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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 11ability 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(8) of H.R. 12535 differs from section 202(e) of Public Law 92-314. Please explain the differences and state the reasons therefor. Why should the states retain ownership of these materials?

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(8) 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.

etc.,

Question 14. Please furnish copies of all letters, memoranda, notes,

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.

ANSWERS TO ADDITIONAL QUESTIONS

POSED BY

JOHN D. DINGELL
CHAIRMAN, SUBCOMMITTEE ON ENERGY AND POWER
HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE

Question 1. Enclosed is a statement of the sites studied by the ERDA contractor and the owners thereof. It indicates that some of these sites are leased by some firms. The ERDA contractor's statement concerning ownership and use of these 22 sites is quite sketchy and does not appear to be current. For example, in the case of the Spook site in Wyoming, the contractor states:

"The Wyoming Mining and Milling Company was the operational
owner of the site which was located on property owned by
Mr. D. Hornbuckle, a nearby rancher. The same person(s)
who owned Wyoming Mining and Milling also owned the parent
company, Western Nuclear, Inc., which is now a subsidiary
of Phelps Dodge Corporation. Western Nuclear, Inc.,
maintains control of the property at present.'

It is not clear whether Western Nuclear is the current title owner or merely controls the site through a lease or other arrangement.

In question 5(e) and (f), we asked for the identity of the site

owners.

We want to make it clear that we want a current ownership status and use of the tailings site, mill site, and other related lands. Also indicate the name of the person or persons in each case who the Subcommittee might contact concerning this legislation.

Answer. With respect to specific ownership of the inactive uranium mill tailings sites, we do not have this information at this time. We have furnished information on the controllers of these sites, but we have not looked into the underlying title. We will be glad to request this information from the property controllers. list of the companies that can be contacted is attached.

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