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NINETY-FIFTH CONGRESS

ROOM 3204
HOUSE OFFICE BUILDING ANNEX NO.:

PHONE (202) 225-1030

CONGRESS OF THE UNITED STATES

HOUSE OF REPRESENTATIVES

JOHN D. DINGELL, MICH., CHAIRMAN
RICHARD L. OTTINGER, N.Y. CLARENCE J. BROWN, OHIO
ROBERT (BOB) KRUEGER, TEX. CARLOS J. MOORHEAD, CALIF.
PHUP R. SHARP, IND.

JAMES M. COLLINS, TEX.
ANTHONY TODY MOFFETT, CONN. W. HENSON MOORE, LA.
BOD GAMMAGE, TEX.

DAVE STOCKMAN, MICH. JOHN M. MURPHY, N.Y.

EOWARO R. MADIGAN, ILL.
DAVID E. SATTERFIELD WI, VA. SAMUEL L. DEVINE, OHIO
TIMOTHY E. WIRTH, COLO.

(EX OFFICIO)
ANDREW MAGUIRE, NJ.
MARTY RUSSO, ILL.
EDWARD J. MARKEY, MASS
DOUG WALGREN, PA.
ALBERT GORE, JR., TENN.
MARLEY O. STAGGERS, W. VA.

(OX OFFICIO)

SUBCOMMITTEE ON ENERGY AND POWER

OF THE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE

WASHINGTON, D.C. 20515

October 17, 1978

The Honorable John F. O'Leary
Deputy Secretary
Department of Energy
Forrestal Building
1000 Independence Avenue, S. W.
Washington, D. C. 20585

Dear Mr. O'Leary:

Thank you for your October 10, 1978 letter advising me of Senator
Hart's concerns about the Federal funding level in H. R. 13650, the
"Uranium MIll Tailings Radiation Control Act of 1978".

As you know, the bill was enacted without any "cap" or additional
funds for the State of Colorado. Our Subcommittee and Committee strongly
objected to such a cap during consideration of this legislation. Indeed,
I was quite surprised by your letter because it implied that the Admin-
istration would agree to such a cap. In our judgment, that was too
great a price to pay for the legislation.

Our Subcommittee expects to maintain continuous oversight over this
legislation. We are particularly concerned about the adequacy and ef-
fectiveness of the remedial action program from a long-term standpoint.
We expect that the Department of Energy and the Nuclear Regulatory
Commission will move with caution in order to ensure that the purposes
of the Act are achieved at the least cost to the United States. We
expect that the DOE will keep our Subcommittee continuously informed
about the actions it takes, and plans to take, under the Act and about
any problems encountered by the DOE.

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John D. Dingell
Chairman

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Mr. DINGELL. The Chair recognizes our first witness, Hon. Joseph M. Hendrie, Chairman of the Nuclear Regulatory Commission, and then Dr. William D. Rowe, Deputy Assistant Administrator for Radiation Programs, EPA.

We will recognize first Chairman Hendrie.
Gentlemen, we thank you for being here.

STATEMENT OF JOSEPH M. HENDRIE, CHAIRMAN, NUCLEAR

REGULATORY COMMISSION, ACCOMPANIED BY CARLTON STOIBER, ASSISTANT GENERAL COUNSEL; CLIFFORD V. SMITH, JR., DIRECTOR OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS; HOWARD K. SHAPAR, EXECUTIVE LEGAL DIRECTOR; WAYNE KERR, OFFICE OF STATE PROGRAMS; AND LELAND C. ROUSE, CHIEF, FUEL PROCESSING AND FABRICATION BRANCH

Mr. HENDRIE. Mr. Chairman, I am happy to have this opportunity to appear again before the Subcommittee on Energy and Power to discuss regulation and disposal of uranium milltailings.

I testified on June 20, 1978, regarding proposals to deal with the disposal of milltailings at inactive uranium ore processing sites. I have been asked to comment today on H.R. 13382, a legislative proposal to amend several sections of the Atomic Energy Act to strengthen NRC licensing and regulation over milltailings. This bill closely tracks a proposed bill originally drafted by the NRC to bring milltailings within the scope of the Commission's direct licensing authority over radioactive byproduct materials.

