(c) It does not appear to be equitable to require owners of the tailings sites to assume partial responsibility for cleanup when they were unaware that the use of the tailings might have adverse health and safety consequences.

(d) There appears to be no legal basis, short of condemnation, for DOE to perform remedial action on these sites if the site owners do not want such action taken. Discussions with the site owners lead DOE to believe that the owners would want remedial action performed on these sites.

(e) The basis for the 75-25 split is historical. This was the ratio used in the Grand Junction legislation (P.L. 92-314).

(f) Since Indian lands are under the jurisdiction of the Federal Government and not the states, it was believed inequitable to require state contribution to remedial action taken on these lands.

(g) The sites selected for location of the mills were frequently very favorable ones for other uses. Many are in prime light industry areas, and hinder development even beyond their property boundaries because of the radioactivity. Others in remote areas may be limited to grazing. The use of adjacent lands as shown in the answer to Question 5(g) is an indication of the potential beneficial use of the sites.

(h) The land occupied by the inactive mill tailings and the adjacent land on which the mills were located, being radioactively contaminated, are essentially unusable for any other purpose. However, if the tailings were removed and the sites cleaned, they would become valuable. The land acquisition provisions have two purposes: (1) to preclude giving a windfall profit to the present owner, and (2) to permit profits realized from property value appreciation to reduce the cost of remedial action.

Lands in the general vicinity of the processing sites have been contaminated, often by windblown tailings. The cleanup of these properties should be undertaken as a public health measure to preclude further public exposure to radiation from these sources. The acquisition by the state of these properties before performing minor cleanup operations would be unduly burdensome and not in the interest of carrying out the primary purpose of the program, which is to lessen radiation exposure.

(1) The reason for the purchase option is to lessen the financial outlay of the states in acquisition of properties from which tailings are to be removed.

(j) Neither the states nor the Federal Government could benefit from the increased value of the decontaminated property unless the land were first acquired from the present owner. We could have specified Federal acquisition but believe state responsibility for this activity is preferable. Under the Section the states and Federal Government share in any proceeds from sale of the property. We consider this a reasonable arrangement.

(k) The provision in Section 5(e) provides for a proportionate sharing of the Federal Government and the State of any profits realized from sale of a property that has been decontaminated pursuant to Section 5(b). Since such a property would have been completely cleaned up, there would be no requirement for continued maintenance.

Remedial action would consist of those activities undertaken to reduce potential exposure from residual radioactive materials and, under Section 5(c), unless otherwise determined by the Secretary, would be carried out by DOE or its authorized contractor.

Question 7. Public law 92-314 required that the remedial work be performed by the state or its contractor. At the request of ERDA, our Committee recently amended that law to allow the owners to perform remedial action in accordance with state requirements. ERDA cited cost savings through that approach.

H. R. 12535 requires that only the DOE or its contractors perform this work. The states nor the owners can do so. We are concerned about this provision because it may prove quite costly. (a) So long as the work is performed in accordance with the requirements of the DOE, NRC and EPA, why is it necessary to mandate that the DOE or its contractors do it? (b) What expertise does the DOE have in performing

this work?

bidding?

Answers.

(c) Would all contracts be made through competitive

(a) The language of Section 5(c) of H. R. 12535 is not as restrictive as P.L. 92-314, and allows discretion by the Secretary by the use of the words "Unless otherwise determined by the Secretary." We certainly do not want to repeat the problem that was encountered with P.L. 92-314, and it is our intention that there be no mandate for DOE or its contractor to have to do the work.

(b) By reason of its long and detailed involvement in development of uranium ore processing technology, plant start up and operation, DOE has several persons on its staff who have considerable experience in this field. It has carried out a stabilization of the Monticello, Utah, site which it owns. Through the conduct of the engineering assessment work, DOE has knowledge of the stabilization work carried on on the inactive sites.

(c) All remedial action contracts would be made by competitive bidding.

Question 8. Section 5(f) and 7(d) of H. R. 12535 require that the United States be released from liability or claim "related to any remedial action". It does not state who will execute such a release. The term "United States" includes "corporations primarily acting as instrumentalities or agencies of the United States" but does not include any contractor with the United States.

Title II of Public law 92-314 requires a release of "liability of claim" upon completion of the remedial action or waiver thereof by the property owner of record. It also includes a save harmless clause.

(a) Please explain why H. R. 12535 differs from the provision in Public Law 92-314.

(b) Who would be expected to execute this release to the United States?

(c) Why is the release apparently limited to release of liability or claims arising from the remedial work only when the other law appears to release the United States from all claims and liability?

(d) Why is there no save harmless clause?

