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ANSWERS TO QUESTIONS
JOHN D. DINGELL
Question 1: (a) Please provide the statement required by the Act of July 25, 1956 (70 Stat. 652).
Answer. The following is an estimate of maximum additional resources to administer and carry out a remedial action program for inactive uranium tailings sites for the first five fiscal years:
(c) Expenditures for all
Question 1 (b). Please provide the Administration's views on H. R. 12938 and H. R. - 11698, setting forth your reasons therefor.
Answer. The Department of Energy (DOE) has recently submitted to the Congress legislation to provide DOE with authority to undertake remedial action on inactive mill tailings sites. This legislation, H. R. 12535, was introduced at DOE's request by Congressman Udall and is cited as the "Remedial Radioactive Materials Act of 1978" (the Administration's b111). The provisions of the Administration's bill and the Marriott bill are similar in many respects. On a number of key issues, however, the bills differ significantly. While DOE supports the basic purposes of the Marriott bill, based on an analysis of these key issues we consider the Administration's bill to be the safest and most effective means by which to achieve the cleanup of these inactive mill tailings sites. One of the more significant areas of divergence between the two bills involves the funding formulas. The Marriott bill requires the Federal Government to pay 100 per cent of the estimated "direct costs" (engineering, removal, stabilization, and monitoring) and 75 per cent of the costs of off-site restoration; the State is required to pay 100 percent of "indirect costs" (administrative, planning and property acquisition). The Administration's bill, on the other hand, requires the Federal Government to provide up to 75 per cent and the State at least 25 per cent of the costs to assess radiation levels and perform remedial action in and around inactive sites.
Since each state has received certain advantages arising out of the presence of the mills within the State, such as tax and employment benefits, it is felt that a State contribution of 25 per cent of the costs of program is not an excessive requirement. The affected States will also benefit from the program because in many cases, once the remedial action is completed, the land will be available for unrestricted use. Additionally, Congress itself set the precedent for a cooperative Federal/State program when it enacted Title II of P.L. 92-314, which recognized and assumed "the compassionate responsibility of the United States" to assist in the remedial action effort at Grand Junction, Colorado. The 75/25 sharing ratio established by that legislation is being implemented successfully in the Grand Junction program. Although the facts of the present situation differ somewhat from those in the Grand Junction program in that the mill tailings at the twenty-two sites covered by this legislation were not used for construction purposes, in view of the other policy reasons for the 75/25 ratio, DOE considers P.L. 92-314 to be sound precedent.
Section 4(9) of the Marriott bill places the financial burden for the assessment of radiation levels and performance of remedial action upon the Federal Government by requiring it to make grants of 100 per cent for direct costs and of 75 per cent for off-site restoration. As mentioned previously, because the cleanup of the uranium mill tailings sites does not reflect a purely Federal interest, but benefits the States as well, DOE considers 100 per cent Federal funding to be unjustifiable. Furthermore, since section 3(c) of the Marriott bill provides that awards of the grants are "subject to the availability of funds", it is possible that program funds could be depleted by those States whose applications for large dollar amounts are approved first. This subsection should be redrafted to ensure Federal ability to reconcile the award of State cost estimates with total program dollars. Another important distinction between the DOE bill and the Marriott bill is the proposed regulatory structures. Under the Administration's bill, the Environmental Protection Agency (EPA) is responsible for prescribing standards and criteria to ensure the adequate protection of the public health and safety and the environment in connection with the remedial actions; the responsibility for the implementation and enforcement of these standards and criteria belongs to the Nuclear Regulatory Commission (NRC). This proposed regulatory scheme is consistent with Congressional intent as expressed in the Clean Air Act of 1970, as amended, which grants EPA the authority to set standards for the emission of radioactive materials into the air, and the Resource Conservation and Recovery Act of 1976 which authorizes EPA to regulate the management of hazardous waste. Section 10 of the Marriott bill requires the NRC to establish regulations and standards to protect the public health and safety and the environment, and waives the applicability of any other Federal law. Aside from conflicting with expressed Congressional intent to grant EPA the authority to regulate windblown radioactive particles and gaseous emissions, this section creates a potential conflict in the regulation of naturally-occurring radioactive wastes in general. While uranium mill tailings would be subject to NRC regulation, all other naturally-occurring radioactive wastes such as phosphate tailings, would remain under the authority of EPA. In addition, section 4(b) of the Marriott bill sets standards for restoration of the background radiation level of any site to "no more than twice the background level which existed before milling operations began". This sets a standard for performance which may conflict with the regulations and standards to be established by the NRC in section 10.