It is evident that the remedial action proposals which I discussed at my previous appearance here, and the present proposal for clarifying regulatory authority are complementary items of legislation. They address separate but related aspects of the overall issue of how best to manage uranium milltailings, including tailings already generated and abandoned, tailings now being produced at active milling sites, and tailings to be generated during the extensive uranium milling activity which may be expected in the future.

In my testimony of June 20, I discussed at some length the Commission's views on the potential health hazards associated with uranium milltailings piles. I will not, repeat that discussion here, but merely echo the observation I made then that there is a legitimate public concern about how the Federal Government intends to handle the health, safety, and environmental impacts of uranium milltailings.

At present the Nuclear Regulatory Commission regulates the siting and operation of uranium milltailings disposal areas in nonagreement States as part of its licensing and regulation of source material milling under the National Environmental Policy Act of 1969 and the Atomic Energy Act of 1954.

Safety and environmental issues, including issues regarding reclamation and stabilization of tailings disposal areas and the provision of some kind of surety to assure the completion of reclamation and stabilization work prior to termination of the source material license, have to date been resolved in the source material licensing process. However, tailings themselves are not source material or any other material licensable by the Commission. Thus, once the underlying source material license for the uranium mill is terminated, there is no longer a clear legal basis for further Commission regulatory control of the milltailings.

The Environmental Protection Agency can exert regulatory authority over uranium milltailings under the Resource Conservation and Recovery Act of 1976. However, EPA has no authority over the generation of the tailings, the source material milling licensed by the Commission or an agreement State, and so far they have not developed any regulation to implement their authority over the disposal of tailings.

I should perhaps point out that the RCRA does not give any authority whatever to the NRC and consequently the Commission has not been able to base any plans for tailings regulations on the provisions of that act.

Finally, to complete the complicated regulatory picture, in agreement States it is the State in most cases, rather than the Commission, that exercises regulatory control over the uranium milling and tailings.

Given this situation, the Commission began to develop legislation that would fill the gaps and avoid some of the duplication in this regulatory scheme. Such legislation should provide the clear statutory authority needed for the Commission to license directly and otherwise regulate uranium milltailings.

Also, any legislation adopted should bring State regulation of uranium milltailings under the agreement State program established by section 274 of the act.

Agreement States should be required to regulate uranium milltailings within their jurisdiction to at least the same substantive standards required by the Commission for its licensees. Because of the potential need for long-term care of milltailings disposal sites, another desirable objective to be sought would be governmental ownership, either State or Federal, of these areas.

H.R. 13382 approaches these needs by framing a series of amendments to the Atomic Energy Act of 1954. The first section would amend section lle, defining byproduct material, so that uranium mill tailings could be directly licensed, regulated, and controlled as necessary to protect public health and safety in the long term.

It would permit NRC to conduct a complete regulatory program to assure the public that mill tailings are safely contained in a manner that would reduce the likelihood that future remedial action programs will be needed for such regulated sites. The new authority would parallel that already exercised under the Atomic Energy Act over byproduct material as presently defined. The language of the amendment limits the added authority to uranium or thorium ore processing wastes. Thus other wastes, such as those from phosphate ore processing, would not be included.

By defining the radioactive content of uranium milltailings as byproduct material, the proposal would also remove milltailings from the coverage of the Resource Conservation and Recovery Act of 1976 because that act excludes source, byproduct, and special nuclear material from its purview.

This will minimize dual regulation of tailings by EPA and the NRC.

In answer to the subcommittee's question whether this result is desirable, the Commission believes that it is generally desirable to avoid overlapping regulatory authority with its potential for conflicting standards and heavier burdens on those who are regulated.

Since the NRC has authority to regulate the site specific details of uranium millings, it seems appropriate from the standpoint of efficiency and expertise that the NRC should also regulate the treatment and ultimate disposal of tailings which we permitted to be generated in the first place.

