at crand Junction Uranium Tailings File quite practical to design for, and meet, the commission's 11983)lappended as Exhibit 5-53. The most effective earthen existing standard. It is equally clear that the 2 pCi standard cover tested in that project was constructed of a bottom layer of of f ers significant advantages for protection of human health and mancos shale and a top layer of adobe clay. Seely poport at 7. safety. The 2 pC1 standard should therefore be retained. Mr. Sealy states that in nis emperience. mancos shales typically III. have a moisture content of twelve percent. which is comparable to 2 the moisture content reported in the Grand Junctaon field tests. pegardless of whether it adopts a 2 or 20 pC1/m j,,c, ,g ,_ 10 30-

                  . . . . . _    .    ..     . . . . . . . .     . . . . . ~ . . . . . - . . . . . . . . . . . .                                                                                               . - . -

dttd, the Commaasson should incorporate in Appendia A to 10 C.F.S. P lace. EPA decided that the licensing agency should esercase the P:st to techn4 cal desaga critetta that w111 assure that cover responsibality for determaning when disposal takes place. 48 desagns ws!! be ef f ectave an attenuatang radon enhalation over Fed. Reg. 45943-944. As a result, there currently are no stan-tuo long term. Those design criteria should address the key dards for contro!!!ng emissions of radon and other radionuclides vertables that affect cover performance. from mill taa!!ngs piles either during the post-operattonal phase first, Mr. Sealy, Dr. Soger s, and the Comma ss &on have iden. . or during periods when a mi!! is inactive. This is a regulatory titaed ambient soal maasture as the key parameter that af fects gap the Commission should it!!. redon diffusaon. In addatton, both Mr. Sealy and the Comma ssion The prescription for new uranium mi11 taillags piles is have observed that there is no certainty that artificial measures relatavely straaghtforward. The objective is to reduce the sur-taken to increase soil maasture wall be ef fective over the long f ace area of the pales that is esposed to the environment at any t;rm. Therefore, the Commisston should require that licensees one time. The simplest means of achieving that is to require de:1gn taa!!ngs covers that include clay sotts with high water . that construction of new tailings p!!as use a phased, or staged rotention characteristics (such as the mancos shale tested at disposal system. Staged dasposal would not only reduce radionuc-Grand Junctaont. At the same time, the Commission's design 11de emissions during the opertional phase, but would also assure criteria should require that design assumptions reflect natural that only a small portion of a pile remains to be covered at the conditions rather than maintenance of artificial conditaons, time when a mill closes, either permanently or for a substantial . Second, both Mr. Sealy's report and the FGE!S document the period of time. importance of desagning tastings covers of a depth suf ficient to Progressive reclamation schemes segment large taalings areas isolate clay layers from the zone of evaporation. The Commis. Anto a number of smaller ce!!s, and involve sequential construc-tion, filling, and reclamation. Such disposal programs substan-alon's desage criteria should require that covers be desagned of eef ficient depth to isolate the clay layer f rom climatic conditions, tially reduce the surface area of esposed tailings. 1 Actave (Mr. Sealy's report describes a sample method for estimatang the Hill S h ES,at S 7-5. As a result, staged disposal can reduce cf fective limit of evaporation below which soils will be dews. the amount of tallings dust by seventy percent. & st 7-8. It tered only by gravity drainage.1 also will reduce radon emissions by seventy percent, and staged IV. disposal schemes that maximise the amount of tallings covered by water can achieve a ninety percent reductaon in radon emanation. At the tame it issued standards for uranium m111 tallings, EPA dectaned to address the question of when dasposal must take & Moreover, staged disposal will reduce radon esassaons durang the post-operational phase by seventy percent. Q at 7-12. 11 12

                                                                                                                 .-3 2 -

are impressive. Letter of April 12, 1984, f rom Glen Stuhtom in short, staged disposal substantially reduces radiological IU.S. EPAl to Mary R. Spain (commonwealth of Virginiallthis I risks to both nearby individuals and regional populations, PCEIS document, denominated as Exhibit S-7, is beang submitted under at 12, while suostantaally avoadang the need to more precasely separate covers. EPA calculated that du, rang the operational define when disposal must take place. And the Commassion already phase, this operation would result in the release into the atmos-has found that with careful plannang, staged dasposal can be accomplished without incurring costs that are much, if any, phere of 400 curies of radioactive material per year. By compar-ison, a typacal conventional m!!!'in the West releases 4400 larger than cases where taalangs are disposed of in a sangle impoundment. curies of radioactive materials per year. The disparity during the post-operational phase is even more significant. EPA esti-Work that has been done recently in conjunction with proposals mated that post-closure radioactive emissions from the state-of-to mine and mill uranium ore in Virginia points out that industry the-art disposal scheme would be approutmately 0.04 curies per is capable and willing to employ disposal and reclamation techniques year, while a typical tailings pile in the West would generate tt.; represent significant advances over more conventional opera-7000 curies per year until final reclamation occurs, tions. One report in particular describes a s t a t e -o f -t he-a r t

system for tallings disposal. C. Baker, --- The Swanson Uranium As this proposa! illustrates, the industry is capable of dramatically reducing emissaans of radioactive materials (and Pro tect (Martine/Usetco. Pittsylvania, Virganialtthis document, denominated as Ezhabit 5-6, is being submitted under separate l

covert, Commission should require, as part of its technical criteria, that such techniques be used for construction of new tai!!ngs

                         . First, the licensee would und a belt filterang system to gg,,,

partially dewater the taalings. Second, the licensee would use a sophisticated form of staged disposa! in which three of the The question of when reclamation should commence at entstang impoundment *s four barns would be permanent while the fourth berm tailings piles is more difficult. As a first principle, the would intermittently advance as ta11&ngs are deposited. As that Commission should retterate that at all times emissions and , radiattom esposure must be reduced to as much below applicable j bara advances, the tailings would be continuously and rapidly t regulatory limits as is reasonably achievable. Second, the Cons-covered. The study's authors estimate that no more than ten issaon should require that !!censees take a!! available and acres of tastings would be esposed to the environment at any one tame. feasible steps to control and reduce emissions from uranium mill i tailings piles. The technical criteria should require that EPA revaewed this proposal, and that agency's conclusions

during operation, and during periods when the m111 is not dis-13 14 i

4 i

                                                                                                           -3 3 -

                                                                                              .                                                                    uucs4g musafn estamp autt PR-vo. g 0 4/8) char <lang tallings to the pale,  the Incensee either keep the tat!!ngs wet. or that. the lacensee insta!! an intera m cover to reduce both NNN          WMGMMM CWCL D A Md'a h8 b W h *88*****a      % u casa " t w  " Li4~ }}4 g                y-       se radon emissions as well as tan !!ngs dust arg. or began fana!                                  j tcstamatton.                                                                                                                                                                              ..

Fanally, control of radaologscal emassions into the atr s-ph re is directly related to preventaon of groundwater contamina-

                                                                                                 .._                     Secretary tion, since wettang of the tai!! age also wall maintain the hydro-                     * - * * * *

U.S. *3uclear Aegulatory Connession w- 1717 H 5treet, a.w.

logic head that w t!! ds two seepage of contaminants f rom the Washington. O.C. 20555 P.---*- :'. I impoundment. Therefore, the Commission's technical criterna Re: Docket No. PR-40 g

                                                                                                  .         w chould require that af a compliance monitoring program indicates

Dear Sir:

that ground water contamination is occuring, the licensee must The Environmental Defense Fund of Boulder Colorado asked us to

                                                                                           +      ;**.      .'7l-        foruard the enclosed materials for your inclusion la the adelaistrative either immediately begin reclamation of an existing ta!!!ngs pile                  ** ,- *jy,
                                                                                                    ,,                   record for the Consission's proposed rules to conform its uranium mill

. . tallings regulations to standards adopted by EPA (49fA46418).

it corrective action will prevent further ground water Z 7.* '"" a Thant you for assistance la this regard. contamination, or remove the tailings to a new. Lined disposal ** ,' L .

                                                                                                 ----                                                                 Stacerely.-

ispoundsent for f ana1 diepoea1. <g

                                                                                                    ....w.
                                                                                                       ..m.
                                                                                                            <-                                                        Georgia H. Herbert M:" '".*.-                                                           Staff Attorney
                                                                                                  ':1

_,

spectfull s irt-A __

                                                                                                 ",*.; g                 Get/dj WMY @m%

I

                                                                                                 . " 'l .C *

Enclosures:

e James S. Martin s .- 1. "The Swanson Uranlue Project

by Baker et als.

N eaff Attorney .

                                                                                                * ~ ' '

2. Escorpts from Martine/umetco TeChalCal Sususary and 1984

                                                                                                \.~*.~.~.*..*"."               Supplemeat*, August, 1964 l- W;-

3. Letter dated 12 April 1944 from Glen L. Sjontom to Mary R. Spain.

                                                                                                 "~%
                                       .                                                        0.** *. L*~~

cc: James Martin EDF.Soulder

                                                                                                       ~
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                                                                                                                                                                                                            ,l

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L 12 mT W l

                                                                                                                                                                           - by med._

15

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r.e-s.ar N r .-ea- < to cua a* . s ..

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me*l metenta W sult M T. WESTERN NUCLEAR. INC. d/6fd44/gf Criterion s

s a:. s ;.a .:

3 s . . e ... Tests *In selectang among alternative :aalings diaposat

                                         .-ex:; . ... : c u.

c > em t-sites or judgang ene adegaacy of esisting tas!!ngs s .a' ada sites, the following site features, watch wal.1 determine the estent to wnich a progree meets the broad objectave of isolat ang the tallings and rebruary 7, 1985 *3e ' associated contaminants from man and the environment for 4,000 years, thereafter, without ongoing acetve adatenance, shat! be considereds

                                                                                                                                                            - Hydrologic and other natural conditions as they Secretary, contribute   to continued imeobillaation and isolation of contestnants f rom groundwater sources."

U.S. Nuclear segulatory Commission Washington. 0.C. *20555 Comments in the first paragraph delete the phrases '...for ~ Attenticas Docketing and Service Branch 1,000 years..." and * ...without ongoing active maintenance....* RE: Comments Regarding NRC Ret tent Al though 4 0 Crk 2 6 4. l l t , which is included Proposed Rule (49 FR by aoference in to CFR 19 3.32, requ!res that for 46447)

                                                                                                                                                          ,nonradiological hazards the need for maintenance be minialaad, the EPA standard itself is silent on To whom It May Concerns                                                                                              salatenance for radiological hazard control measuree and could thusforallow maintanance               some limited     !!aited periods   ofre!!ance      on active time. The Please find attached the Western Nuclear, Inc. comments regarding the proposed regulations conforming NRC atll                                                                l,000-year period in the preferred alternattve fic licensing requirements to EPA's Active Site Radiological                                                            eaceeds the 100-year period the EPA views as standards (49 rederal Register 46487L                                                                                reasonable to rely on institutional controls to
                                                                                        ~

provide active mainterance. On this basis, the We appreclate the opportunity to comment. Should you NRC should not flatly prohlblt, in all cases, planned have any questions, please advise. reliance on active maintenance. Si erely, mal recommends in any NRC proposed changes regarding groundwater protection, the proposed rules be [_, Postponed until NRC has received comments from its

                                                                                           '}dP1                                                           ANFR regarding groundwater protection and other lasues as published in the rederal -fwaister on Grey Sogden                                                          Monday,taovember 26, 1984.        In ses AT4 ORC seeks input on how to best proceed to fulfill its
                                                                           ,          otractor of Environmental                                            responsibilities involving groundwater protection in
                                              .                                       6 Industria1 safety                                                  light of specific SWOA requirements. Comments f

generated by the ANPR will probably include the issue of protection of groundwaters. The subject of cca Larry boggs. AMC protection of

usable
groundwater as opposed to "all 1roundwater*

nJustry. to an area of great concern to the I

                                                                                       - h,                ....m.u       r   !

> r_ -

i . l l i ( l Cr a t e r s on 2 Criterton 1 a,c: i

                                                                                    =?o avond prolif er st ion of smatt waste tasposat sates               Tests       "The 'pc6me opcion' for disposat of taalangs as and enereby reduce perpetual survestlance                                           placement below grade, either in eines or s pe c s al l y octagassons, byproduss materlat from in satu estraction operations, sucn as resadues from sotation                               escavated pits (that is, where the need fgr any evaporatton or contamanated control processee, and                                  specially constructed retention structure is wastes from saa!! remote above ground estraction                                    ettainatedt.*

operations shall be disposed of at ents. tang large C meents mit t tellings disposal s 6 tes: unless constdering the The sentence grade disposalhas no ef as the fect otr.or

                                                                                                                                                                                                ' prime        than to label below-option.*

nature of the wastes, such as their volume and Thia is specific activity, and the costs and enwtronmental misleading and confusing in tnat it glees the impacts of transporting the wastes to a large tapression that above-grade disposa! could not be 44sposal site, suca es of f site disposat is approved. Under the longevity standard of 40 CFR demonstrated to be impracticable or the advantages of Part 192, it is durability rather than disposat mode onsite burial clearly outweigh the benefits of which determines acceptability, reducing the perpetual surve111ance obligations.. Test "The evaluation of alternative sites and disposal Comment WWI endortes NaC Criterion 2. methods performed by sitt operators in support of their proposed ta11&ngs disposal program iprovided in applicants' environmental reportsi sha!! ceflect serious consideration of this disposal mode. In some instances, below-grade disposal may not be the most environmentally sound approach, such as might be the case if a groundwater formation is relatively close to the surface or not very went isolated by overtytag sotts and rock. Also, geologic and topographic conditione might make full below-grade bu"141 tapracticables for esemple, bedrock may Le suf ficiently near the surface that blasting sound be

                                                                                                                                                       ,             required to escavate a disposal pit at ascessive l

costs, and more suitable alternative sites are not available.* i Comment "* Modify the second sentence wnere 6E reads,

                                                                                                                                                                 '   *  ... consideration of this 'isposal mode

to read,

                                                                                                                                                                        . .. consideration of the be ow-grade diaposal mode.*

Although the requirement to consider below-grade disposal was previounty suspended along with the rest of Criterton 3, a requirement for consideration only la not inconsistent with EPA's 40 CFR Part 19 2 a nd Western Nuclear, Inc. believes it should remain. Delete the third and fourth sentences in their entirety, beginning with *In some instances,

and ending with *. .. are not available." ...

i The sentences are esplanatory in nature and do not

  ;                                                                                                                                                                 property reflect consideration of EPA's new requirements, especaally for grounduater protection.

for this reason they are potentially misleading and confusing. 4 -3 6 -

                                                                                                                                                                                                               ~ ~ '

critetton 3 - continued Cratorion 4 Tests *!n tasse cases, it must be demonstrated snat an Tes*: above-grade disposal program wtt! provsde reasonably *

                                                                                                                                                        "The following site and desagn ritec t s anatt se equivalent isolation of the tatlings f rom naturat                                              adhered to whether tall,ings or dastes are disposed of erosional forces.*                                                                              above- or below-grade.

Csament: The sentence places a generte burden-of-proof (a) 83p s t re am rainfa!! catchment areas must be requirement on above-grade disposal which is at odds minimited to decrease erosion potential and tne size with the acceptability standards established by EPA's

of theout Probable Masinue Flood watch could erode or requarement for longevity of control in 40 CFR wasa sections of the tai!!ngs disposal area, IS2.32(bl.

Ibn Topographic f eatures should provide good wind protection. (c) Embankment and cover slopes shall be relatively flat afterand potential finaltostantilaation to minimize provide conservative erosion factors of safety assuring long-term stability. The broad objective should be to contour final slopes to grades which are as close as~possible to those which would bee provided if tailings were disposed of below-grader this could, for esemple, lead to slopes about 10 hortaontal to i vertical llehelvl, or less, steep. In

general, Shilv.

slopes should not be steeper than about Where steeper slopes are proposed, reasons why a slope toss steep than Shale would be impracticable should be provided, and compensating f actors and conditions Identified. which make sach slopes acceptaole snould be (d) A full self-sustained vegetative cover shall be established or rock cover employed to reduce wind and water eroston to negligible levels. Where a full vegetative cover is not itkely to be self-sustatning due to climatic or other conditions,

such as in semi-arid and arid regions, rock cover sha!! be employed on slopes of the impoundment system.

The utC will consider relasing this requirement for entremely gentle slopes such as those which may esist on the top of the pile. The following f actors sha!! be considered &n establishing the final rock cover design to avoid displacement of rock particles or human and animal traffic or by natural process, and to preclude undercutting and pipings . s 1 1 -1, 7 -

     '~          '
                    'M                                                                                                                                                     - -           -~ , .
                                                                                                                                                                                    .n                                 ,. . . . . . .