(e) Please identify the "corporations primarily acting as instrumentalities or agencies of the United States" that would benefit from this release and explain why they are included in this definition of the United States.

(f) Why is the definition needed or desirable?

Answer.

(a) Section 202(d) of Public Law 92-314 completely releases the United States from all mill tailings-related liability. Section 5(f) of H. R. 12535, on the other hand, effects a waiver of mill tailingsrelated liability limited to a specific period of time beginning from the date of enactment of the Act "through and including the completion of the remedial action." In light of the Administration's concern for the public health and safety it is felt that a total release from liability is not advisable. Thus, if a mill tailingsrelated injury occurs subsequent to the completion of the remedial action, no cause of action would arise.

(b) There is no written release. This subsection merely creates a non-liability clause for purposes of defense to litigation.

(c) Again, Section 5(f) constitutes a waiver relative only to a specific time span. For public policy reasons, total liability is not waived.

(d) A save harmless clause would effect a total release from liability for the United States.

(e) The language "corporation primarily acting as instrumentalities or agencies of the United States" includes such public corporations as the Comptroller of the Currency, the Federal Deposit Insurance Corporation, and the Federal Reserve Board. This language is an exact copy of the definition of Federal agency as set forth in the Federal Tort Claims Act (28 U.S.C. 2671).

(f) This language extends the release afforded by Section 5(f) to all cited elements of the United States government while ensuring that an independent contractor will not be released from liability for negligence or work done not in conformance with the regulations.

Question 9. Please identify the sites that are subject to the provisions of sections 6 and 7 of H. R. 12535 and state which lands are section 6(a) or (b) lands.

Answer. The sites subject to sections 6 and 7 are:

Shiprock, New Mexico
Mexican Hat, Utah

Tuba City, Arizona
Monument Valley, Arizona

All are on the Navajo Indian Reservation. The

definition under 6(a) and (b) is one supplied by Department of Interior and recommended for use in legislation characterizing Indian lands.

We have requested the Department of Interior to supply us with the information you requested. We will furnish it to you as soon as it is received.

Question 10. (a) Please explain why sections 2 and 3 should not apply to the so-called Indian lands.

(b) Why does section 7(a) require that the DOE determine the "need for and selection of" remedial action, while section 5(a) requires that the DOE select the action only? Should not the DOE determine need in both cases?

Answer. (a) Sections 2 and 3 should apply to Indian lands.
In Section 6 (page 6, line 7) reference to
Sections 2 and 3 should be deleted

(b) The comment is a good one. Section 5(a) should
also refer to "need for and selection of"

Question 11. Please provide a table showing the identity of each site included in the named states, the remedial action options proposed by the ERDA contractor, the estimated cost of each such option in current dollars, and the option which DOE now believes is most appropriate.

Answer. The tables of sites and options and their costs are all included in the engineering assessment reports which were provided to you. However, DOE has not taken the unilateral action of selection among options. We consider that this action should only be taken in concert with state and local authorities, EPA, NRC, and other interested parties. The states may want to know what the legislation will require of them before making their preferences known. Moreover, the actions would be taken in accordance with the National Environmental Policy Act.

Question 12. In light of section 501 of the DOE Act, why is section 8 necessary?

Answer. In view of section 501 of the DOE Act, the second sentence of section 8 of H.R. 12535 is not necessary.

Question 13. Section 5(g) of H.R. 12535 differs from section 202(e) of Public Law 92-314. Please explain the differences and state

the reasons therefor. these materials?

Why should the states retain ownership of

Answer. In the case of the Grand Junction, Colorado, remedial action program pursuant to Public Law 92-314, the State of Colorado owns a piece of land adjoining the former mill site which it is using as a repository for tailings being removed from structures. The state is required by the legislation to retain control over this material.

In Section 5(g) of H.R. 12535 the states will be required to acquire the tailings if they are to be moved to a new site and the land on which they are to be relocated. Thus the two pieces of legislation

have the same effect.

The requirement in H.R. 12535 for the states to retain ownership of the tailings is consistent with the approach taken for Grand Junction. It is the view of DOE that in view of the fact that 3/4 of the remedial action cost will be borne by the Federal Government, continued state control of the site of the stabilized tailings is equitable.

Question 14.

Please furnish copies of all letters, memoranda, notes, etc., in DOE and ERDA files concerning these sites from the date it was first discovered that these sites needed remedial action to the present time.

Answer. For practical purposes we consider date of first discovered to go back to the initiation of the studies on the inactive sites that came about in 1974 as a result of the hearings on a bill for remedial action in Salt Lake City filed by Senator Moss of Utah.

We have initiated an effort to put together pertinent documents and will provide these to the Committee as soon as we can.