Section 11 of the Marriott bill requires the Secretary to conduct a pilot study in Salt Lake City, Utah, to ascertain the level of contamination of structures within a 10-mile radius of the site, if any, and to determine whether such radiation poses a health hazard to individuals.
The April 30, 1976, Ford Bacon and Davis engineering study has already provided DOE with sufficient information concerning the construction sites and other structures within a 10-mile radius to enable it to perform remedial action upon these sites without a further year's delay. Other studies currently underway, such as the Los Alamos Scientific Laboratory study on the radon exposure problem, and the Grand Junction program experience will provide DOE with more refined knowledge of these issues. The pilot study authorized by the Marriott bill is unnecessary and will only serve to delay further the performance of remedial action on these sites.
Another area of DOE concern involves the difference in the sites covered by both bills. Section 3 of the Administration's bill includes sites "on which uranium ore was processed", but excludes from its coverage sites: (a) where no uranium was produced for sale under contract to the United States, (b) which were issued a license by the NRC or "agreement States" in effect after January 1, 1978 for the production of uranium concentrates derived from ores other than on-site mill tailings, and (c) owned by the Federal Government. The coverage provided by the Marriott bill is similar to that of the Administration's bill with one exception: section 4(a) includes sites on Federal property, while section 12(d) (1) excludes sites owned by the Federal Government as of January 1, 1978. These sections should be reconciled to eliminate this contradiction in coverage. Section 5(c) of the Administration's bill provides that "unless otherwise determined by the Secretary, the remedial action shall be performed by DOE or its authorized contractor. ..". The purpose of this section is to provide the Secretary with the discretion to delegate to the State the responsibility for the remedial action if it is determined that the State has the necessary capabilities and is willing to perform the remedial action. If such a determination is not made, DOE will perform the remedial action. The role of the State in the remedial action process is further defined in section 5(a) of the Administration's bill which grants to the States consultation functions to determine the need for and selection of the remedial action, and section 5(b) which provides that, in the event the tailings are removed for long-term stabilization, the State shali designate and own the stabilization/ disposal site, and retain ownership of the tailings and the land upon which the tailings were originally situated. The standards and criteria established by EPA are expected to provide guidelines to be followed by the States for long-term maintenance of the mill tailings. The Marriott bill envisions a broad role for the States which is not inconsistent with section 5(a) of the Administration's 6111 in terms of granting the responsibility to the States to perform the remedial action, if competent and willing. Subsection (f) of section 4 of the Marriott bill, however, requires the State to "describe the manner in which the applicant during the fifteen-year period following [the] disposal shall monitor the radiation levels at the sites. .. Beyond this fifteen-year period responsibility for maintenance of the tailings will presumably belong to the Federal Government. The view of the DOE on this issue is that long-term maintenance of the tailings should be a State responsibility.
In addition, the Marriott bill sets the stage for potential administrative difficulties, as it lays down detailed procedures to be followed by the States in section 4. This section should be rewritten to require States' applications to conform, not to detailed mandates in a public law, but to the standards and criteria promulgated by the authorized agency, which ca tailor the regulations to suit site-specific needs.
The Marriott bill sets up the following time-frame subsequent to enactment:
NRC establishment of regulations and
State submission of application for
Disposition of State application by the
Secretary - 120 days. Initiation of remedial action, thus, may conceivably not begin earlier than almost 4 years after enactment. On the other hand, the Administration's bill establishes the following time-frame subsequent to enactment:
Under this schedule, DOE would be free to begin remedial action within 270 days of enactment. in 11ght of our common goal to protect the public health and safety and the environment, a streamlined time-frame is an asset which is provided by the Administration's bill.