Or's t'e r s on 4 Icantanued) Orlter80n 4 (continuedt e shape, size, compost ton. and gradatson of (f) The impoundment, where feasible, should e rock particles desceptang bedding matarsal, destqned to incorporate f eatures watch wa t t proacte average particles saae shat! be at least deposition. For esemple, design features watch cobble size or greaterls promote deposition of sediment suspended an any e Rock cover thicaness and sonsm3 of particles runoff wMtch flows into the impoundoent area meget by esses and be utiliseds the object of such a desage feature e Steepness of underlying slopes. would time.* be to enhance the thickness of cover over Individual rock fragments shall be dense, sound. . Comment and cessstant to abraston, and shall be free from Mandatory design criteria, as proposed by NRC in cracas, seams, and other defects that would tend to Centation 4, are ne6ther practical not cost unduty nncrease their destruction by water and effecttwo. frost actaons. Weak, friable, or laminated aggregate shall not be used. Critetton 4 sets forth s&s requirements that "shall be adhered to* If tal!!ngs are disposed of Rock covering of slopes may not be required where abov e-g rou nd. While some of these optaons may be top covers ase very thick (on the order of 10e or appropriate for certa!* mills, they clearly would greaterns impounJoent slopes are very gentle (on not all be applicable entwersa!!y. The criterion the order of Ichs tw or lessla bulk cover materiala should reflect that only the optsons necesary to have inherently fewerable eroelon resistance meet umC closure goals specified in Criterion 6 characteristicas and there la negitgible drainage sha!! be adhered to. ca tc hmen t area upstrees of the pile and good wind protection as described in points (at and (bl of rurther, certain of the optione are too specific this Cratorion, and would tend to preclude industry from developing other more ef f ective approaches as technological rurtnermore, att impoundment surfaces shall be savances are developed, e.g., the requirement for a I contoured to avo64 areas of concentrated surface self-sustatning vegetative cover or riprap. runoff or abrupt or sharp changes in slope Another option should be added which would a!!ow a gradient. In addition to rock cover on slopes. * , license applicant to ut!!!ae any other techniques areas toward which surface runoff eight be directed or methods which met NAC's closure goals. shat! be well protected with substantial rock cover grip repl. In addition to providing for stabt!1ty Listed below are specific comments and recommanded changes to the criterions of the topoundment system itself, overall stability, erosion potens tal, and geomorphology of surrounding terrann shall be evaluated to assure tal Revtse the first sentence, la its entirety, that there are not ongotag or potential processes, to read *To the estent necessary to meet the such as go!!y erosion, which would lead to closure requirements in Critet ton 6, the applicant tapoundsent instability. or !!censee shall adhere to the following site and deelga criteria * (el The impoundment shall not be located neat a capaole fault that could cause e assieue credible Re ason s The revision clarifies that the earthquake larger than that which the impoundsent remainder of Criterion 4 applies only to the estent would reasonably be espected to withstand. As used necessary to adhere to the Criterion 6 closure in this criterion, the term

capable fault
has the standards, which are proposed for sawlsion in these same meaning as defined in section Illigt of comments longevity oftocontrolreflect the andnew EPA redon standards for release Appendte A of IO CrR 300. The tera *manimum credible earthquake
means the earthquake which limitations.

{would) latc) cause the manimum vibratory ground ' motion based upon an evaluation of earthquake potent tal consider &ng the regional and local geology and setseology and specific characteristics of losal subsurf ace material. - i

Ort ernon 4 (continued) Craterton 4 (continuedi Ibl aevise paragrapa tal by replicang "mansassed* (fl amplace paragrapn (el as paragrapn (be. wata "sufficientif small,* deleting *aassaum

posssble." and addang at the end *. . . so as to hessons for editorial consistency.

provade reasonable assurance of meeting the longevaty standard in Criterson 6.* (g) Delete the first sentence of paragrapn (ct, beginning *4 full sel f-sust atning vegetative.. .* and Aeasons The changes revise and clat t f y the ending *. ..to negi t g tble levels.* restr actions placed on the upstrees catchment area so se to be consistent with the ERA longevity Beesons The first sentence sandates a rock or standard now reflected in proposed Criterson 6. vegetative cover to reduce erosion, rurther language outlines possible esceptions but the standard La Ecl De!'ete paragraph tbl in its entirety. established by the first sentenCG. WhIle a rock cover or vegetative cover is a very effective way to acasons it may not be necessary for topographic meet the EPA standard, it may not be the only way to features to provide good wind protection in order meet the 5000-year ef fective design objective. to meet the EP4 tongevity standard. For example, engineering methods (e.g. rock armoring) should be wu! believes this and sistlar language abould be able to provide suf ficient wind protection to meet deleted 30 as to provide meslaus flesibt!!ty to al1% tne EPA des &qn standard of 5000 years of ef fectiv1 control. operators standard. in devising plans to meet the EPA longevity idl In the first sentence of paragraph (c), elete (h) Delete the second and third sentences of the parase *...be relatively flat af ter final paragraph (c) beginning with *Where a full...* end scantilaation es...* to manimise erosion Potential and ending with *...ptte." Reasons See (d) and (g) above. acasons The 1000-year design lifetime in the EPA longeotty standard might be met by engineering or ggg gn the fourth sentence of paragraph (di other methods rather than *relatively flat

beginning *The following factors..." replace the

       -                            features, and it may not be necessary to *mtalaise                         worde *the final

in the phrase *. . .in establishing erosion potential. It may be acceptable under the the final rock cover. . .* with *any."*

EPA standard, and more practicable, to apply a relatively more erostve but thicker cover. geasons See (g) above. hock covering is not flatly required. The words "the final" are modified to (el Delete the remainder of paragraph (c) clattfy this ettuation. beginning with *The broad objective..." and ending with *.. 6dentified." g jl gn the first Itsted item in paragraph (d), delete the parenthetical phrase *descepting bedding seasons The deleted language is misleading and at material average particles stae spelt be at least i odds with the EPA longevity standard. Under the EPA cobble site or greaterl.* ' requirement, acceptab&lity is a function of overall du. ability rather than specific design features. beasons The phrase specifies technical requirements Also, the language is unnecessary in view of the or rock else that may not be necessary to meet the proposed retainment of elements of Celterton 3 EPA design objective. This change will allow

 -                                  requiring that steepness of slopes be m&ntataed to                         flestbt!!ty to use whatever stae rock meets the EPA the mastnam estent reasonably achievable.                                  standard.

(kl Delete in its entirety the fourth paragraph of paragraph (di beginning with *tadividual rock

Centerson 4 (continuedl Craterton 4 scontinued) . fragsents small...* and end; q wa-4 *. .saal* used.* ot ce Crtterton 4--T3 Ene estent necessary to meet :e closure. requirements in Critetton 4, toe apptseant or meason: The fourth paragraph specifies technical licenses saali adhere to the folloutng ette and destge criterias requarements on roca propertnes that may act be necessary to meet the EPA desagn ooject two. The change retains flesibility to accept greater (al Upstream rainfall catchment areas must ce quantities of lesser quality rock, or other designs suf ficiently small to decrease erosion potestaat and in keeping with the EPA longevity standard. tne size ofofthe sections theflood which tailings could erode disposal or wasm area ao as to out all Delete the fifth paragraph of paragraoh idt in provide reasonable assurance of meeting the longevatf its ent arety, beginning with

hock coveramg..." and standard in Criterion 6.

ending with *...of this Criterion." Ibl tabankment and cover slopes shall provide peason: The listing of requirements needed to conservative stability, factors of safety assuring long tera support a justification for not using a rock cover is at odds with the form of the EPA longevity standard. (cl The following factors shall be considered in ist Delete the first sentence of the last parag aph estab11shing any rock oover design to avoid of paragraph (dl beglaning "Furthermore, a!! displacement of rock particles by human and animal lapoundment s. . .* and end ing *. . .s tope g rad ient.* traffic by natural processes, and to preclude undercutting and pipings measons While contouring to miniette concentrated e Shape, else, composition and gradation of rock surf ace runof f or sharp changes in flow w111 enhance particlass long-term staoility, such contouring to totally avoid prooten areas may not 6e required in all cases by the e EPA design lifetime standard of 1,000 years to the hock cover thickness and soning of particles by staes and extent practicable and 200 years in any case. (nl In the second sentence of the last paragraph of e Steepness of underlying slopes. paragraph (d) delete *ta addition to rock cover on slopes..." and *... with substantial rock cover (rip Areas toward which surface runof f might be directed shall be wo!! protected. In addition to providing rapt.* Replace

areas toward* with
Areas toward.* for stability of the impoundment system itsett, seasons See (g ) above. overall stability, erosion potential, and

                                                  -                                                  geomorPhotogy of surrounding terr ain shall be gon Replace paragrapas id t, tel, and (f t , as (c),                                 evaluated to assure that there are not ongoing or Idl, and (el respectively.                                                               Potential processes, such as qu!!y erosion, whica would lead to impoundsent instability.

season For editorial consistency. (d) The impoundsen t sha11 not be located neac a With incorporation of the above recommended capaote fault that could cause a masamus credible changes, Critet ton 4 should be revised as fo!! owes earthquake larger than that wh!Ch the impoundsent could reasonably be espected to withstand. As used in this critecton, the ters

capable fault
has the same meaning as defined in SIII(g) of Appendas A of 10 Cta Port 800. The tera *mastaua crediole earthquate* means that earthquake which would cause the easteue vibratory ground motion based upon an

                     ,                                                                               evaluation of earthquake potential considertng the regional and local geology and seismology and specific character estics of local subsurf ace material.
                                                                            -vo-

Craterten 4 Econtinued) C'It*'I"" I tel the napoundmen , wnere feastble, abould be On page 46430 149 Federal peqister) under Items *Pt os tous Actions" destqned to incorporate featares watch promote and

Scope of This Proposal," NRC stated:

deposation. For esemple, des 4gn f eatures whtch promote deposition of sedament saspended en anY Tests 'The final EPA standards are very statter to those runott which flows into the topoundment area might ce that were proposed. Nevertheless, the Commisston has utillaeds the onject of such a design featare would reconsidered the appropriateness of changes to be to enhance the thickness of cover over time. Appendia A to le CFR Part 40 in !!ght of the new EPA standards, and the need for additional supporting

                                                                                                                  '                 d oc umen t a t ion. The cnanges proposed tooay are more modest than the prewtous suspenaton. (Emphasis supp!!ed.)

Scope of This Proposal In addition to conforming its esisting regulations to new EPA standards, under the prowlsions of the UnfaCA, the Commission has a further legislated responsibilitys it must establish gene -l requirements, for the management or Dvproduct material, wata EPA concurrence, watch are. to the masteue essent practicante, at least comoarante to requtrements appt acaote to the management or staalar hasardous eaternet regulated by tne EPA under Ene solad waste Disposat Act ( 5 WDA l , as amendea. The comma ss aan del anerates as to now cast to deal wata anese reaated rulesan tne needs and dectaed on cae ~ course or action resultang in s na s proposal ano sne acceeganytag AWPRR. Thas proposal adoresses all tne caanges to tne estating Commission regulations in Appendia A to le CFR Part 40 that can be legallw promulgated without additaonal supoortaaq documen t a t son. Otner cnanges to tne Comaassion's regulations for a!!! tallings management resulting from the EPA standard are the subject of the

                                                                                         .                                          accompanytag ANPan." (Emphasis supplied. )

Comments WRC completely disregarded its position outlined above for its ANFRM by moving forward and making the following changes in Criterion 5. Te s t s *(al In the first paragraph, delete the first two sentences beginning ' Steps tha!! he taken* **' and ending ' potential uses. ' and the phr ase'** *in order to accomp!!sh this objective.' (n the third sentence.' Comments WHI recommends MRC withhold the proposed changes until comments on the ANPRM have been received and reviewed. The proposed changes soggested by MRC are definitely

closure standards" at there is no

                                                                                                             -V/-

Criterion 5 *ccatinuedl C'ItL88 4 d t st anction between

Jaable" and "non usaste Tests "In cases where dpste byproduct sacertal is to be aquaters.* If the "no-de gr ad a t ion standar$* ts implemented not allowing restoration of groundwater permanenti/ disposed, an earthen cover shall be to its potential use before ettling operations began, placed over tallings or wastes at the end gf to the masimum essent practicante.* st valt ne n!!! tag operations and the waste disposal area estremely dif ficult .lf not topoestate, to maintain shall be closed in accordance with a design whic3 the esisting industry. shall provide reasonable assurance of control of radiological hasards tos (il se ef fective for 1.000 years, to the estent reasonably achievante, and, in any case, for at least 200 years, and till Limit releases of radon-222 from thort ue byproduct materials to the atmosphere so as to not escoed an average release rate of 20 p meter per second (pct /s2.sg..icocurtes per square Comments Although, under the EPA standard, the thickness of cover le a function of both longevity and redon release, WN! onjects to a final radon-222 release rate of 20 picocurtes per square meter per second on the basis the projected benefits, it any, of such a performance standard are f ar outweighed by the costs.

Tests

                                                                                  -~~
                                                                                           *Near surface cover materials (i.e., within the top three meteral shall not include waste or rock that contains elevated levels of radiums sotts used for near surf ace cover must be essentially the same, as f ar as radioactivity is concerned, as that of surrounding surface sotts. This is to ensure that surface redon enhalation is not significantly above
                                                                    .                     bachground because of the cover esterial itself.*

Comments Delete the second to last and last sentences, beginning with "mear surface cover materials.. ." and ending with *... cover material itself.* Reasons EPA standards for post-closure environmental protection do not provide for, or characterise, the cover material in terms of radioactivity. but only in terme of durability and capacity to reduce redon release from the tallings. nowever, the EPA standard does indicate in a footnote that the characteristics of the cover' material abould be considered on a site-specific basis. I

                                                                         -V2-

Craterson y Celterton s Test "At least one f all year pr aor to any ma jor atte Test: "Dursng operations and praor to closure, radiation construction, a preoperattonal monatorang prograo doses from radon eatselone from surface impoundsents small be conducted to provide complate baset tne data of uranium or thortua byprodut materials shall be on a attling site and its environs. Througnout the kept as low as is practicaote.* constraction and operating phase of the at ti, an operat6onal monitoring program shall be conducted to CO**ent Wut has no objection to the additional wording. measure or evaluate compliance with applicable standards and regulationes to evaluate performance of Tests

Checks shall be made and logged hourly of at t control systems and proceduress to evaluate Parameters (e.g., dif ferentist pressures and scrubber environmental impacts of operations and to detect water flow ratest which determine the ef ficiency of potential long-term e f fects.* yellawcake stack emission control egulpment opera tion.

comment: WN! endorses WRC Critecton 7. Comments WN! suggests the following wording to maintain effielency of operations where instrumentation is in use. *A11 parameters (e.g., dif ferential prqssure I and scrubber water flow ratest which determine the ef ficiency of yettowcake stack estos ton control equipment operation shall be monitored at least hourly by recording and controtting equipment which either provides an alare in the event such parameters are outside of a nostaat range for eff&ctent operation or is manually checked and logged on an hourly basis.* Tests *All such cessations, corrective actions, and restarts shall be reported to the appropriate waC regional of fice as indicated in Cr nter ton SA, in writing, within le days of the subsequent restart." Comments This criterion requires reporting within 50 days to

                                 ,                                                               the MAC Regional of fie *a11 such cessations (of operations shut-downs due to of f-normal performance),

correct!we actions, and restarts.* Wut be!! aves

                                                      ~                                         unless there was an unusual event involving a        .

potentially significant hasard to public health and safety (see le CFR 28), it would be sufflctent only to document such 8tems and maintain the report on f ate for review by unc during normat inspections. Tests *ML11&ng operatione producing or involving thorium byproduct material shall be conducted in such a manner as to provide reasonable assurance that the annual dose equivalent does not escoed 25 mitltress to the whole body, 75 at!! trees to the thyrold, and

 .                                                                                               25 malltreme to any other organ of any member of the public as a reestt of esposures to the planned discharge of radioactive materials, radon-220 and,4ts daughters excepted, to the general enwitonment.
                                                                          - f3 -

d Criterson a sconcinueta Cratorion SA 1 uranaus and thorium byproduct materlats at:all be Tests

Daily inspections of tastings or unsta recentaon managed so as to conform to the apolacable proutstons erstems saalt be conducted by a qualatted enganeer or of 440 Title to of the Code of redera! Segulations. Part scientist and documented *

                              *0ce Minang and Dressang Point Source Category:

E* fluent L&attattoes Guldelines and Neu Soarce Comments West does not believe it is necessary to require that rectormaece standande. Subpart C, uranaus. Aadtue, ta !!n e or uaste retention SysteSe be Anspecte'3 and vanadium Oree Subcategory.' as codit ted sn - deity by *a quattried engineer or scientist" and such January B, 1983. uording he deleted. Daily surveillance is the critical aspect et inspection by a qua!8tted comments inst has no consents to the additional provisions. individual and not that the individual be an engineer or scientist. 3 e - 4 4 o O f-T 9 *

                        /                    ,

r 9 f a 1

                                                                                ~ M-0

a

                                                                                             ,                                                            e Criterton 9                                                                                  Craterson 9 8 continued)

Wut proposes the following rests ton to Cr aterson 9: to oerform the decometssionano ar.d reclamatton work.