In view of the large volume of tailings which milling operations generate, it is important that NRC have clear authority to make arrangements and commitments for their disposal at the start of operation rather than leaving the problem for EPA to address after the tailings have been generated. The EPA would establish ambient environmental radiation standards for this new class of byproduct material under Atomic Energy Act authority transferred to EPA under Reorganization Plan No. 3 of 1970.

As I noted earlier, EPA has not exercised its authority over mill tailings under the RCRA. The proposed legislation would not affect EPA's authority under the RCRA other than as to the limited class of new byproduct materials. Therefore, EPA would continue to possess regulatory authority over other toxic or hazardous chemicals other than in tailings.

As to the regulation of nonradiological hazards associated with tailings, NRC has adequate authority under the Atomic Energy Act and NEPA to regulate source, special and byproduct material with respect to nonradiological but still hazardous characteristics.

In exercising the authority which H.R. 13382 would create, NRC will consult with all interested Federal and State agencies, including EPA, to assure that a consistent pattern of regulation over milltailings is achieved. The new authority would enable the Commission to continue its regulatory oversight after mill operations have ceased.

This oversight is needed to insure that the long-term consequences of its prior licensing do not pose a threat to public health and safety. Because the radioactive materials of major concern will be licensable, the NRC, or an agreement State, would exercise continued oversight over the tailings disposal area whether under a specific license or not as part of its normal regulatory function.

At this point I would like to note some specific provisions of H.R. 13382 which should be remedied in drafting a revised and comprehensive milltailings control bill. The new definition of byproduct material contained in H.R. 13382 is linked to the Commission's definition of source material, now codified at 10 CFR 40.4(h). This definition excludes ores containing one-twentieth of 1 percent (0.05 percent) or less of uranium or thorium from the source material category.

The Commission is informed that there are a few mills currently using feedstock of less than 0.05-percent uranium. As high-grade ores become scarcer, there may be a greater incentive in the future to turn to such low grade materials.

Since such operations should be covered by any regulatory regime over milltailings, the Commission would suggest that the definition of byproduct material in H.R. 13382 be revised to include tailings produced by extraction of uranium or thorium from any ore processed primarily for its source material content.

Mr. DINGELL. I am curious about why you include in that the word “processed” primarily for source material content. There are other ores that are being processed that do contain thorium and uranium in amounts and I assume equal in value to those you are discussing here.

Is there any reason why we ought not give you the same authority with regard to those ores?

Mr. HENDRIE. Mr. Chairman, the intent of the language is to keep NRC's regulatory authority primarily in the field of the nuclear fuel cycle. Not to extend this out into such things as phosphate mining and perhaps even limestone mining which are operations that do disturb the radium-bearing crust of the Earth and produce some exposures but those other activities are not connected with the nuclear fuel cycle, EPA is looking at those and those appear to me to be things that ought to be left to EPA regulation under the Resource Conservation Recovery Act and general authorities.

Mr. DINGELL. Your thesis is that we ought not however set up a set of circumstances where we would leave some of these to fall between the cracks and wind up being unregulated.

Mr. HENDRIE. I agree fully, Mr. Chairman, and I believe the way the language would cut here, as we recommended, would not leave any crevasse between the two authorities.

Mr. DINGELL. That is my main concern.

Mr. HENDRIE. Section 4 of H.R. 13382 would add a new section to the Atomic Energy Act, section 161x, authorizing the commission to establish regulations to insure funds will be available for decommissioning and decontamination in conjunction with facilities or materials licensed under this act.

We believe section 4 of H.R. 13382 should be modified to state that this regulatory authority deals only with sites, structures, and equipment used in conjunction with milltailings. The intention would be to leave unaltered for now the Commission's existing authority over financial security arrangements for decontamination and decommissioning related to other licensed activities.

I am submitting for the record a supplement which contains a revised text of H.Ř. 13382 containing proposed language changes, a section-by-section analysis of H.R. 13382, as revised, and some additional comments.

Mr. Chairman, this concludes my statement. I shall be happy to try to answer any questions the Committee may have.

[Testimony resumes on p. 364.]
[Attachments to Mr. Hendries' prepared statement follow:]

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