ML20058A495

Partially Withheld Affirmation Secy That Discusses Sunflower Coalition Petition Filed & NRC & State of Colorado Response

ML20058A495
Person / Time
Issue date:	06/16/1981
From:	Eilperin S NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
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References
FOIA-92-436, TASK-AIA, TASK-SE SECY-81-377, NUDOCS 8110290077
Download: ML20058A495 (13)

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C SECY-81-377_

e June 16, 1981_

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s ADJUDICATORY ISSUE (Affirmation)

The Commissioners

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_For:

Stephen F. Eilperin, Solicitor From:

Sunflower Coalition v. NRC, State of Colorado,

Subject:

et al.,

D.C.

Colo. C.A.~ No. 81-C-66 The Sunflower Coalition has filed with the Discussion:

Commission a petition requesting that the NRC (1) enforce the Uranium Mill Tailings Radiation Control Act to the extent practicable prior to November 8, 1981, and (2) terminate Colorado's There is a court-imposed Agreement State status.

deadline of June 24 for the Commission to act on the petition.

Failing Commission action by that l

time the court itself will hold a hearing.

===1.

Background===

on January 19, 1981 Sunflower Coalition sued the NRC, the State of Colorado and various state

. officials in federal district court in Colorado.

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The NRC and the State of Colorado filed with the s

s District Court on. April 3, 1981 motions to dismis 3

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the complaint.

Our motion was based on three

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, pi theories:

(1) that the plaintiff had not exhaust '

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administrative remedies, (2) that primary juris-diction over plaintiff's complaint is in the NRC,-

v" and (3) that review of any final agency action

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would properly be in the courts of appeals rather

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than in federal district court.

At oral argument '

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in Denver on May 15, the judge ruled that primary!

M. '..;;/.c :l r.beaticn_must jurisdiction is in the NRC and that plaintiff hr l

i.13::ad.i:i v file a petition with this agency within j!

FO!A fE '/74 twenty days of May 15 or its action would be dis Act, exempt.cr.s missed.

The Court further ruled that NRC must i

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CILINSK92-436 PDR CONTACT:

i Pat Davis, OGC 4-3224

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This paper is identical to advance copies which were distributed by 81/of9000'b Gp h

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SECY NOTE:

OGC to Comission Offices on June 16, 1981.

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l The Commissioners 2

6 decide within thirty days whether to hold a hear-ing on Sunflower Coalition's petition pursuant to 274j of the Atomic Energy Act.

2.

The Petition Sunflower Coalition has now filed its petition with the NRC, and the State of Colorado has responded to that petition.

4 Sunflower submitted i

no additl~oiihl information F The State supplied a voluminous amount of material in support of its response.

Sunflower's petition and the State's response are attached.

r Recommendation:

(

Stephen F.

Eilperin Solicitor Attachments:

1.

Draft Commission Decision 2.

OSP Memo 3.

Response of State of Colorado 4.

Petition of Sunflower Coalition Comissioners' coments should be provided directly to the Office of the Secretary by c.o.b.

Wednesday, June 17, 1981 (per request of OGC).

This paper is currently scheduled for affirnation at an Open liceting on Thursday, June 18, 1981.

DISTRIBUTION:

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Commissioners Commission Staff Offices Secretariat

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UMTED ST ATES

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NUCLE AR REGULATORY CO*.'.MisslO??

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,(,'" I, WASHINGTON. D. C. 20555

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June 16,1981

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MEMORA!OUM FOR:

Patricia Davis Office of the General Counsel FROM:

G. Wayne Kerr, Director Office of State Programs

SUBJECT:

PETITION BY THE SUNFLOWER C0ALITION PURSUANT TO 10 CFR 20 Enclosed for inclusion in your staff paper is a statement setting forth our comments on the contentions raised by the Sunflower Coalition in their Part 2 petition.

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G. Wayne Kerr, Director Office of State Programs cc:

W. Dircks, w/ enc 1.

J. Davis, w/ enc 1.

H. Shapar, W/ enc 1.

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O

t OSP COMMENTS ON SUNFLOWER COALITION PETITION On May 21,1981, the Sunflower Coalition filed a petition with the Commission requesting that the NRC (1) enforce the Uranium Mill ~?ailings Radiation Control Act (UMTRCA) to the extent practicable prior to November 8, 1981, and (2) terminate Colorado's Agreement State status.

In evaluating the allegations of the petition, the Office of State Programs has reviewed i

0SP has concluded that It is our opinion that P

On November 10, 1979, the NRC informed the affected states of the i

November 9,1979 amendments to UMTRCA which required that Agreement i

State authority "be exercised in a manner which, to,the extent practicable,

'is consistent with the requirements of Section 2740.. of the Atomic Energy Act."

In that letter, the NRC requested the States to provide 4

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their assessment of the degree to which their State statutes and regulations met the requirements of 2740. and their schedule for proceeding from the degree of compliance then permitted by State law and regulations to full compliance with UMTRCA.