Financaal surety arrangements shall be estaotished yhe amount of eurety Itabality saw increase or by each salt operator to assure that sufficsont fands decrease at the time of Itcense renewaI in accordance with

  -                                                   will be avaalable to carry out the decontaminat&on and                             the predicted cost or reture reclamatten, or may reeaan decommassiontng of the sis t and site and for the                                  static deoending upon tne licensee's projecteJ net worth.

rectasation of any tallings or waste disposal areas. A Factors affectang reclamation cost settaates Includes attl ooerator may subett a combination of financial inflation, increases in the amount of disturbad land, and surety arranaesents whaca. taken t og e t n e r . wall assure decommissioning and recteestion that has been performed. tuat suttacaent funos wali ne availaote. The amount of This will ylend a surety that is at least sufficient at funds 40 be ensured by suca surety arrangements shall be a!! times to cover the costs of decommissioning and based on cost estimates in an approved plan for (Il reclamation of the areas that are espected to be disturbed decontaminet ton and decommissioning of sit t butidings before the nest license renewal. The term of the surety and the milling site to levels which would at tow, to the sechanise shall remala in effect until the reclamation estent reaso.zably practicable, unteettleted use of these progree has been completed and approved, or until such areas upon'Jecommass aaning, and (24 the recleastion of time as title to the site is transferred to the tallings and/or waste dispoest areas in accordance with governmental agency respons tole for lono-term tecnnical criteria dettneated in Section I of this ourweallance, unschever comes first. Financial surety appendia, less the projected net worth. ictudino assets arrangements generally acceptacle to the Commission area which may Ee taquaoated. at the lacensee at tne time of suca decontastnacton, decommassionano, or reclamation. a. Surety bonde ] should tne I tcensee have sold uranaue to the Un a ted - b. Self-insurance states prior to 1973, ene amount at surety required .c. Guarantee by a state goverpmental agency, a under ena s cr a ter ton shall be estantasned on a oro rata local governmental agency, or by a third party which basas suca taat the lacensee want turntsa surety only could qualify for Self-ineurance as specified in b. for enat por t aan or cne cos t escamates an ene accrowed d. Cash deposits plan watca are attraoutaose to ocaer taan suen sales. e. Certificates of Deposit The Lacensee sna41 suneat taas plan an conjunctaon with f. Deposits of government securities an onwtroamental report f i t an environmental isomet g. Letters or lines of credit stateerst is not requiredt that adoresses Lae espected h. Continations of the above or such other envaroasentat aspects et the allting operation, types of arrangements de eay be approved by the NDC. decomen s sioning, and tatlings reclamation, and evaluates _ alternatives for mitigating these impacts. The surety shall cover the perment of the one-time charge f or tong-tera surveitlance required Ey CTtterton 10. In

!                                                    establishing specific surety arrangements, the licensee's cost estimates shall take into account total 4

capital costs that would be tacurred if an independent contractor were hired to perform the decommissioning and reclamation work but escluding costs which are attributable to interim decomenssionang and reclamation wors per formed by a lacensee durang malling operations.' In oroer to avoid unnecessar y dupt acat aan and e:6 ense, i the Commission will accept financial surettee that have

   '                                                 been consolidated with financial or surety arrangements established to meet requirements of other Federal or state agencies and/or local governing bodies for such decommissioning, decontamination, reclamation, and long-term site surveillance. The Itcensee's surety mechanism w111 be restewed from Else to time by the commission (generally at the time of license renewall to assure sufficient funds for completion of the reclamation plan if an independent contractor were hired
                                                                                                                        -ye

l Criterion eo e

                                                                                                             ', 4. -"              ,[ e,.                                                  g,'*g .*=}, Tut                   '.g. Q         G .Jf.,"' STATIS.                                                    .,,/*l'f,ig.

k *. j

g/.~g'aBEFOsts *lAt!TEIL

WNI proposes the fo!!owing Changes to Cr aterton 10s .. 0'M ;drhg .a t%,,F h TM3 ~ saw r na ..ars ;sr aTner .COcet135 TON - 4e- f h one-time c34sge of 5250.000 to cover the costs of long-tera survestlance shall be paid by each atti operator

                                                                                                                           ~~* .. c(... . -ig. t,w!h *._b
                                                                                                                                                           * * :v.

b '.*; . JsM.p-'.*.Y. g

                                                                                                                                                                                                                                                .  .D.    *-                               S*as*re 7 to the general treasury of the IJatted States or to an                       d -attysf > ; ggt . f. P. C {7,ty.;,,.Jg'. *-N. $' ry ".y*                                                                                                                                            . . . .

appropriate State agency pr tor to the terminat ton of a ' 'Ma .k e GD'8' ' MF*'

                                                                                                                                                                                                                                  ..           ~.         .    *WM . {.. .

urankun or thortum mitt license. If site surventlance D - M .* * ' ,6 I'. M .:* '6 A * *"6;g; 3."Jg' *

                                                                                                            '# ' f' 'tM
                                                                                                                  "~ .'-[,3M:~RENEATItS4SN                                                                                                                                     E24*7t;"g.Y requiresents at a particular site are detersaned, on'the                                                          8II " "I U C **'**                                                                         -
                                                                                                                                                                                                                                                                                               ^~
                                                                                                                                                                                                                                                                                                                                                "b baste et a sate-spectile evaluation, to be significantly greater or less than those specified in Critetton 82
                                                                                                            . --2.N a
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                                                                                                                                         .A   NMDEH .CaNIWl. j%, A h-L d it4 C Ws IT"'"I' T O 3 To L'-j mer(
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                                                                                                                                                                                                                                                                                                                                                   ~~
                                                                                                                                                                                                            ".f* 4L.I.'N                  ek %"'f[9                                      . e, I.

wartance .n funding requirements shall be specified by the * *

                                                                                                                                                                        ' D*h.kM.f*                                          .
                                                                                                                                                                                                                                                                                                                                  !.. 8 M -
                                                                                                                   .                   . L" 2 4 'b' -                                   'I        '

I. *.M** ~d 4.e Commission or other licensing authority. The total charge ! '-d 2.W*M '**k /. .3 M D,5 i~.* ,. D'.,{M{ to cover the costs of long-term surveillance shall be such . "[~g . Q.h h# - P.;" is

                                                                                                                                                                                                    ' e-     ~t sl .t I
                                                                                                                                                                                                            **. ,5 V' %3Ml
                                                                                                                                                                                               $. BO13Mfk' hb.$*.h/ed" #,k*M' C' t.tDW* "

h"??** *; ;"* dM that, with an assumed I percent annual rest interest rata, O the collected funds wa!! yield interest in an amount .M 70aATrost4 . 'L setticient to cover the annual costs of site surve111ance. I .--

                                                                                                          *,q '. [.I  '-

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l h,RE34-McCEE.

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                                                                                                                                                                                                                                                                                                                           ,M This surves!!ance and control charge shall not be        I :,- {.,'                                                           %*g                     '**

rf y'r*t Y . *vs

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i required in cases where the State in e.htch the operators 58' i

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a 2 EETORE THE L';;!I3 STATI5 affect NGC*.EAA 3E;U". A: CAY CCF?t:55iCN activities at bo:a the A hrasta Laae and West Ot::a;a fact 1*:tes. I URANit't MILL TAILI'IG ) 500FE OF U!$E CCM!!N 3 EEOULAO:ON5 r C0tlTCE;4*NG ) PROPOSED AME::::MENTS To NKC RE ULAO ONS To !?A ) 10 C.T.A. Far: 40 *'he promulgatica of requiations applicable :s STA;OARC5

                                                                                                                  )
                                                                                                                  )                                                     disposition of uranium aalings and associated wastes at licensed commercial processing sites uccer the Uranius Ma tt CotStEtr!S BY KI2R-i:cCEE CC2PORATION,                                                                                                               ~

KI3R-McCEI CHI 11 CAL CORFCRATION, MO CUtVIRA M!N!NG CCM?UfY sive previous ad:ainistrative ac: ton. 7m previous rulemaking proceedings, one by NRC and one by the Environmental Protec. These comments address the amendments to the " Criteria tion Agency (" EPA"), have been completed at the administrative Relating to the Operation of Urantu:a Hills and :.he Disposition level

and are currently undergoing judicial review in the of Tallings or Wastes Produced by the Ea:: action or Concentra-United States Caurt of Appeals far the Tenth C1 cuit.a Kerr-tion of Source Material from Ores Processed Frt:ar:17 for McGee has suba10:ed a fall set of commente concerning -hose

                                 *het: Source Material Content." 10 C.F.A. Part 40, App. A, regulations to both the NRC and the EPA and is a party to the proposed by the Nucles: Regulatory Commission ("NBC") at 49 judicial review proceeding with regard :s the NRC rc'iteria.

Ted. Reg. 45418 e_3 seg. (November 26, 1984). These comments

In addition, Kerr-McGee submitted comments in connec: ton w1th are submitted on behalf of Kerr-McGee Corporation and its the NRC's suspens1cn of portions of the c 1:eria.

subsidiaries Kerr-Mc0ee Chemical Corpora:1on and Quivtra Kerr-McCae believes that its previously mutuat tted Mining Company. comments concerning the EPA standards and NAC criteria were Quivtra Mining Company owcs and operates mines and a and continue to be valid and vill not repeat those arguments uranium mill at Amorosia Lake, New Mestco. Ker==McGee Chemi-cal Corporation owns a forser thorium and rare earths proces.

The NRC regulations to which the current proposed amend-sing facility in West Chicago, !!!! nots. A final closure plan ments are addressed vers promulgated in Octsber 1980. The final EPA regulations, found at 40 C.I.A. Part 192, we:e for that f acility is currently under consideration by the NRC. promulgated on October 7, 1983.

e The NRC Criteria in Appendia A to 10 C.T.3. Part 40, an:1 the American Mining Congress v. Nucteer Reg 21 story Coc. mis-ston, No. 80-2271 by); American Mining(10th Cir.) (pending Congress before the csur e3

v. Environmental anendments now proposad ta those criteria. if adopted, would Agency, No. 83-2226 Protec:1on and consolidated cases (10th C1 .).

                                                                                                                                                                -v7-

                                                                               . 3                                                                           4 here.'   !.a:ner. -hase ::nne r.: s are dire :a scie;y a:: ;;)                 e EPA standards and the '983 ~&tC M arendrecta.        he *st:s

he pr:pcsed saan;es . the c ::erta .c;:h purpart :: en!::= require MAC ta reeva bate 1:9 pr2posal to ensu ,, g;g ;g, the cr: er:a :s ne E7A staccards at subpe::s 3 and I of 40 e c teria addreas signiftsant risks and tha: the casca af C.T.R. Far: 192; (2) aeditional changes that Eer -McGee a cri eria bear a reasonable reta:ionship 23 that: heneft:e me;teves shcuid :s nade :a confors the criter:a ta the EPA ( ) that the criteria pravide suffi:1e : fissibility to standards; act (3) addi:1onal changes : hat Kerr-McGee believes address the par:1cutar characteristics and needs of each V

are necessary in the c :teria as a result of events. including ual sites and (3) that the " criteria dist:nguish bat.een the enactnant of amendnents ta the relevant federal statutes. new and existing sites, in recognition of the greater dif-that have oc:urred san:e the original criteria were promut. 1 Cutty of accomodating new rules at esisting sites. , gated. for the purposes of these cecaents, therefore, it is Although EPA's 20 pC1/m's radon flus standard is assuned that NRC is bound to adopt regula'tions that conform to bitrary and capet:tous, Ear -McGee supports the method that the EPA a:acdards, even though Ear -McGee cettevee that .the . C !s proposing for incorporating that standard in the c:ur will ultina:ely racate p.one standards.* ## t*' " ** "***I Y ' #** he limited d*18Clon of the 3-meter cover requi:e.

                                                                                                                         **nt f ocus of these c rsects does not cons:1:ute a waiver or                            in favor of a design goal related to radon control. A ncdificat :n of Kerr-McGee's previously expressed views as to the underty:ng invalidity of the EPA standards and the NRC                  substantial revision of many of the detailed requirements af criteria.                                                                   the criteria. including, for example, the requirements relating g

to tielow-grade disposal, siting, end erosion controls. SUWRY Eerr-McGee also advoca:ee that NRC adopt a cautious policy Taken as a wnote, the proposed anecdsents do co: 90 toward the adoption at this t!se of rigid repirements rotating far enough in c:cfarning the criter:a ta the :equirements of to groundwater protectiosa, because NRC to currently in the a process of conducting a total reevaluation of that area. We do request, however, that the comments submitted by Kerr-McGee concerning the EPA standards be made part of the in short, as demonet:sted in both the discussion of record in this rulemaking. These csaments provide a techn: cal and legal backd::p against wht:h to judge the adequacy of the generic and par:1cular defects, the current MRC proposal .ioes NEC criteria. A : py of the cccuments is attached.

not go tearly f ar encugh in revising the c::: aria to add:sse When the cour ac:s. changes will of cou:se be required 1.. .he NAC cri:ar a. the requirements of the IAfT3CA amendments. *cdeed many aspects of the propose! actually confile: with the statute.

                                                                       ~ ..

g . - . . n .. ...n .

                                                     . 5-                                                                                      -&-

the E?A sta==ards. ar toth. A :: fingif. Kar ->*:*,ee *. ;es ne ruisnak ng results ft:m a spe *ft: f*:se:ica by the C ngress NEC to undertake substan a1 revisscn of the critett a :' ef:re : a : e RC promulgate revist:ns. NAC Auth:rt:a:1:r. Ac . final promulgat on. I lata). Moreover. the Ccng:ses spec f t: ally amended Secti:n 84(a)(1) of the Atomic Energy Act to require the MAC. in CO?a?!M*S f;12:111ag its management respcastbility for tatlings, :ss hese c caents estabitsh that substantial revist:r.

                                                                                                                         *:aklel into account the risk to the public is required in the NRC criteria.       In Part I of these csanents                                  health, safety, and .he environment, with due consideration of the econoolc costs and such we discuss certain generic defects of the NRC proposal. In                                           other  factors as the Coenission determines to be appropriate.*

Part II, we turn to specafic criterton-by-criterton ccaments, 1d. I 22(a), 96 Stat. at 2080. his amendment of the taiTRCA

                          !. TME NBC CalTERIA 'fUsT SE suasTANTIAt.1,Y aE'stsg3,                         requiree NRC o revise the criteria to serve two purposes.

In Kerr-McGee's view, the NRC criteria must be

substantially revased as a result of events that have occurred * * * * "

since the cri:eria were ft:st promulgated. Subs'equent actions

was antanded to assure that the c=1:eria would be revised so by the Cangress have taposed requaraonnts on NEC that the as *3 address octy significant risks.'

Second, the requirement slight modifications now proposed do not satisfy. A. The 1983 Amendments To The IMf3CA Bequire The Congressional purpose is revealed in the follownr.g That The C:1teria 3e Sevised so As To colloquy between Senator Waticp and Senator Stepson: Address Only Significan: Risks And To Estan11sh A Reasonable Relationship of =Mr. WALIAP. . . It is my understanding that Costs And Senefits. EPA and NRC have stated that they felt compelled by the Mill Ta111 age Act to tapose The criteria as originally promulgated by NRC were stringent requirements . . . 1 respective of costs, because of language in the preamble :o inconsistent with the EMIRCA and were unduly strangent and the 1978 Mill Tattleg Act. From my reading of the applicable provision, the 1978 ac: burdensome. As a result, Congress suspended the enforcement directed the agencies to take 'every reason-able effort' necessary to protect pubite of the NRC criteria on two occasions.' Indeed, the instant health. Imp 11 cit in that language is a direc 1on to esercise leicl Have the amendment reasonable dispelleddiscretion. the misapprehension of the agencies on this Energy and Water Development Appropriation Act, P.L. . Point? 97-48, Tit. IV, 95 Stat. 1135, 1147 (1981); NAC Authcrization Act for fiscal years 1982 and 1983, P.L. 97-415, i 18(a), 96 "Mr. SIMPSON. I say . . . that, in my best Stat. 2067, 2077-78 (1983) (hereinaf ter "NRC Authort:ation estimate, they have. . . The acencies ACt*). (footnote coct'd)

                                                                                                 -W9-

3

ha: the ::RC g: te *d.e ::ns;dera ;sa sf :ne ec:nsn:c ::sta* essent:n* underpinnings far a sensable requia:ary pr:q;am . ore was in: ended to assure sua: :he c:sts of the criteria uid satisfied. As a:a:ed by Sena:s Sinpaons bear a :sseocacLa relat cnship to their =enefits., Indeed. *(Tlhere is substan:tal technical disagree-zent Cong s s a. a suspens;on o., .... e c..

                                       ... .sria an4 ."..ec.* .on            ^                                               an whetter certata of the suspended HEC 2    ..e    NKo.                              criteria are r.ecessary to pratect the public

s repropui; ate was explici:ty ained at assur,ng :,.at :.,.e s e health, sa f e rf, and the environmen or are consisten: wt:0 the requirements of the act.

By restor ng the orderty system for develop-ing regulatory requirements that was estab-(foo: note con:,d) linned by the act, we intend that these issues will to fully considered before NBC should deterstne the riske associated will finettree its technical criteria." Is:ct stil tatlines and the stenificance og -

nsse ::sks. Thev should also esamtre 127 Cong. Bec. 52975 (daily ed. March 30, 1982).

                                                                                                                                                                              ~7-var sus requiatorv aooroaches :s dost with s; n ficant r:sks that are ident:fted.               . .

Despite this clear instruc ton from the Congress On tecnnical assues relating to the regula. . directing a fundamental reconsideration of the criteria, the * , tica of mitt taglings. EPA and NAC should . both exercise reasonable jud;nent on the appropr: ate course to accomplish the basic HRC now prsposes only superficial modification. Although a purpose of the act, which is to orotect the puslic heat:5 and safety frse arressonaole few words are dropped or modified and a few sentences are risas.= altered, the preponderance of the tem: and certainly the mata 123 Csng. Rec. 513C55-56 (daily ed. Oct. 1 1982) (sophants thrJst of the criteria are unchanged. The NRC's proposal is added). Indeed, there is a wealth of evidence that Congress intended HEC to make a threshold determination of sign:ficance thus manifestly inconsistent with the esplicit directions of befsre promulgating 1:a 1, criteria. lit. e 32, 128 Cong. Rec. 513293 (da117 (amendments ed.toCct. lay rest 1982) (statement of Sen. Schmitt) Congress in amending the UMTRCA.*

                                . . . the positism . . . that (off*-

clais) are required, under the preamble to the M111 Ta111ngs 5. The Proposed Amendments Leave insuf ficient Act. :s i= pose certata kir.ds of con :als . . ..regardless of Room for floathility in the Desten and risk *); 128 Cong. Rec. E5060 (da11y ed. Cec. 9 1982) (state. Implementation of Disposal Plans ment of 3ep. Lujan) (*we decided to cla:1!y our intent that - the agencies regulate only significant risks *) 12S Cong. Rec. H8816 (daily ed. Dec. 2, 1982) (remarks of Rep. Lujan) (*agen- In 1983 Congrees also amended section 04(c) of the caos aunt independently exerca se :het best technical judgment Atomic Energy Act so as to permit a licensee to propose

 . . . ta deterstne the risks involved in tallings and to craft
 . . . requirements designed to deal with those risas which are signtiicant").                                                                                         alternatives to the specific requirements adopted by NRC. The See   e.c.. H. Csnf. Rep. No. 884 97th Cong., 2d Sess.                                           Congress spec 1tica!!y instructed that such alternatives might 47, iiir,tnted 13 1982 U.S. Cong. & AJ. News 3617 ("The con.                                           be considered where thes forees are of the view that the econcal: and env1:snmental casta associated with .            requirements estab11sned by the agencias should bear a reasonable relationship to the menefits espected to be derived.").                                                                             '

The comments filed by Ker -McGee concerning the EPA d proposed standards for licensed processing ettes, see note 3 supts, reveal the variety of areae in which modificatton of the criteria to necessary. 6 0 =.

9- "a;;arnatives w ;1 echtsve a invol of s:a 1- ' ' 1:a::sn and conta:nzent of the sa:aa c:n-corned. and a tevel of protect:on f ar punlic The NAC's half-hear:ed recagni ::n of : e c:ng:sesi:na; health, safety, and the envarcn=ent f :3 rad:olag: cal and nonradiological hazards dire::1ve is :nadequate :o meet the congress anal in:en:. " ass:c:ateo ws h such sitas. which is equiva-The current s::ucture of the ;; posal wall create tent ta. Os :Se estent :: sci 1 cable. or more at :ngent ::an the level wh:ch would be ach eved by standards and requirements prescrptions in favc of particu*ar meth:ds -- the noth:ds ad:pted and enf or:ed by the C3amission for the same purpose and any finst standards defined in the body of the criteria -- and require a licensee prc=ulga ted by ( EP A l . " to prove that alternative methods are more desirable. Where 42 U.S.C. I 2114(c) (emphasis added). This amendment was the the desirability of such alterna:1ves is' stready apparent. result of Congressional concern that the NRC criteria provided such a procedure w111 serve to detrease needed !!ex15111tv. Annufficient flexibill y for deslang with site-specific increase costs unnecessarity, and creato disincentives to the problems, ferticularly at existing sites. Seg, gug2 127 Cang. application of innovative or superior designs. To satisfy the Rec. 52973 (datly ed. March 30, 1982) (statement by Sen. congressional intent, the criteria should focus primarily on simpson).' goals, objectives, and standarfe, not on specific and rigid in :ssponse :o this congressional concern. NRC now dest;n or operating requirements. Moreover. in areas here proposes only an addition := the " Introduction

ts the cri-the need for flexibility is now known, the criteria themselves teria that sculd authorize licensees and applicants to propose ,

must be revised. Cnly in this way can the NRC satisfy the alternatives. The language of the proposed addition is essen-congressional intent that a licensee be per21 ed to inplement taally identical to that of Section 84(c). The H2C thereby prograne for contral and closure of sites that meet basic purports to provide flexibility through an ese'aption power. standards for protection of health, safety, and the environ-ment through cost-effective designs tailored to the specific In discussing the NRC criteria. Senator Simpson noted characteristics of a site.

                   "Certain of the technical requirements adopted by NRC . . . are cast as absolute require-ments, and NEC has provided no flamibility in                       "

applying these requirements at esisting sites - Kerr-McGee recognizes that the NRC has requested comment where large quant::les of 2111 ta111ngs in 1:a advanced notice of proposed rutomaking concerning :te

a. ready exist. in adopting these absolute

su!!!ciency of the fleaibility prow:ded by the changes to the

                                                                                      'Introductica" of Appendia A. 49 Fed. Eeg. 46425, 46426 requirements, particularly for emieting sites. MAC does not appear to have given                           46428 (1984). The natter is sufficiently inportant as to sufficient attention to censiderations of                          require immediate revision of the proposed rale.

prac:1cability such as the economic and environmental cost of meeting the require-ments."

                                                                           - tit ~

e

                                                                                                                           - *2 -

1:er:-McGee sessa a tha the pt: posed dese ::n at :he : suc m:h an a; erna:We is :np n::::a=le, !.: .:pess g e three-rater :sver requ:recen: in Oritert:n 6 representa 13 38n7 13s:8ncee. " S e criteri:n pers::s a .icensee :s precisely the type of change that should he effected through. , **** *** ff**

18 *P " A* option" only if he can demonst:a:e ou: the c ::er:a. Se three-cater requirement was des ;ned to that an alterna: W e wait provife
reasonably equivalent ensure a 2 FC1/a's emanation :ste f ar radon-222. ne IPA A 88I8E18A of :4111:qs f::n natural erosional farces." W.e :.

standarfs ad:p a 2C pC1/m's rate, and tha:s some change in the as no logic in inposing on a 11:ensee the burfen of design:ng criter: n was required in any event to reflect the higher a disposal method to compare f avorably with a sethod that is a!! owed radon fluz. ** Powever, instead of adjusting the D E 8Ppropriate for its ette in any event. Se licensee thickness of the required cover, the proposed amendment merely * " gn en 8Pproach that makes requires a cover des:gned to meet the standard. This approach a e, t to draw abstract comparisons with one that does . will permit the thickness of the cover at each ette to be

designed based on the composition of the cover materials and " *C 8 .eC eria impose rigid repire-other :stevant fac:ars,ta without the need for exhaustive se to that entail sin 1*ar prsb* ems when applied in the real compar: son of the design to an arbitrary requirement. wer14. For example, C 1:arion 4(d) requires disposal sites :s Ker -McGee asserts that stattar changes are in order *
f ar other aspects of th'e criteria that' require conformance con compond of rock fragments with specific character 1s-with spect!!c requirements that are known to be inappropriate "

for many sites. For example Critation 3 ::eate below-grade Ptions is practical. Due to the a:Ad condit:one of the disposal as the " prise option" for disposal of tallings, even *g a. a vegetative cover is t:nlikely to be suffician ty self-sustatning. At the same time, rock fragnents of the type Ker:-McGee reserres its oojections to the 20 pC1/m's * * * * #*** " standard, which it he11 eves was adopted by EPA armstra 11y and in the absence of evidence either that radon from tallings and can be poses a significant risk to health or the environment or that imported in sufficient quantities only at huge the benefits of the standard are justified by the costs. cost, an

            . .In developing its 20 FC1/m's standard, EPA noted tha: the thickness of the cover needed to meet such a standard would                      as vary ac:srding to the characteristics of the cover materials.                            In fact, E?A speettically 22und below-grade disposal to
         !?A, f t: at Env1pnsenta t T mac: Sta:eeent !s: Standards for                    be an inappropriate requirement for esisting s a :e s "- see the Con::sl of Sverscge; Nateri st s fr:m Uran:um Ore P :cesstnq                 pp. 15-16, )nfre.                                                                                  ~

4-9 to e-12 15ept. *943) thereinafter " EPA (EIS').

                                                                                     ;ft-

The s!cpe reTurenents of Or::er:=n id:) are also i represented a reint: resent sf .has regnre-C." next s :=possible to nee: in nany areas. " hose rep:remen:s Secause ga0 has as: tat;sred the ::::er:a :s resrgn :e requtre vast amsunts of land, since the grades env:s;oned by p1 21:17 the differences betueen new and ents:Ing s :es, the cr :erion will requ:re each tallings pale of any sign:ft- * :P se alls far short of cringing :h* Criteria ints cant si:e ts be spread sver a large area. Many licensees * """ sinpiy do not own that nach land. Moreover, such increases in he preambles associated with N30's various area also lead ta a need for larger amounts of cover mate- ac Lons on its criteria, the NRC has occasionally acknowledged

um f an t at the regulatary approach for entst:ng rials, including soil. This can antall great practical .

e e difficulties in areas where large amounts of cover materials a be different from that for new attes. For exacple, cannot be readily obtained, in its intstal promulgation of the criteria, the NRC briefly These fes examples are sufficient to document a discussed the matter. 45 Fed. Reg. 45521, 65523 (1980). And fundamental flaw in the NRC approach. The optimal method for . stabili:ation of tallings viii differ widely from site to sPects of Cetterion 1, the staff absorved' that

siting only site. The ce:ter:a should not specify requirements that are applies ta new sites or new disposal areas.* 48 Ted. Beg.

known to be often taappropriate. The practical dt!!!culties . I 1 But one searches in vain for any sugges-in staotlizing tallings are burdensome enough without the ni he criteria themselves es to how the application of creation of requiatory obstacles to :he inplementation of a

a a will differ from ents ing to new sites. The sensible program. . Cacmission apparently anticipates that the problems associated C. "'he Celterta Do Not Provide Suffician With th* app 11 Cation of the criteria to estating sites will be floalbility for Dealing With Existing 51tes addressed on a case-by-case basis." Yet many such prootens When UM'*1CA was enacted in 1978, Csngress explicitly * **
instructed the NRC to
consider possible differences in "

e n - applicability of . requirements ta existing tallings attes ensees have clear guidance as to how s proceed. relative tc new tallings sites. '" The subsequent enactment of 6 127 Cong. Eac. 52973 (daily ed. March 30, 1982) (statement by Sen. Sinpaca). 124 Cong. Bec. H12969 (daily ed. Oct. 14, 1978) (state- " ment by Rep. Udall). Sg a l so 11.R. Aep. No. 1480 (7t. 2), M 45 Fed. Beg. at 45523; 11 NBC, final Generte Izuac-95th Cang., 2d Sess. 44 (197dia it.R. Rep. No. 1480 (Ft. 1), Statement on Urantun Millino, A-70 (Sept. 1980). 95th Cong., 2d Sese. 16 (1978).

                                                                                                   -S P

                                                                                                                                             .~            - - ~ - . -       -.                            ..      .   . . . . , _ .
                                                                                                                                                                             - ;5 -

t

                                                     ?:: exanpis. :he nany aspects af.:he : - er:a                                                q sfa Esposal f ar nisting s::se. " IPA's ::::;us;:n. un m e

! relating :s e:::ng are holly inapptcp :a:e as bases far E

M
ier13n *n the po:::. was based os a careful cs .sid-deal:nq w :t fae:111:es that have already created -- and etted orat:3n 3 :

e actual costs that would be in.olved in appiy:ng

            -- large quantities of tailings. On their face, the c ::erta                                                                           8    8   s       esente (including that of below-grade disposal) c:uld be construed ts ::eate a presu=ption that such ta 11ngs                                                                          3 U18:1".3 sites as weit as ta new ones. *n the absence :f a nus: be moved if the s:::nq requirements are not met. regard-                                                                        c n::sdi::sry a:udy by NRC. the c=f erta sh=uld follow gyr*s teos of whether such a massively costly endeavor le r.ecessary

to meet the basic health, safety, and environmental goals * * * ** ** * "I * ** ***

toward which the UMTECA is directed. If oo. the application qiven insuf ficient consideration in other areas as well. yse of the sittag requirements to existing ettee is arbitrary and esample, the conflict between the slope requirements of captacious. Indeed. any such application is directly contrary '* to Congres** s amendment of the UMTACA to require that the discussed above" is par:1cularly critical for plants with criteria address only significant 21ske and that their coste 1859e 988Dritime o tallings already in esistence. In some bear a reasonable relationship to benefits." yS pp. 5-4 cases. 11=ensees may not have enough space or access ta su=rs. sufficient quantittee of cover materials to dispose of esisting Another area in which the criteria will continue to tailings in compliance with that criterion, much less ta apply inappropriate requirements to esisting sites, even 12 . dispose of any additional tallings from continued operations. the proposed changes are adopted. As in the area of below. Taken as a whole. the criteria fail to reflec grade disposal of ta111ngs. Criterton 3. EPA gave signift- adequate recognition of the fact that ta111:ss at existing cant consideration to the issue of whether below-grade dis- ' posal should be a requ: red aspect of disposal p;sgrams and

ccactuded that it would g;ot be appropriate to require below-
must be reforautated to. reflect this fundamental fact.

The criteria were developed through an analysis centered ar:und a "modet mil 1* that did not have large tailings piles " See EPA FEIS 5-2. already in ess etence and hence did not address the added costs ~ EPA recocaended 12pt below 5:ade of moving such piles. TE;5 5-2. 9-7. See HRC (CE15 chs. 5 11s cocoare EPA dispoeat be considered for m tallings tapoundments only,

                                                                                                                                                "    yS p. 13 eunts.
                                                                                                                                        -ry-

3- any A end:en:s Eelating :s Groundwater the amen =:ents :s One "*CRCA adcp;ed by 0:n :ess in ;i43 .ere 3hculd Auant :he Results of the Thor:u;n intendec :s prevent exactly these consequences. According17, R Exam:na::an How 5eing Under:aken by . g , , As discussed above, Congress in 1983 directed the criterta relating s gr:undwater be deferred. NEC :s revise the criter:a to bring them inta confor=ance with II. the EPA standards. NRC Authori:ation Act, 5 IS(a). *n E'.*EN 1T SI'557AM7t AL RE::OH5IDERATICH 15 NOT KIN, 3 5 PROPOSAL MUST !! $*.*350A.t!AI.i.7

                                                                                                          *fHD E

fulgt11 men; of thss obligation. the Commission has puolished - an Advance Notice of Fr3 posed Rulemaking, 49 Ted. Reg. 46425 As discussed above, Kerr-McGee asserts that the NEC (Nov. 26, 1984), inviting comments on how HRC may best fulfill h MWM u cWW a MmW umnMam W 1 s responsib111:tes for protecting groundwater at tallings revision of the criteria. Even if it is assumed arguendo that sites. In its notice. the Commission properly recognizes the the NRC can somehow avoid this re,sponsibility, many of the need to ensure that such regulations are imposed in a compre- particular changes p;oposed by the HRC and many aspects of the hensive and coherent manner. In light of this action, Karr-with the *"MTRCA. We therefore turn now to a criterton-oy-McGee urges that all aspects of the criteria relating t criterion discussion. it must be noted of the outset, however, groundwater protect:sn should be deleted or suspended pending ccs:pletion of NRC's cceprehensive rulemaking in the area. that the .g.aws in the criteria are so pervasive that even af Licensees should not be burdened with constantly shifting the NRC were to accept and follow all of the fs11owing comments, regulations prceutgated in a piecement f ashion. NRC has the defects discussed in Part 1 would still be inadequately addressed. suffi:1ent authority to ensure that individual 11censees meet bastc groundwater protection needs until such time as a NBC *fntr: duction" to the Criteria cooprehensive set of criteria are adopted. (al NRC crocose i Add the following paragraph at the end ~' iconsees or applicants may propose In addition, several of the changes relating to alternatives to the spect:1c requirements in t 1e APyendia. The alternative proposals may gr undwater fati to address significant risks, will impose take into accounc local or regional conditions, incPadang geology, topography hydrology. and increased costs of compliance .,ar greater than any incremental hCMutewMMh 6 proposed alternatives meet the Cammisaton's

                                                                                                                                 ,, gg ,      ,    ,

increase in benefits, and will have the effec. . of drastically Level of stabilization and containment of the rest:1cting the alternatives avaliable for disposing o, sites cancerned. and a level of protection f: pubite health, safety. and the environment f::= tailings, particularly at esisting sites. radiolog cal and nonradiologica* hasards As discussed above.

$$~

l l l l l l 1 assec:sted w h the s;;es, which :a equ:valan-

s. :s the em:ent practa: ante, sr :::e a:::n. as a ;: a *.. tu: demands eff ec:*veness f ar :n* y 200 years. 'O gen: : nan the level which would be a ::eved by C.T.A. t 192.32(b)(1)(1). The EPA standard rec:qnt es tha:

he requ :ements of this Appendix ana the scancards p ==ulgated by the Env :stsental 7:otec::on Agency in 40 CTR Par: 192, $ : par:s dos:;ns atten cannot be *praven* eff ective f r 1 ger pert:ds 3 and E.=

and thus an absolute requ*:emen: that a design przvice a:aa111-Ear:-:1cces suppor:s this amendment, which is clearly :at:an f ar a thousand-year period :s totally arkt::ary. leg required by Sec :on 34(c). H2 wever, as discussed above. 44 Ted. Reg. 45926, 45737 (cct. 7, 1983). Moreover. it is Kerr-iic0ee believes that this proposed amend:ent, standing rietther reasonable nor cast

effective to design earthen alone, is not sufficient to meet the Congressional intent thag structures to test beyond 200 years without aatntenante. The the regulatory program provide flexibility in the das!qn and HAC critetton, as HRC proposes to change i t, would therefore implementation of disposal plans for individual fac111:tes.