9 On January 3,1980, the NRC sent a letter to the mill states transmitting T

correspondence between the Environmental Policy Institute and the NRC concerning the implementation of the clarifying amendments to UMTRCA.

The correspondence discusses on the Commission's policy regarding the clarifying amendments to UMTRCA.

The letter states that the pref erred s

course of action for the NRC in implementing the clarifying amendments is to supplement Agreement State regulatory programs through Commission t

assistance rather than to terminate or suspend all or part of agreements t

in States that do not meet all the requirements of Section 2470.

On July 11, 1980, the NRC sent a letter to the States requesting the States to inform NRC of the extent to which the States were complying with the requirements of UMTRCA "to the extent practicable." Particular emphasis was given to the preparation of written analyses of the impact

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of licensed activities on the ' environment.

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In addition, in NRC's June 9,1980 response to the state's letter of February 11, 1980, it was pointed out that the Colorado statutes and j

regulations do not clearly call for a written analysis, available to the public,before licensing covering the matters specified in Section 2740.(3)(c)(i)-(iv).

The Colorado regulations at that time required only that an environmental report be filed by the applicant and an evaluation be made by the Department of Health.

It was pointed out that

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new regulations would have to be written to specify that the staff evaluation be made in writing, be made available before public hearings, i

and that it cover the four major areas specified in Section 274o.(3)(C).

Colorado responded on July 18, 1980 indicating that The NRC respended on August 27, 1980 recomending that the State provide a more extensive oistribution of the State's environmental assessment and supporting documentation and place mere i

emphasis during hearings on the State's environmental assessments. The letter also referenced the NRC letter to Dr. Traylor dated July 25, 1980, particularly the comments addressing the preparation of environmental assessments.

The July 25, 1980 letter to Dr. Traylor.was to provide the State with an indication of where the State stood in preparing to enter into an amended agreement as required by UMTRCA.

In addition, on l

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i De: ember 31, 1980, the NRC sent a letter to the State indicating that the Commission had determined that in the interim period (before November 1

1931) it was practicable and necessary for Agreement State mill operators:

(a) to begin now (as opposed to after November 1981) to develop programs meeting the regulations;

't (b) to submit such programs to the Agreement States on the same schedule as non-Agreement State operations; (c) and to immediately implement steps to deal with presently occurring impacts such as blowing of tailings and uncontrollable seepage.

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As discussed above, the State indicated that

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i The NRC responded on February 16, 1979 forwarding a copy of the NRC final report, " Environmental Assessment of the. Tailings Management l

Program and Radiological Effluents for the Proposed Expansion of the Cotter Corporation Uranium Mill at Canon City, Colorado." The State l

prepared a Draft Executive Lic,ensing Review Summary on April 9,1979.

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t Public hearings were held in May 1979 at Canon City, Colorado.

Public notice of the hearings was provided in advance as well as notice of availability of the draft executive summary.

The draft executive summary contains a summary of the licensing review and the written environmental analysis of the CDH staff among other things.

In addition, t

the NRC prepared a detailed, written environmental assessment at the request of the state.

At the hearings, the state permitted submission of both written and oral coments and permitted members of the audience to ask questions of panel members.

Several members of the NRC staff participated in the hearing. After reviewing the coments at the public hearings, and all other comments submitted, the CDH issued a Final Executive Licensing Review Sumary whic.h sumarized CDH's environmental and safety review process and assessment.

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L Homestake applied in 1976 to build a conventional uranium mill next to an existing mining operation.

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6 construction has yet begun on this project.

CDH required Homestake to submit an environmental report and supplement.

In 1977, the U.S. Forest Service, on whose land the site is located, determined that an Environmental Impact Statement (EIS) must be prepared.

The draft EIS was prepared by the Forest Service, the NRC and the State of Colorado and was issued in July 1973.

The final EIS (FEIS) was issued in April 1979.

CDH also requried additional geotechnical, hydrology and engineering studies on the tailings disposal proposals.

CDH's preliminary Executive Licensing Review Summary (PELRS) was then published on November 10, 1980.

Notice was also given that individuals or groups could apply for status as a party and make a presentation at the hearing.

The hearing was held on December 10 - 12, 1980 with a hearing panel and three parties - the Colorado Open Space Council, the Gunnison Valley Alliance and an individual party.

All participants were sworn in, and the parties could cross examine them.

Allowance was also made for general public participation in the hearing.

Members of the general public could make statements to the panel, but were not permitted to cross examine participants.

The FELRS was published and a license issued for the Home. stake. Pitch Project in March 1981.

The state considered in its review and in the PELRS, the EIS and the FELRS all of the factors listed in Section

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274o(C)(i)-(iv).

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b Public comments were considered in the preparation of the Final Executive Licensino Review Sumary which was issued on l

August 17, 1979.

Having participated in the environmental review process in these licensing.

actions of the State of Colorado, it is the opinion of the staff that i

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