Impose tremendous coste far a speculative and unproduc:1ve Other aspects of the criteria snould ateo be amended to purpose. it thus is inconsistent not only with the EPA reflect the congressional preference for flezability over standard but also with the requirements of the 1943 UMTaCA

1914 :squirements. amendmente.

Cri;arton One (b) .NRC ortcosals indelete first paragraph, the second Listed the word item of the

                                                                                                                                                            " usable."

(a) NRC or:cosal In the ft st paragrapn delete the pnrase ** * * "or thousands of years * * ** and insert * * * . Ear:-McGee objec:s to this proposed char.go. It is The precise nature of the change proposed here is arbitrary and capricious to require the protection of ster that is unusable to begin with. Such a requiremen:, which difficut: to deterstna , because there is apparen:1y an errar in the Federal Register notice. However, it appears that NRC would produ:e no tangible ber.efits, would greatly oagnify the is proposing to replace the " thousands of years

standard with costs of disposal. The proposed amendment is thus directly a *1.000 years
standard.s* This change is inadequate :s contrary to the requirements of the At mic Energy Act, partic-conform with the EPA standard, which sets one thousand years Commise1on to impose a 191d requirement that in fac: provides The section of the Federal Register notice that purports no added protection of health, saf ety, or the envirsnment.

to q1ve the full tes of the criteria, with the proposed At a minimus, the Commission should amend the c ::e-amend =ents included, seems to require protection for 1.C00 years. 49 Ted. Reg. at 46422. However, there appears to be rion to make 1* clear that deviattan from this requirement scoe language missing from that test as welt.

                                                                                               =Sb-

s:;i ce pe:::::ad shen etatuation of al; reisvan; f ac::rs The E2A standards squ::e :n;/ tha: the need is: snows that a plan :nvoi.:.g con:ac: w :n n:nusaale g::undwa:ar is appropr: ate fs: a particular site. ac::ve saintenance to "minist ed." 4C C.F.1. Il 172.32(begi). Kerr-McGee tet: eves 2p4.11; gal. that Congress has demanded that the NEC prow:de such 21emi- Ta11ure to delete the mandatory language in :he h:;1ty :s 11:ensees concerning att aspects of the criteria. NRC cc :eria will therefore result in an inconsistency be:*seen but any requ::e ent tha: cantact vi h nonusable groundwater he to criteria and the standards. This incons:stancy was recoq=1:ed by the Cs sission when it suspended this port an of prevented should be spec:fically identified as an aspect of the criteria on which the NRC anticipates the need for flent- Criterion 1 (and sanitar language in Criterion 12) in August 1983. bility. Lee 48 Ted. Reg. 35350 35354 (Aug. 4 1983). The Commisaton was carrect in suspending this requirement. which (c) Kerr-McCae orooosal Delete the phrase *with-out ongo:ng active maintenance" from the first should now be deleted altogether.as sentence. Delete the last paragraph reading

                   *!atlings shall be disposed of in a manner that                      (d) Ferr-McGee     orsoosals in the first paragraph.

no accave maan enance is required to preserve delete the pnrase 'in selecting among alterna-conditions of the este." tive tatlings disposat sites or judging the adequacy of existing tailings sites.* and Kerr-McGee believes that these changes are required insert in its place "In selecting among alter-ta confors the ::::eria :s the requirements of the E?A stan. nqt*ves for new tailings disposal sites. .* As has been discussed above. the application of the dards and the relevant statutes. HRC is authorized ta estab-lieh rules to ensures siting requ! ements of Criterton 1 to existing sites is whcity "that . the need for long term 1:appr:priate. la the suspension proceeding, NRC rejected maintenance and monitsring of (tallings Ker -McCae's suggestion that this criterion be suspended disposatt sites . . . af ter ters nation of such !! cense will be minimited and. because

siting only applies to new sites or new disposal to the samanum estent orsc::caole.

ettmanated." areas.' 44 fed. Reg. at 35352. Ker:-McGee agrees that the 42 U.S.C. 5 22Cita)(2)(A). HRC*a blanket prohibition on act* ve maintenance enceeds this statutary authority and Section 84(c). which was enacted by Congress after the ignores Congre ss's recognition that the complete e11sination original criteria were promulgated. also requires elamination of such a mandatary requirement. The entire purpose of the flamibility requirement la to ensure that sites presenting of ac:1ve maintenance is :n fact nos feasible.** special disposal proolema not be locked into methods that do not meet those probleme in an efficient manner. So iong as a disposal program mesta the basic health, safety, and envir:n-sa See 124 Cong. Rec. H12969 (daily ed. Oct. 14 1978)s 124 mental goals of the criteria. it should not be rejected out of CangI Kec. 519037 (daily ed. Oct. 14 1978). hand merely of active because 1: to designed ts include limited elements maintenance. c ::e:::n shcuid anty apply 3 new sa es; hcwever. : .a: La ns. ! e considerata:n of renstecess f Sm populated areas what the cri:er:sn appears ta say. The pr posed change w;;; la also of imited 1:portan:e far emia *ng s ss at whi:4 ' nerely b :ng the language of the criter =n inta tine w;;g :g, cpera:1ons have ceased.

                                                                                                                                                                                 ~he E7A standards are based upon unders:acding by to:h Kerr-McGee and, apparently, the C:..=1s-                                              #*l=uL

i*"* of he alth e f f ects ove r the 1:ng term. These s on, that the sit:nq requiremente can have at mos: 11n::ed e facts rise above irreasurante levela octy if compounded cter app 11:ation ta exts:Ing sites, hundreds of years.

Since pcpula:13n pa:: erns can.ot be If any of the siting requirements of Criterion 1 are Predicted wit.h accuracy in:o the distant future, the concept ta be applied to outs: tag sites, changes in the requirements "sen a y meaningless in this content. of the criterton are clearly required. Several of :he 1:ees Thus, a requirement of remoteness can be justified only *n listed in the c :terion have no logi_ cal app 11 cation to existing ter3e o risks to health or safety in the short tera. Such si:es,' par:1cularly those at which processing operations have -tera risks do not emis: at a tailings ette at which ceased, for example, the requirement thac " hydrologic. C" n9 para as ave ceased. condi ians be considered is secstble only for operating sites (el Ferr-McGee orcoosal: Delete the sen-at which continued addition of water to the tallings is . tance, "!n :ne selection of disposat

                                                                                                                                                                  . sites, primary empnasts s g, g,,gagg,, og g,g.gng, , hall       be given
                                                                                                                                                                                                     , ,,,t,,, ,

expected. At attes where operations have cea. sed and the only matter havinq tong-tera tapacts as remaining activattes concern stabillgation, hydrologic cond1= opposed to consideration only of short. tera convenience or benefits, such as tions are a auch smaller concern, since the ta111ngs have mintaigation of transporta:1on or land e d ted (or are in the process of drying) and future seepage This sentence is inconsistent with the 1983 cmc 3A will be mintaat. In developing 1:s differing standards far

active and inactive sites. EPA has futty recognized this short* tera costs to be disregarded altogether. UNCT3A requ*:es important distinc::on bec een the operational and postorera- at e costs of a disposal plan bear a reasonable relation-tional phases of a ta111ngs site. See, m, EPA 'FUS 5-4 4e '

Fed. Reg. 590, 594 Han. 5, 1983)(EPA inactive-site standards); 1 ng-tera casts and short-tera costs. It is of course 1:portan: The NEC should also incorporate this distinction in its 4 a costs be given their proper weight in the calculation, criteria. but there is no justification for disregarding totally any cat-egory of cost or benefit merely because it'may ce shor -:ers, i 9

                                                                                                                                 -se-

Th:s c:nsagerat :n is ;ar:::ularly relevan: :s s::aa a: -n;:n a: inactive at:as. Sc:h : .nense c:s:s are no:

st:fied =v operati ns have ceased ar.d final stantil:at :n is under-ay.

A: that po:nt, nearly att of a licensee's coste may be charac - ' eri:ed as short-ters (particularly since the criteria prahina: nanda:e that the casta af such a requirement bear scoe reescc-active mai.:seca as a feature of a disposal plan). It aculd ' be tilog cal and con::ary to the inten: of the statute to := fact, belaw-grade disposal. par:1:utarly as a require such costs to be disregarded merely because they are " prise cption," is go3 necessary to meet the fundamental scals to be incurred right away, rather than at some time f ar in the of the criteria. As the Commission recognized in the suspen-i sian proceedinge *belcw-grade disposal is not necessary :s i 1 criterton 3 meet EPA's* proposed longevity requirement." 48 fed. Seg. a: (a) NRC orsoosals Delete the modifiers "high 35352. Moreover, below-grade disposal actually enhances quality *'ior groundwater in the second s e n t e nc e- the of the second paragraph. risk of misuse of tallinge materials, since it conceals

Kerr-McGee opposes all such amendments in the cet:eria that prah: bit cantact w: h nonusable groundwater. the disposet site.

Sie pp. 20-21, suors. At a minimum, Criterion 3 should be amended to make (b) Kerr-Mccee orooosal: Delete Criterton 3 in its it clear that below-grade disposal does not have to be the ent:rety.

prime option
for existing sites. The Commission has already As has been discussed above, Kerr-McGee opposes the stated as much, gig 48 Tod. Reg. at 35352, bu- the critecion requiremen: that below-grade disposal be cons"idered the " prine option
for disposal sites. Such a requirement is partica-as presen:!y written draws no distinction between existing ar.d new sites. An amendment clarifying that point is therefore larly inappropriate for esist ng sites. Far example, at required if the Commiselon does not fallow Kerr-Mccee's facilities such as those in New Mexic s, compliance with such a recommendation that the entire criterion be deleted.

requ::ement would necessitate movement of large emiating Criterton 4 tailings piles at enorsous costs -- conceivably on the order ( a ). NRC oro osets Revise paragraph (a) by deleting of $100,000.000 based on COE estimates for movement of tallings *aam mum possible flood" and inserting " Prob-ante Manimus T1ood." 1 8' See pp. 11-12, 15-16, suora. 1

                                                                                                                                                      -#1-

                                                                                                                                                                             - 29    -

Ker:-Mcces :pposes th:s propcsed acen::.en:, s:n=e () .

                                                                                                           ..r.e r:- L,,,e e = r:r: s a .g    ::eiste paragra;n (c) :=

netther the exist:n; tanquage nor the pr:posec new - .anguage * ***""*7* represents an appropriate requirecent. A Procaole Maxt=us Paragrapn (c) requires embanknent and caver sicpes Flood (FMT) is an extreesty unlikely and :stally specula:1ve * ** *=i *17 fl8C af ter final stabilizat:an. Such a event. Its chance of cc urrence is considerably less than **Wi!"C*nt 18 necessary 23 effect its stated purpcse of 13; g si n. Under the Universal soil f. ass Equatica, 0.1* per year, and 1: is very unlikely to occur en a 200 year . basis -- or even a 1.0C0 year basis. Such a requirement to thus inconsistent with EPA's 1pagevity requirement. Most elope, including esck cover, vegetation, rainfall, and so on. nunicipal stora systems and other flood control systens are Slogies of 10h:1v are not required to meet th e EPA longevity designed only for 100-year storas, even though the ha:ards resulting from the fatture of such systems would be consid- providing more attractive locacians for future human use. l eranty larger than those takely to result from erosion of a ** * " ** ' 31;1 :attings pale. * * * * * * ** "' * ** ***"** *' It is particularly inappropriate to 1: pose the : e disproportionate casts such a requireeient u111 enta11 at 7:cbable Mastnum Flood requirement as an element of atte selection. It is entirely possible to stabilize a tailings (d) For:-Mc0ee proposat Delete _he first four

                                                   -                                                       paragrapne of paragraph (d), beginning "A ful!

pile at a high FMF site so that there wall be no appreciable self-sustatning vegetative . . .* and ending

                                                                                                           " points (a) and (b) of this criterton."

erosion even if such an ur.likely event occurs. faciuston of The asserted purpose of the language proposed to be such a requirement as a site-selection criterion is thus deleted relates to the prevention of erosion. However, arbitrary and capricious. vegetative and rock cover are not the only measures ava11 ante (b) Ferr-McGee pronosata Delete paragrapn (b) in its entirety. for meeting this need. Other seasures, such as contauring or Paragraph (b) provides for selection of a site to terracing, may be more than adequate at some ettes. The ensure that tcpagraphic features provide good wind protection. criteria should not hamper time highly atte-specific judgments - such a constrata: to not necessary to meet the EPA standards, as the Commission recognized when the requiremer.t was sus- ,i. pended in August 1983. The paragraph should now be deleted. " 4

                                                                              -Go-

                                                                                                                                          .   .. .          .. .     . .~.. . . . . . . . . .   . . . . . . . . . . . ..          _ .

II -

30 u;:h : s ::11 :pers:2: =ust =ake u;ca final sta :;;:a:::n :: garr.3ce ,2,gg,v , 3,3 ;;, g,;,g;3n ,g , ,,= nd

pose requ rements wn:ch ate deather c s:-;ustified nor son:ence is not appr:priate. Ker -i:0ee is concerned tha: the c:s:-effec :ve, deletian of this language could be read as preclud: g uranius As has been discussed above. the specift: require-sand backfilling de a =ethod of dia;ssat. Sand backfilling is

                                                                =ents in paragraphs (d) relating :o composition of rock c:ver                      a disposal method that enta:1s returning tailings :s the sace are unrealistic g ven the unavailabliity of such

perfect
underground sandstone equifer from unich they were origt ally sck in the areas where urantum is mined and milled. Since , mined, Studies have denonstrated that this practi;e has had, vegetative cover is also inappropriate in many such areas. and will have, no untaward effects on the groundwater in the
Licensees should be encouraged to develop more realistic and aquif er in question. contaminants contained in the tailings cost-effective erosion control techniques.

are removed by the mine drainage sys:se. The strong reducing * (e) Ker:-McCae prooosja in the fif th paragraph of

paragrapn (d). delete the phrases "In addit on environmen: in the aquifer -- the same environment that causes _,,,

to rock cover on slopes . . _* and *. . . wath substan:ial rock cover (rip :sp).* uranium and heavy me:als to concentrate there originally -- .;* see ccaments 4(c) and (d), suors. will over time result in a return to the pre-mantag backgr und concentrations of the cantaminants as the aquifer scharges. (a) NAC orososals in the first paragraph. delete Sand backfiliing has a nummer of signif tsant bene-the first two sentences beginning " Steps shalt be taken . . .* and ending " potential uses" and fits. First. it protects overlying f armations free co11 apse the phrase *. . . in order to accomplish this and thus prevents cross-communication and possible lose of objective" in the third sentence. Xer -McGee supports the deletion of the first aquifers. Second. it assists in assuring worker safety by sentence and objects to deletion of the second sentence. As preventing collapse of mine roof s and contratting radon decay has been discussed above. Kar -McGee cpposes any limitation on products in underground mine workings. Third. it allows more contact with groundwater that is not currently or potentially complete estraction of minerals by providing support to mined out areas. Tourth. At virtually e11sinates radon releases 'o usable. The regairement that seepage to groundwater be mt tat:ed an all circamstances is therefore inappropriate, and the atsosphere. Finally. it results in deep disposal of a

                                                              .,e
                                                               -- .    ,1:st sentence should be deleted. Alte rna tively. NRC                  significant portion of the m111 taglings, thus rezoving should insert the word

usable
before " groundwater
in that se

                                                              **" *"C'*                                                                                 lee Kar -McGee Comnents on EPA Standards at 95-97 &

Appendia Tabe 44, 49.

                                                                                                                                       -LI-

pr:= ems =f eras :n. external rad:a ton, and fu:ure nasuse af Ear -M:Oea ::lec a :s this paragraps ta :ne ex an: t ail:ng s . s e :nat the rena

=g language =ay be =:e:preted as requar:ng The EPA requ :ement of no contact w::h g :en: water i=perneso*e liners :s te installed a: esisting sites.

Any referenced in 40 C.T.R. I 192.32(a), app 11es only ta surface such construction is :=c=nstatant with IPA standards, which

=pc~-d ents and thus should not te applicable ts ear.d back.

specifically exemp: emas;ing sites from its ";::sary" s:andard fil;;ng. In other contem:s. EFA has in the past reissnt:sd far protection sf groundwater. 40 C.T.A. 6 ;92.32(a)(18s see 4 the generally bene!:ctal features of sand backf1111ng by 48 fed. Reg. at 45940-41. Moreover. the requirement of a categor::ing such operations in Class V for purposes of the syntheti Liner under esisting ta111 age is not justflable in unde r ground injection control program under the Safe Drinking light of :sst and environmental =ansiderations. It is clear Wate: Act. that hundreds of olllions of dollars could be required ta A minor amount of seepage is necessarily associated obtain a new site, construct a liner of clay and/or synthetic with ist :a1 eand backfilling placement. However, such material, and relocate an esisting tailings pile to the site. seepage, wht:h as intercepted by the mine drainage system. is Turther, because an existing pile cannot be acted before it of fint:e duratton and is relatively insignificant.8' Sand dries out, the movement cannot aid in control =f water can art-backfilling operations do not, therefore. result in any nation. The requiremen would theref are provide no benefit to appreciable deterioratto,n of groundwater. The criteria should the environnent or to health protection. Such costs should continue to permit such operations as a viable alternative for not be imposed in the absence of a demonstrated,rt ok to disposal. health, safety, or the environment and a showing that the (b) NRC stopg3g1: In the first listed 1:em under benefits are reasonably related to the costs. the first paragrapn begar.n:ng with "lastalla-tion of . .* Jelete the words

low permeabit.

ity" as a character:stic of bottoe. liners. Use of a synthetic liner may in f act he counter-productive in some instances if a " bath:ub ef fec;* 1s created, se Many of these advan: ages were recognized by EPA in its causing liquid ca overtop the liner and leak in 3 grcundwater. analys:s of disposal alternatives. Se3 EPA TE!5 at 8 16. Moreover, use of synthetic liners is likely to require con-Such minor seepage is not prohibited by 40 C.T.2. tinued maintenance, l 192.32(bl(1). wn:ch incorporates the requirement of 40 a result the ;tRC has elsewhere condemned. , C.T.R. l 264.111 that the closure must control, min:ms:e. or I elin nate escape :s groundwater. (c) NEC orocosala in the second paragrapa begin-ntng "mhere groundwater impacts . . .* delete i the phrase 'to its potential use before milling operations cable." began to the maalaum extent prac :-

                                                                                           -(2-

C ::er::n 6 Kerr-McGee supports the daietion of th;s tanquaqs :n (a) NaC ;;;posal

he gt:und tha: res:::ation of groundwater 23 its potent:a1 ent : sty and inCa'.ete its place the first son:en=e :n 1 s.

inser: new language.a use is := nany :nstances neither cost-ef fect:ye nor cost. W1:h the exception noted below. Ker -H:Cae suppcr s justified. Hokever. Kerr-McGee opposee NRC's raticcate is: this prspcsed change. As discussed soove, Ker -accee go, evee thi s acend=ent. to the exten that it seeks :s in=s:porate a t at NBC should use this amendaen: as a nodel f or tee type of s ::ct nondegracation s:andarf. Bostoration to background changes that should be nede throughout the criteria ta gn. condizians is :stally arbitrary and entails no significant crease the focus on goals and standards and decrease the health or environmental benefits. emphasis on rigid requirements to meet those goals. (d) !GC orocosal Delete in its entirety the t.,.t ed Ker:-McCae objects, however, ta the application of paragrapn neginnang "while the primary method of protec: tag groundwater shall be isolation the Uranium Mitt Licensing sequirements to thortum fac111:tes.

                                                                 . . .* and ending ". . . from current or poten:tal uses.

To our knowledge there is only one licensed thorium facility Ker:-McGee objects to this change to the extent that in existence. Kar*.McGee's proces sing site in West Cht:aga, 1 may be interpreted as precluding sand backfilling opera, NEC should not impose generic criteria that w 11 in fact only tions. See pp. 3C-31. suora. be applicable to a single ette. Such an acticn would be the (e) NRC orotosal In the ft st sentence of the *g"1V81*nt Of an ad 841Catton o Kert-McGee s rights and fif th paragraph beg 1Antag "This information shall be gathered . ." delete the word

usable" where it modifies *g:sundwater." responsiblit ties concerning the Wes Chicago facility and not a.true rutomaking at all. See United States v.

Kerr-McGee opposes this change. I!or:da East It ,is wasteful to impose costly nonstoring and related requirements for g cund. Coast Rv. Co.. 410 U.S. 224, 244-45 (1973). The law requires that such an adjudication provide pescadural protections to water that is Eat usable. (f) Ker -?4cGee pr:posals Delete the parag sph Ker:-McGee that are not afforded by th,1s rulemasing proceeding. beg:na ng 'tastatTation of . and ending T** ** * ** ** * 'h*"1d h* * ** "*

b* **d*
PP11 c an t e to "nine acnths of esposure.

thorium facilittee. The West Chicago f acility should be The NRC should eliminate any language suggesting handled on as. ite-specific basis through the licensing process. that a liner should be an absolute requirement. particularly at ents:ing sites, les p. 32 supra. The full text of the proposed change is no: ancluded here because of its length.

s f :GC ::es eie=: := apply the ::::ar:a :s :::::u= (d) Ker;-h:3ee r:::sai Oe;ete the :;.o senten:es fac:*ities, an acenenen: should be in:1udad that spec:f::a;17

                            .                                                                                      beg:nn:ng 'Meer surf ace csver sacar:als' gnd ending *.      the c ver cate:La1 1 se'f.**.

recogs :es the parta:aiar need f ar f

ezibility in dealing wn:h This language is not requirea by the EPA standards.

the single nach st:e currently in existence. Th:s is ne:es-wht:h refer merely :s. reducing fium to 20 pC1/m's f;s= byproduct eary because the c ::eria were designed to app!/ ta a a: del materials. Radon flum fr:a cover materials poses a sinu:e urantum mill, ws:t 'ittle independent c:ns:dara: tor. giver, to risk and is of insufficien: el;nificance to warrant specifi: the sign;fican:1y di!!aren character 1s:1:e of thortua facil- regulatary cont:al. Moreover, because the activity of "sur-Sties. See EPA TEIS Appendia G. " rsunding so11s* varies widely in uranium districts. the deter. (b) NRC orsoosal Add a new paragraph at the end. mination of whether the radtua content of the cover is "e!avated" This new paragraph directly incorporates the EPA will create needless controversy. standards on this subject, and although Kerr-McGee believes ** Criterion 8 that those a andards are themselves invalid, the proposed (a) N3C prooosal: At the end of the first full char.go appears to be canaisten: with the standard. paragraph. add a new een:ence to read "Dur: q operations and prior ts closure, radiation (c) Karr-McGee stsoosals Calete the sentencei *The doses fr:e todon estestona from surface in.

                  - ,                   eff ects of any thid synthetic layer shall not                             poundments sha11 be kept as low as is prac:1-be ta' men ints account in determining the                                 cable.*

calculated racon exhalation rate.' This maandment appears to be required by the E7A Ker'-McGee believes tha the ccntinued inciusion of standards. Kerr-McGee reserves its ob*ectisna to thsee this language wiki tard to preclude the developcen and use of standards. new technology. There is insufficien: basis .*or presuming (b) N?C pr:posal Ts11owing the :hted futi para. graph of Criterion S. Just before C ::e: Son SA, that the radon omhalation rate cannot be maintained with the insert ltwo new paragraphs l. use of than synthetic layers in all instances. s As stated above, Karr-McGee opposee application of , .g these criteria to thortua f ac111 ties. Kerr-McGee reserves its for amarple, the thorium decay product radon-220 (thorong objections to the EPA standards upon which these amendsents o has a much shor:er half-life (and to thus dispersed over a much smaller areal than redon-222. the equivalen: decay are based. product in the urantum chain. Calculations of " population risks

for thorium facit*:ies are therefore significantly * *
different fram those associated with uranica f ac111:1es.

                                                                                         -ci-

                                                                                                                 - Ja -

he Cacn:sa:on has pr:pssed no enangea to Or; eria finally, the reg.:::seen: :s :sp:r: in wr :: q wt:h:n '3 fays

2, 7, g, 10, 11, and M . " Eer:-M:Oes heiteves : hat add::tanai of a resta.... a.,.ar shu:, wn due s aff-normal performance .:s changes are rems::ed in some of those cr:teria as we!! :s incanelatent with ';AC requirpments for athe,r licensed facia-gg ,,, , . og, , confars them ta the !?A standards and ta the re.evant stat-utes. For emanple. Kerr-:icces oblects to Cri arian 9 ta the g gg.d of sh edsvn a d e t m W g e h % n should be su.,.,., c e c.

                                                                                                          .. ,o r  .,e entent that :t appears to preclude Joe of self-insurance                                                         .
                                                                                                                          .:ensee :s saintain documenta -

coupled with a financial test. The appropriateness of self- tion concerning cessations, corrective actions, and restarts insurance in this content is well demonstrated by its success that is ave 11able for review during NRC inspections, in other sistler attuations " and its preclusion here is The minisat monitoring needest for a site that has arbitrary and capricious. been designed under the criteria is also insufficient :o Kerr.McGee also cbjects to the highly burdensome Justify the 3250,CCO minimum charge in Criterion 10. Ker:- mont:aring requirements found in Critaria 7 and S, which .

McGee believes that a!1 of the financial and monitoring should be unnecessary if the other requirements af the cr:- reTJiremen:s of the Cri:Gria sh0uld be re* evaluated in light teria are carried out. Many of these requirements are not of (1) the significant changes that are ta he made in the generally applicable and are not appropriately included in the crateria as a result of the EPA standards, (2) the EPA longev-criteria at all; such requirements are more properly contained ity requirement, and (3) tt.e congressional instruction that in the license or as conditions to the license if the parti.
all reqJ1:enente be esatuated with full consideration given to the costs of compliance.

cular cir=umstances warrant. Further, it makes little sense to rest:1ct daily inspections of tailings / waste retention CONCitJ51CN systees to "a qualified engineer or scientist." The praper Kerr-McGee believes that the proposed. amendments to concern is that the taal'ings be inspected by a qJalified indi- , 10 C.T.R. Part 40, Appendix A provide no more than cosmetic vidual, regardless of disciplinary education or degree. changes in most instances and fail to address the serious

 "                                                                               flaws that continue to esist in the criteria. As fiscussed Eer:-McGee believes that the pr:hibt: ton on* active maintenance      in Criterion 12 should be deleted along with                   above, Congrees amended the 6 af*er the initial issuance 1         in Cr 6 h 1.      M m n% mn.                               of the criter a             .
 "                                                                                                    ao as .a demand schstantial reconsideration 1.ie , 3.2.L. 40 C.T.R. l 254.145(!) (RCIA regulattans).

and revision. The criteria must therefare be revised to bring

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J #Q g . Uw'Q . Pr:posal for Con *sratag NBC Require-Yeter J. N&c41es Edwan T. 5::,11. M. S. . D.V.M. .. rs r..n Richard A. Moserve e e=== aante to EPA standards 149 Federet Sonya D. Wi .nor Vice Presadent and Directar $8 "*""* Register 46418 Noweeber 26 N T Covtagton a Surling for Environment and Ifealth e ao Managemen: Division Enclosed f ar your con e n de r a t ion a r e cas-1201 Penney 1vanta Avenue N.W. . , , ,

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aante of the American itising Congrese ( AttC) on the p.O. Boa 7564 waenington. D.C. John C. St aute r. Ph.D. L, ,,o w Nuclear Regulatory Cometanton's (WRC'en propoemd Director. 'tuc!aar Licensing , , , changes in urantum eati ta111 age 11 censing require-and Regulacism and Director, 8 *= o=a.= at mente to conform to standarde proeutgated by the Environmental Affairs - Enutroneental Protection Agency (EPA) on October 7 1943. 5: err-McGee Chee cal Corpora ',on 123 Robert S. De' Yudar WRC's proposal constitutes a retenuance of regulattans tenued on Oc:soor 3, 1980 .ath iteited Oklahcea Cla:y, OklahomaKerr Avenue,3125 L%. w acQ,.,, . a revistons to incorporate EPA's standarts. a . e. h

                                                                                                      ***"'*                                               AMC to an industry association that encom-February 11 1985                                                                        e  ,

se.De ", " - passee (1) producers of most of America 's metale, g 'e coat, urastus, and industrial and agricultural go,QP annerats: (2) eenuf acturers of sining and etc.ral n, processing eachinery, equipment and suppasse, and

                                                                                                      ****==aa.

_< (3) financtat instituti ne and engineer tag and

                                                                                                      $ 7 ,"r M 'a===e                         consulting fires that serve the sannng ind.a s t r y.

Included seithin AMC's mesoership are esapanies

                                                                                                      .      < 8,,*",',=*

7. so g, that aine and process a substantial portion o*

ee.a ce . e t!se nation e utentus, dpD NRC's first obligatson to to confers ice

                                                                                                     $.*."."r
                                                                                                      'g                      hg              act1one a e,r,.a

_e- leeued by to the intent of Csngreen. not to standarde EPA. As fatty Jewetoped an AttC's coe-rs ,. . o "e

                                                                                                             .m e e g,       sente, EPA's standards are not " generally appts.

D""**' cable standards

as requared by the Urantue 'es t!

a.7. ' s**a.".*s* w ro Testings Redletson Constat Act AUMTSCA). On the o {*j*j*" - contrary. reserved by they thatintrude statuteupon to MRC.jurisdiction espressly e a- . _ w. v For the Coaste-

                                                                                                    *j ' ***'*gy .

rm ston to adopt those stacdarde .vould be an endica-tlan of its responstbatities and func t ion s .ususe ri3. s o - .

                                                                                                              .t.Ec.e e.                     UteTRCA.
                                                                                                                                                                                              -r-     o L6
                                                                                                    =

s as r e.esha- -w s.L. D., s Continued . 4, 4 f.e* y** .r

                                                                                                                                                                                                          ; u.~~,00 W.A
                                                                                                    *t C &e'  .'e 9.sa.9        -

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                                                                                             ~66 #

The Mcnotable Nunzio is111dino ' February Lt. 1985 " Page Te Moreover. s t r.c s :ssuance of the commission's : cts e: 3. 1780 :sple::ses far 2:11 ten 1&ngs. the CJngress nas asented 1:MTRCA 13 requtre the C3aelssion to assiere snet 1:s fequisstans - are addresseJ :s sign:ficant ranks and are reasonaoly related La terms of costs and oeneft:s. The re f ore. MRC suet reementne those requtremer.:s :s be sure they comply with congresstonal antent. Addn: tonally, the economic state of the ursnaus indJetry has changed since the issuance of NRC's original tatlange American Mining Congress req *Jarements. The indJetry hat undergone a St]Q1fiCant ContraC- aww -

tion, as futty :scognized in recent reports of the Departaen: of Energy. Many compantes are now moving from operational to clo-sure modes. Accordingly. the industry is facing stanttiaattort requirements far sooner than anticipated in 1980.

Comment 3 On the AMC stands prepared to assist NBC in resolution of the Nuclear Regulatory Commission's issues raised in this gutemaking. AMC and the uranium industry Uranium MillTallings Reguladons support reasonable regulations necessary to protect public heettta and the environment. In our view. Mac regulations muste MWal fot'Dnfoming MC e concentrate on stabilization, not radon controls Requirements to EPA Standartis e differentiate between esisting and future sites, and e a11sw for site-specific taptementation to the easimum ostent poss1ble. February 11.1985 should you have any questions regarding these cosaants, we would be pleased to hear from you. it is our earnest destre to be of all possible assistance to you, the consission and the Endustry in resolving the critical questione raised in this tutomaking. Si cerely. N J. Atten Overton. . President Enclosure 4 . s 4

.g.

AMERICAN MLNING CONGRESS COMMENTS (OITRCAs adopted the davesson of barendact:en between EPA and NRC first RE.a PROPOSED URANIUM MILL TAILINGS REGl; LATH 0NS COMPORMlHG NRC REQUIREMENT 3 TO EPA STAH-DARDS (49 Ped. Reg. 44,415. November te,1944) and nonrecnolog:cet espects of msil seilangs.

As recognszed by EPA's generei counsel use of the concept of

( The Amencen Wnang Congens (AMC) suomits these comments on the Nuclear Reg 4 story Co nmessson's (NRC's) proposal to conform ass reguletsons for uransum adt tailangs to stem 3 ercs assued by the Entsronmental Protection Agency (EPAl. AMC is a nataanal trade associstson whose members include a melority of the domestic utensum producers. NRC's regulassons for active ureneum processing sales are of erstical importance of the 1978 Reorgensaedon Plan for Mdl Tadings.

 .                             to these producers beoeuse the reguleuens wdl govern the operet6ons of the entire comestic uranium processang Industry from the day they are                                                                          As recognazed in Train v. Colorado Public laterest Research Creuo, effective througn closure, decommazionang and final stabaHsetion of tellings sites.                                                         If 428 U.S.1 (1976) (Traint. if Congress had intended to alter the Implemented these regulations will impose unnecessary and costly levels of control on                                                                        estehushed policy of the Atom 6e Energy Act (AEA) in UMTRCA.

a severely depressed uransue ladustry. Less burdensome and less ecstly methods of control would provide appropriate, and in many cases greater, protection to the pubhe ' 8 8 Mthm sete bounoertes, impose desagn. health and safety and to the enviro.sment from any potentsel hazards associated wout uransum maliang. specifle requirements by NRC. As such, they are beyond the jurssesetson of EPA and. consequently, are e

mere nWiety* of me legal force or effect, SUM M A RT UnHed States v. tarlonoff. 434 U.S. 444. 873 n.12 (1977) (tertonoffL e NRC's first obligassen is to conform its actuas to Congressionet intent L

NRC srOULD ABDICATR ITS CONGRE553ONALLT MANDATED LEGAL RESPON-SIBI1JTIES AND PUNCTIONS LP (T ADOPT 3 EPA STANDARDS la UMTRCA. Therefore, if* NRC should adopt EPA's standards it would e Sance its rettf 6cetaan of Reorgenasetzen Plan No. 3 of 1970, coaststent andicate 6ts responsabilities and oblagelsons innder UMTRCA en violetson of Congress 4enal policy has been to limit EPA standard setetag authority for HRC licensed feeslities to " generally applicable standards." meaning sten-derds that are appuceble outside sate boundaries and that impose no site specilac design, engineering or management requirements.

                                                   .t.                                                                                                                                                                                                                                                                                      -H-

R. SECAUSE RADON EntISSIONS PROM MILL TAILINGS PILES DO NOT POSE A jurudiction f!Ied with the l*nated States Court of Appests 'er the Tenth Circuatd* SIGNIFICANT RISK OF HARM TO PUBLIC llEALTil. SAFETY OR Tile ENVIRON

MENT. NRC'S REQUIREMENTS SilOULD POCUS ON STABILIZATION OF TAne A\lC also acopts and encorpore:es sts preveously file 1 comments on NRC's or:g:nelly INGS POR A REASON ABl.E PERIOD OP UME o proposed reqJeroment and sts Cenerte Environmental Impact Statement.

Beesuse EPA's standards are outside that agency's juriscact.an. NRC must make and Jusuf/. efter notice and opportunasy for comment, e sagneticent GENER AL COMMENTS r:sm (md:ng before aoopttng any regulatory requirements for mau testings. L UL RECAUSE EPA *S STANDARDS FOR MILL TAILulGS EXCEED TilAT AGE NRC MUST ASSURE THAT THE COSTS OF ANY REGULATORY REQUIREMEN13 STATUTORY JURISDICTION AND INTRUDE UPON JURISDiCDON RESER POR MILL TAltJNGS ARE REASON ABLY RELATED TO RISMS EXCLUSIVELY 10 NRC. TilR COMMISSION UNLAWPULLY ABDICATES I o STATUTORY OSLIOATIONS BY ADOPTlHG EPA STANDARDS NRC has provided no analysis establishing that its proposed mill tellings The proposal states that the purpose of this rulemaking ts to conform esisting regulations are reasonably related in terms of costs.. risks and benefits. NRC requirements for the licensing of isranium mills and uranaise mill ta: Lings to it must do so before finalising any requirements. Isoreover, the pubtI4

                                                                                                                            " generally applicable respairements* of EPA.                         49' Fed. Reg. 44.418 (col. 21.1# The should be given an opportunity to comment on any such analysis before finaltration of requ.rements,                                                    proposal twther asserts that the proposed changes are " essentially nondiscretionary in nature

and are " legally mondeled in Section 275t:(3) of the Atomie Energy Act, as IV.
ANY NRC REQUIRE 31ENTS SHOULD PROVIDE FOR DISTINCTIONS BETWEEN
EXISBNG AND NEW SITES AND SHOULD ALLOW POR SEAKIMUM SffE SPECIF-IC PLEXIBLIJTY erroneous assumptions that are mconsistent =tth appliceole law.

o As stated by Congressman Udall during House corusderation of UMTECAs *"*""' '" '"' * '" ~ It is our antantion that the Commission and the States. "" * *' "' ** * "E "" ** in implementmg standards and regulations for mill testangs control, consider possible differences en applacebolaty of such management requirements - exceed that egency's jurtsdict6en under AEA.}/ as amended requirements to entstang testang sites relatava le new taalang sates. 124 Cong. Bec. Hl:S49 (desty ed.. October 18. IS78L la support of its commenu. AMC is filing ses comments on EPA's Aettve Site 1/ 1hroughout its comments to NRC contained herein AAIC references legal documents Standards its briefs an litigation challengmg EPA's active site standards. and, for the such as AMC and EPA briefs or memorende and the sestaments of various ind6vedua such as EPA and NRC offlesels. These references are pielac statements whsch .vake up part of the cumulative puoue record which addresset uransum esill tenlangs assues Commission's convensence, a bound volume of documents relevant to the issue of EPCs *"'" '"

                                                                                                                           ]/ NRC's entstang requirements appear at 45 Fed. Reg. 43.321. el sea (Octatur 3, ISSOL EPA's standeres appear at 40 Fed. Reg. 45.926 IOescoer 7. IS83L 3/ Puh.1. No. 83-181. 68 Stat. 919 (1954L 4

3-l i

                                                                                                                      -6S-k

by I;MTRCAl' and intruce on authority reserved by Congress an those acts to NRC's ' * * * *

sound caseret:ca. Accarcingly, EP A's stancards are not *generstly applacaole stancarcs' " #

as thss concept is useo :n both 4EA and l'MTRCA and are. :horetore. a 'ni.11 sty."F '* * * " As such. EPA stancers:s have no legal force or effect sal NRC is not required my law

go confor:n its requirements to EPA's standards. e59 (t M3) (City of sente Clarsk further:nore. 'talt is fundamental that an egency A. charged with implementetson of a statatory framework ordanertly possesses no authority HNC la Not legeur Sound To Conform EPA laut Tadings Standards To he E. stent het her Exceed The Statutory Juttadaction Of het Agency to deviate from or abdicate its statutory responsabilstles." llnsted States v. City of Dnder UntTRCA Detroes. 720 F.2d 443, 451 (Eth Cir.1983) (City of Detroiti temphasis addedL Adminsstrative agencias are statutory createares, and they must faithfully adhere The position taken by HRC that its actions in ins rulemaksag are "essanteelly is their statutory jurisdiction. 4tchison. Topeka & Sente Fe Reelwev Ca. v. ICC. 641 nondiscretionary* and %gelly mondeted" is untenable under the well-established, funda-F.2d 1889,1203 (7th Car.1979)( Atchisonis Summit Narsina Home. Inc. v. United States.

mental prenciples of statutory construction stated above. 372 F.2d 737,142 (Ct. Cis. L978): United States Steelworkers of Ameries. 4FL-CIO v. NRC is the %ed* egency charged with implementation of UMTRCA.F As such. NLR8. 390 F.2d 848, alt (D.C. Cir.), cert. denk4. 391 U.S. 904 (1964L ' h ere een be NRC is under a snandatory, nondiscretionary duty to carry out faithfully Congrazional no doubt that the authority of an admanistrative agency to promulgate regulations is intent in that Act. To adhere to this primary and cont:Olling duty to uphold Congressional timated by the statute authorizing the regulations.* Real v. Simon. Sie F.:d 557. 544 (5th Cir.1975). Moreover, "It is axiomasse that no order or regulation issued by an intent, NRC must necessarily corelder EPA's Atendards en relationship to U MTRC A's requirements before adopting them as e port of its regulations. For this agency to do admannstrative agency can confer,on it any greater authority than at has under statute.' otherwise would be e violation of its obligation to implainant Congress' latent in UMTRCA and an endicataan of its responsibilaties under that Aet. 5m Ascheson, supre. 1/ Puo. L. No. 95-604. 92 Stat. 30!! (1978L and CW of Denoit, m F As stated by the Supreme Court in Larionoff: The power of an administrative officer or board to admanaster a federal statute and to prescribe rules and regulations to St Accord listional 4ssocestion of Reeuteted t*tilatv Commission v. FCC. 533 F.2d that end as . . . lonlyl the power to adopt regulations to let, eli tD.C. Cnt. 1916) t" wide natitude' en ene esercise of desegated powers is not carry lato effect the will of Congress as expressed by the equivalent of untrammelled freedoen to regulate activities over whach the statute fa3 statute. A regulasson which does not do this, but coerstes to confer . . . authority *L 5*2 A_ts,o Ernst & Ernst v. Hochfelder. 425 U.S.105, 283-to create a rule out of herrnon, with the statute. Is e mere 14 (1918): Olson v. United States. 308 U.S. 44, 74 44965): Staru v. trackard. 324 U.S. nuustv.

                  ~~                                                                                    230, 33318 (1944)g Manhetten General Equipment Co. v. Commesssoner of laternal Revenue 197 U.S. lH, L34 (1936): International Railwev Co. v. Dev% 25; U.3 434 U.S. 944, 873 a.8 2 (1977). quotang Manhattan General Eoutoraent Co. v. Commessioner              See,5il(1922): Real v. Simon. SLS F.2d 557, SeM5tn Car.1975L of internal Servece. 279 U.S.129.134 titl6) tempnesis sodeot .4ccoro Presovterian St. Lume s weascal Center v. NL RB. 453 F.2d 458. 488 (leth Cir.194tl.

It H.R. Rep. No.1464. Part 1. 95th Cong., 24 Sess.13.15-te (1978L 5- ~8~

                                                                                                ~ 90 *'

1 The mere assuance by EPA of mill tentangs stendeeds cannot alter NRC's solige. taans. 5 Re(el(31. Puo. L No. 97-415. 94 5 tat. *078, if MRC's functica mere merely asnasterial EP 4 cannot by regulassan confer an esself any greater jurisdict:an tr.en et has

                                                                                                                                    - as the proposal suggests - such a rulemaning proceed!ag ivould serve 'to usegul uncer LDITitC 4 or ester tr.e ousagsason of NRC to schere to Congressional talent ;a purpose, and such a useless act eennot reasonesty De assured ta have >een Congress' that act. 5g Consu ers' Counsel suxe. Indeed to the extent that EPVs tiendercs                     6nt ent.

When Cong eas entends such a statsternet function for one agency an haietionship escoed its stat story partsdictaan, they are e

mere nuusty" and of "ao effect." E ersonoU.

j supre: City to another, it does not require two separate notace and comment ruteenemings and at a f of 5.nse Clare. m Under the ordinary dsctionary definstaan. *nuttity* i states 6ts latent in no uncertsin terms. For exemple, an the Cael ilane Safety Act of means *the feet of being nuu and dve* *en act having no legal veladtty? American 1969. Congress proveded for estettishment of any necestery mandatory health stenderds Heretste Dieslanerv of the Ewlesh I.enraaire (1970) et 948. Thus. NRC ts under e duty in a e6ngle rulemektrg proceeding in whicot the Secretary of the interior was requared to conform to EPA standards only to the eatent they are witMa that egency's statutory j to propese and finallae such standards as the Seeresary of Health. Education and Welfare jurisdictlan and do not intrude en jurisdiction reserved to 14RC. transmitted to him. 4 l Pids. L 91-873. 83 Stat. 744. Se U.S.C. 5 til (1983). 1 1het no court has yet invalidated EPA's stenderds on juttad6ctional grounds is not contrattang. Finally, to accept the premase that NRC is shaty bound under U3eTECA to e4 apt

           ;                                       NRC's fht obligation, es with any administrative egency. is to conform to Congressional intent.                                                                           without questaan EPA standards would render provisions of UMTRCAr toteu ineffectuel.

Under UMTRCs., NRC is not required to conform to gg EPA wh6eh te en unfavored statutory constructlen that is to the evoeded. Sg Huehes Air standard Section 84e(3) of AE.4. es added by UMTRCA. requires practsely that NRC l Cornerat6an v. Pubile Utsileles Comm6 mien. 444 F.2d 1334.1334 (9th ll Cir.1 conform oniv, so *eppuceale general stenoords' promulgeted oy EPA.f# lopuettiy. this NRC is duty bound to adopt the standards EPA has esased. Section 375(d) (givang NRC provision grants NRC discretion. 6n the first anstance. to determine if EPA's stenderes Implementatten and enforcement power 5. Section 84(eN38 (stvang NBC authority to are " generally applicaole standards.* Furthermore such discretion is consistent with , , general recyserements for potential nonredlological heaerds). and Section sitel (gtemg the right of each admannstratave egency to determee. in the first instance. Its varinete. tson. F.T.C. v. NRC authority to adapt licensee proposed sete specifle alternatives) are all totally f Ernstthet 407 F.2d 488. 4sd (D.C. Cir.19798.

seenangless.

f 30ereover. NRC's function sander Sectaan ste(35 eennot be es profunctory as its la effeet. NRC seeks to eveld the partsdictional assue by rehence on Secteen proposal suggests in view of Cosqress' further direction that NRC proceed through a 84(e) of UteTRCA as added by the Act of January 4.1943. Puc. L No. 97-485. 94 separete rulemak;ng with notice and opportunity for comanent. Act of January 4.19es, , Stat.1919, which provides that Ucensees may propose and the Commisssen may ensept

               ,                                                                                                                 site speenfle alternettves to specifle requerements adapted and enforced by NRC. Resed 8/

Nothing la the 1983 emendments to tasTRCA etters this responsibahty. On the en thee proviseen. NRC states that it can adopt. without EPA concurrence, any she

contrary. Section BeteN31 el the amendments statets

           .                                                                            *Nothing in this subsectnen ll.e.,

i 5ection If 5(fH may ce construed as effecteng the authoret, or responsibinty of the specifie alternative that protects puolic health. EPA. however, esserts en its comments I Commemian under Section 44 ao xomutt ste reeutetiong to protect puolee health and _seesty and the environment.* Act ei January 4. 4903. Puo. L No. 97-4 8 5. 94 Stat. 3067. 3978 (19438. on the proposal that in view of NRC's duty to conform to als standards esader Seelson

           !                                                                                                                     44(eH31 that EPA hee e right of eencurrence in any such site specific alternetave es
                                                                           .f.
                                                                                                                                                                             -e-5 i
                                                                                                                             -m-

i i i 4

   '                                                                                                                                                                                               ~

j 0 6 provided a un stanoeres. TNs conslact belmsen Sections sedesi3l and 84fel that EPt provasions of L*MTRCA - all an confiles wie:i fundamental pt:actpses of ed.ministratave seems to constr.act may be evoeded if NRC would enemine the besi: require ets of I'"

6 L'MTRCA math respett to the jurisdieteen of th9 two agencies. If NRC dad sc. :s mould R.

IPA S andards For MUI Tealings Are Not *Generesy Aptdaeehea $sendards* catermane thes no constact seemeen the two provasions esats, as NRC need conform As Cenereas latended to UMTRCA only to EP A standards that are *epplicable genere! standards." whics as to say - as espeW as authmty mader Seetaan SWa# of the Alamac Energy fully Cocumented belows those that apply outsade sate boundaries and ampose ao site * ' specif 6c. design, ergineering or mana6ement requarements. processing sites standards on Septamoer 34, L983, which

                                                                                                                                                                                       .ere thereafter promuJg:ted The conflict betmeen EPA and NRC that now exats as mannetessary. Indeed, on October b l943,48 Fed. Reg. 45.928, gt segg establishing redioso66cel and nonreasolog such conflicts were entended to be evoeded in UMTRCA. In the floor debate on S. 3584,             teel standards for uransum and thoreum adt tedigs.9/

a retened and substantieur samaler bau to that ultimately enacted as UMTRCA. Senator 1. Domenace statesa Indisputably, EPA's Standards Apply Witade Site Sounderles And in-gene Desen. Engineerinst And Menessment R eenarements A besse prinetone of the agreement is the creetloa of a untfled reguna for eau testants se that the versous estinct materials EPA s radiological stenderde regsere that teillogs deposal sites be *dmagned" to which nieke up a sangle edt tetlings pela need not be suopect assure that reden emissions from me marface of telianes piles wiu be liested to 20 to friekmented. displacesive and potentaally conflicting regule-tory activities by different government egencia . Pie cw8e8 por agaere meter per second (pCl/mg/sec) (the *redon em sanon sienderd"). 124 Cong. Rec. 515323 Idesty ed. September le. L978) (emphasis added). Only e eteer 48 fed. Reg. 43.947 6983) (to be endilled et to C.F.R. $ 192.32ttd(IMiDL According beagraphac bouncery seaween the jurisdictions of the two ageneses, such as the site tE IP1. the ptsmery purpose of its reden emission standard is to requere a thick ea

!                       bounderses, consistent with the pre-estating dienston sieted en AEA schieves this besac           dow r. or ogssveient, ever the tedigs pele. 44 f ed. R eg. 45.934-45.9331 45.948. All principle. That taaltgs pelas edt esist into the indef 6nste future does#not etter the             espe les        pi   en          me         aos   a sat u.          also %wes eteanup importance of a boundary an the regulatory scheme. Congress was ewere of ths fact                of redum in soni wj3 the licensed mu site area. whenever levets eseeed 5 picoeuries when it expressly requared transfer of ownership of disposal sites to the government             Per Erem NEF h it.e ffst R$ estae teters en seal s wfece everaged over 104 square and NRC Iscenses for them en perpetuaty, which necessarily requires a boundary and a              M*ters er II PCI/8 in any 15 centimeter layer below the surface eteraged over the restrteted eree. Section 83 of AEA, as added by UMTRCA, 42 U.S.C. 5 I!L2.

In summary, NRC is not enhgeted to adopt ena standard promungeted by EPA

9/ The final standards for uransum alu tell but only " applicable general standeids.* Tor the egency to refuse to consider whether s are identscal to those for thorium ad!

                                                                                                                       . testings. M 44 Fed. Reg. et 45.947 (1983) to be codelled et 40 C,F.R. 5 192.ata.

gyg,s final estive site sienderes also requare thorous mets tentangs to emeet the a:S EPA standards are nach withsa the seen6ng of UMTRCA ts en endicataan of its nuunrem stenderaL* whach as already agplaceale to areneum adt sedangs. Compare 44 C.F.R. 5 ste.letes lite 3) wu se f edL steg. et 43.947 (19 33 tio be econfied et se respons b6lities under UMTRCA that disrupts the intended scheme of that set, readers C.F.R. $ Itt.4ttak There ore. *asu testings
es used herein refer to both ureneum w thorium lede thss rulemaking a menneagless eseresse, and creates needless conflicts betmeen the

                                                                     .g.
                                                                                                                                                                    -80
                                                                                                                ."ry -                                                                /

s

t 1 serae area (the *rsomust in soil stancard*L 48 fed. R eg. 45,947 (19 38 (to se codif teg at En,-nn. enial Irnomet Statement for Stancarcs for t*e Cont. :t af Svxoduct *le t er* sis I 40 C.T.it. 5192.32f ad!H. In addition, the controts chosen to amplair.ent new stancar:s ' l ' must se *cesnriec to se effectave (or 200-1.000 years (the 'tongevsty stancarc"A te (TEl5L toi. it. at A.1-25 tResponse to Comment 18L la theory, NRC as author: sed to

                       !                              r.d. Reg. 4,.,4: n,.33 (to be cod.n.. et 4. C. r.R. 5 i,2.3 2 .m,Il (e m,,..s.s .dded,.                   -'--*"~'-"<"-----'r--"-<aau,--

Ostensioly, EPrs groundwater standards are praraartly concernec noth protect:en I * ""'** "*

of groundwater froen nonradiological constatuents 10/ EPA s groundwater standarcs R eg. 45.948 gg Ltgo, 44 C.F.L 5 192.31tas(tl. incorporatir:g by reference 4e C.F.R.

consist of a " primary standaro* end e " secondary standard.* In signif 6 cant part. EP A's ' ' groundwater standards are the same standards prevseusly adopted by that agency under operates withen the beundartes of the adl ta611ags setas. ~ See(EIS, Vol. II, at A.1-28 the Solid toaste Desposal Act for surface impoundments.UI ladeed, EP A's groundwater

standards for mall tailangs merely incorporate by refa'rence with minor esception, the ' "" "
detailed SWDA management re9strements for swface impoundments.UI EPA's *prianary standard" regsires installat6on of e liner beneath all new testings pales and lateral estensione of entsstag pelea to prevent non-radiological constituents
from entering groundwater or the soil under such Sales. *
40 C.F.R. 5 tt2.32talill.
Incorporeung by reference 44 C.f.R. 5 264.225 (19431 (with minor amendmentsis [si ""

48 Fed. Rag. 45,946-45,947. Wlule EP A's

standard" does not specify expressly a * * "I # "
synthette liner, the Preamble to the standards statess "The passary standard, 48 C.f.L Incorporating by reference 48 C.F.L 55 2s4.s3. 2s4.e4 (Isaak ~e Se 4e red. Reg. 43,s47 264.2*l. can usueuy be satisfied and be (sact using Ibser meterials (such as olastiest that een retaan att westes.* '" ' "

48 Fed. Reg. 43,948 (emphasis addedia geg ejs,o EP A, { lng * " "' " " '"' "' " " site speenfic bases alternate concentration timets et the eon of the taehnes asie. so long g/ EPA concluded that red 6ologieelconstituents en mill tailAnts do not pose a signifiennt as beckaround or drinkiser water concent etions =di be met no (wther than either (Il ) proolem to groundwater. 48 Foo. Reg. et 45,529. Nonetneless EPA estantismed certaan See meters from the eda of the teilinas asle or (*l the site '>oundarv. waschever ij radiologecal groundwater standards. 48 Fe4 Reg. et 41.947. A&lC's disc.assion applies equally to LPA's redsologecal and nonreasologscal groundwater standards, eithough closer. 44 C.T.E $ 192.32(aH2)(avl, incorporating by reference to C.F.R. 5 2s4.ss nonrediological consistuents are emphesazed because this is the primary focus of EPA s groundwater standards. . (194313 40 fed. Reg. 45.947 (emphuts addedL Alternate eencutretion tunsts et the edee of a testinas osle that omsid allow bactqround or drinkirq water eencontranons to ll/ 45 Fed Reg. 33.064 Oley it,1940). he escoeded beyond (I) See sneters from the Date or (29 the site MMarv. whee %ever HI 3 5 A34C Rely Srief en Active 5ste case. is closer. assy be adopted by N RC (or an Agreement Statel ent, meta EP A's concurrence. 33 .I*.

                                                                                                                                                     '13 -

44 fed. Reg. 45.947 temphasis addedL EPA's groundwater standards also require that The lang4ege of U14TRCA se defining EPA's authority es the same or suastanuaaly a cesection monasart g program be estabkshed et s'io ecte of__the We and specifies a samstar to lang sage used sa Reorganatetson Plan No. 3 of 19*0. .hac's aos spee:!:: ally de taaled water sarapear:g program for licensees. 40 C.F.R. $ 192.3:ta)(2)fisel. :ncorporeamg ratif 6ed by Congress. 5 (*.S.C. App. p. Il32 8333 tisses. 34 Stat. 2004 (1973 Reorgenaza-by reference 40 C.F. A. 5 284.$8 (1983): 4e C.F.R. 5 264.teigMil, reietenemg 4e C.F.a. "#'*"' 'd * ' 'E' 3 ' # 8 "'*' 8 *" ** # '*"* L ' A A*" "* ' I" 'd '* 244.974aillia 44 fed. Reg. 45.94* temphassa addedt.UI Thus. EP A's secondary *slen. taro" prornung88:en of *generaaly applaca38e envaronmental standercs.* whien mere defined operates etten the Sounosties of the mall sates and imposes design, engineermg and * *E'"'II I"' management requirements. mean Units on redsand emures or 'en ts. or concentreteens 9r cuantasies of tseioacteve matenats. sn the

2. seneral Under Da4TRCA EPA lies No Jurisdiction To tasue Standards hag 2"U enverment matsade the basanderen of locations uncer Are Effective withan he Bemdarsee Of telu Sate Emeauens Or Dat *I M0"s Ness 8M or uWed60ecun metenaC impose hennesement. Design. Or Enstauring Requirements

5. U.S.C. App. p. 8133 (1902) Imphesas addedL In pas secompanymg message. the a

(a) Use Of Sindar 14nguage In UMTRCA To Det Used la he Prea6 dent emphasised that the Atom c Energy Commissaan(AEC) was to "retaan respoma 1978 Reorgannaatton Plan Franseptieely Indleases het Con-grass Intended De Same Jurnaltetas4 Limits To Apply in Roth b6Hty for the &mplementation and enforeement of redletion standards throuch tes licensans Cases authorstv.* jg,temphasis addedL Section 215(td(1) of AEA. Es added by UisTRCA. Ilmats EPA's jurisdictiosa to the e swa t ineen W W E % M establashd h the promulgat6on of " standards of reneral sootscotson for the protection of puotic he98th, 1978 Reorganaretton Plan mas thereafter effirmed on numerous ocessaons.Ui Safety, and the environment from radioloescal and nonradioloescal hatards ' associated with* uransurn mill testings. 42 U.S.C. $, 2022(bMll (emphasas addedL Section 2*5(b) also states that *1 mole men ta tion and enforcement

of such standards "sh3 be the krandiction established en the 4978 Reorganazauon PlasOcw. m3 a espute a responsebelaty* of MRC and Agreement Stetas. respectively. 4t u.5.C. 5 2022(di temphasas Comoore Memorandum to the PresidentDiapasition).

Sumarry from Disy Lee Rey. Chearman. Atomac Energy Commtman Oletaan for addedLLg f t Administrator. Enverennental =1s3 34emursedum to the Pres dent from Russell E. Treen, Protection A tency Ototson for Summary DisposationL Dereafter. Roy 1. Ash. Direeter of the Offlee of idanagement and Sudget, for the President, resolved thee )srasesetaanal dispute. In so deang. Aan stateds EPt has construed too broadav 6ts researrabalities. as set forta en Reorgenazataan Plan No. 3 of 1970, to set generally M/ As the AMC Reply Brief in Actave Site case details. EPA en its mill tastings a mileable environmental standards for the protectaan of the standards adopts by incorporatmg its SWDA segulatory program numerous

management.

requirements for lleensees. general envaronment from redsoectave meteneL'

                                                                                                                                                                                          .      .        e 14/

further. Section 84 of AEA also states that *manese nent* of mill Issungs me!! be carried out *In such a manner . . . as the Commission INRCI 4eems appropriate to EPA should continue. under ses current authoriev. to ha n protect the public health and safety" *from rooioioniest nd nonredtolossest hazards .halatr r' oois uu .un for senau suamos (or the total emanant M associated nith* mdl tailangs. 42 U.S.C. $ 2tletaAll) (emphases added); 31 also 42 the senerna enetreament from mal facetaties U.S.C. 5 Ill4(a)(3L comoaned an the erantum fuel cyqle. 4.e.. en embeent Standard which wouks have to reflect AEC's (mosags as to the piecticabitaty of eesssaan controts.

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nanagement. design. eng neering and sate specsise requirenseMs necessary to :neet EP A's by the HouselW supports the conchaston that Congress adopted a diviston of jurendaction ofSite stancorcs.T betneen NRC and EPA equivalent to that of the 1978 Reorgsassesson P?an for soth redaological and nonradaological consistuents of lidt taalangs. (b) The lagulative History Of UMTRCA Confirms nas Congvesa Intended To IJeat EP A's Jurtsdiction Consistent With De 1978 Recreen&aallon Plan (0 De House Interior Commettee Bau he legislative history of UMTRCA at each critical stage of ses development The intent of the House laterior Comesttee is unambiguous. EPWs prascaction (namely, (Il as reported by tre ilouse lateraer Commsttee. (2) as reported by the House under UMTRCA mas to be the some as that under the 4978 Reorganeseason Plan eeth Commerce Commsttee end as snitsally passed by the Hasse. and (3) as passed by the respect to bot's radiological and nonradeological aspects of tastings. Descrabang EPA's Senate as a subststute amendment for the House-passed ball and thereafter agreed to antended authority, the Report of the Commettee on interior and lasular Af ters statess AUTHORITY OF THE ENVillONMENTAL PROTECTION AGENCY lt is the resoassibilite of the En=trommental Production (stel _Asenew to esteolesn menerally enouceble standerits end criter a for the orotection of the seneral envronment. corsidering 10/ rad 64,aal and nonr:

_M esoeets of sailines. The EP A E other envronmental statutes,This division of krisdiction between EPA and NRC has been recognaaed and appuedstanderes and ersterie should be developed to limit the eroo-sure lor Datential assosurel of the oublic sad to orotect the

In the Claan Water Act. EPA mes given espress authority to regulate radioactive neneret environment from either radioloeicet or nonradeotori-cal suostances to seceptanne levels through suen ineens as pollutants. 33 U.S.C. 5 1362ts) (1974L Nonetheless, based on the legislastve history of that' Act. the Supreme Caurt held that EPA had ao authertly to regulate scarce, allowsole concenuations in air or water, quantities of the specias nueteer, and byproduct mater:sl that was suoject to NRC bresdletion. Train at su3 stances released over a period of time, or by specifying 2s Il976L Indeed the Court noted that the legislative hastery reflecteo Cosgress' mastmum enowaole doses or levels to endividuals an the latent to preserve in the C;een Water Act the devision of authersty set forth ist the general populassen. The EP 4 siendards and crateria should not intersect env detsaled or site specifie reoutrements for 1970 Reorgansaation Plan. & n.*0. monasement, seennoncev er enaineeriter :netho_ds on :icensees Simstarty the Clean Ar Act also authorizes EP A to regulate radioactive emissions. or on ene Department of Energy. Nor snouso e P A enesroorste 42 U.S.C. $ 7401, ej n llS42L Ouring the House deDate on the Conference Commettee env requaremeJn for permits or laconses for aesivstias con-Report the f:oor manager for the beu satroouced a document c!arsipng certaan provisions. eernug uranium meu taalangs wnech would shacheste NRC That document reecgnizes that EP A's authority to regulate radiometave er potiutants reeutatory authority over the tenianes sates. is Ramsted to setting *outside-the-fence-lane e mission standardsisj.* Clean Aar Conference Report (1977)s Statement of latents Classisestion ot' Select rrovisions as appears in Senate Comm6ttee on Envronment and Puol6e works. 95th Cong. to Sest. A Lesislative Historv of the Clean Ar %et 4mendments of 197L 320 (Comm. Print 49f4) (emphasis aededh

                                              .hlost recently. In the Nuclear Waste Policy Act of 1942, which deels with long-term disposal of high level man-made todacectsve wastes. Congress ilmated EP A's                             L9f UMTRCA as ultimately eneeted, went through several changes during the eoarse
                                   )srtsdict6on to outside the boundaries. Peab. L. No. 97-425. 96 5 tat. Ital, 1228. 42                         of Its cons 6deration in both the House and Senate. For NRC's convensence. AMC is
                 .                  U.S.C. $ 19141 (IS42L                                                                                        providary a short summary of the esurse of its consideration and s side-oy-side somparison of Sections 84 and 275 et N.R. 33450 et the relevaet stages of their in short. the division of prisdsetaost first stated in the 1978 Reorganlaatson P!an                  development. together with related provisions appearing en S. 2544, a $enste bell dealeng is meet estaolished Congressional po86cy that should be devasted from only upon a very                        witn the same lesues which passed the Senate on September 18. 1978. 5,e_ e, i t s Cong.
                                 . clear showing of intent to do 30 whsch as 304 the case here. ,3        5 Treen at 23-24 (19764                Ree. 345310-35 Idenly ed. September 18. 4970L The side-ey-side comparison appears In the AMC Reply Brnet la Active Site case as Addendum A.
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Dear Slr Of p eriai,

Dear Mr. Chilk:

Dear Sir or Madam adopte,

Dear Sir:

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