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Mr. FINNEGAN. In other words, you would think that is not a desirable approach, to grandfather?

Mr. HENDRIE. If we do, I think we have to recognize the remedial action program will sooner or later have to be very substantially larger than is now contemplated.

Mr. DINGELL. What you are saying is, the fact you grandfather them doesn't necessarily mean you make them safe and the perils persist.

Mr. HENDRIE. That is right, sir.

In this particular case I am not sure I want to see very many grandfathers.

Mr. DINGELL. I think we concur. I notice Dr. Rowe nods affirmatively also.

Mr. Rowe. I thought perhaps it might be well to put the problem in perspective a bit. The levels of radon at some of these piles are relatively high. When we bring them down to the level that we can no longer measure them above background, which is about this 0.005 working level, twice background, we are talking about relatively high risk. It is 100 times higher than the risk we get from the air pollutants vinyl chloride or benzene which are very carcinogenic and we are talking about a doubling of the lung cancer rate from about 40 out of 100,000 people to 80 out of 100,000 people.

We have found out in the last few years that radon is a very carcinogenic material, and it presents a very serious problem. I think as we have learned more about it we become more and more concerned and I think that is why we feel that the milltailings problem is the biggest waste management problem we have in the radioactive field.

Mr. DINGELL. Thank you.

Mr. FINNEGAN. Are tailings considered waste, particularly since they may be reprocessed?

Mr. HENDRIE. I don't quite know how to answer. I guess they are fairly regarded as waste materials from the milling operation. What we are proposing to do here in the legislation before us is to designate them as byproduct material so that they will fall under an appropriate control and licensing regime, in the Atomic Energy Act.

Once we do that, then they will formally be byproducts rather than waste, if I can put both of those words in quotes.

Mr. FINNEGAN. Is it your intention to provide a one-license procedure covering both the processing of the source material and the disposition of the byproduct materials, or tailings? Counsel has raised concern that you might have two licensing procedures. That is not your intention, I guess?

Mr. HENDRIE. I would think we would want to lay down, when we first talk to a mill operator, or prospective mill operator, about a license for his forthcoming operation, that we would want to lay out for him the sort of stabilization procedures we want on the pile, in particular, because the way to get a well stabilized pile is to start before you have got one and make sure all conditions are correct in the beginning. I think he has to know about those things. They make up an important part of the initial license conditions before he is allowed to produce any tailings.

I would see no need for subsequent licensing proceedings, but let me ask my associates.

Mr. STOIBER. Carlton Stoiber, Assistant General Counsel of the Commission.

We have general authority under 161h of the Atomic Energy Act to consolidate. The language in H.R. 13650, section 209, would provide that we should consolidate to the maximum extent practicable licensing procedures and I would think that would be a suitable way to handle that problem.

Mr. HENDRIE. May I ask Cliff Smith of our Materials and Safeguards Office to speak

Mr. SMITH. The intent is to issue one license. At the time the operator comes in we will look at the total problem and it will be just one license.

Mr. FINNEGAN. Is the definition you proposed in the bill on byproducts one that includes uranium mine wastes and, if it does not, should it?

Mr. HENDRIE. A good comment. I see a shaking of heads. I think the experts say no.

Mr. Rows. I think we would agree with that, but I think it is our intention to address those under RCRA.

Mr. HENDRIE. Let me make sure my experts agree with me. It says byproducts materials, means, among other things, under the language we have proposed, the tailings or wastes produced by the extraction or concentration of uranium from anything.

Mr. FINNEGAN. Your intention is not to include mine wastes, I gather?

Mr. HENDRIE. That is a question we should find out about. What was our intention?

I have been reminded of something I should have recalled in the beginning

We don't regulate mines. The mining is regulated by the Department of Labor under other regulations so our definition was drawn to maintain that and to keep us out of the mine-regulating business.

The way we would read the language here in H.R. 13650, our intention would be not to include the mines.

Mr. Rowe. That was also our understanding, but we do intend to look at the mines under RCRA where radium would be a hazardous material under section 3001.

Mr. FINNEGAN. It is my understanding that Labor regulates mines under some statute, but not environmental effects, and that is what we are talking about. That also applies to Interior.

Dr. Rowe, when do you plan to come up with standards as to the mines?

Mr. Rowe. I have with me Mr. Allan Corson, our program manager in the Office of Solid Wastes. He will provide the schedule under which we will come out with our hazardous materials.

Mr. CORSON. We will define “mining wastes” as one of the special waste categories in the regulation package we expect to propose in November under RCRA. We will call for some special management practices for some of these large volume wastes, including mining wastes, under section 3004. Specific mining wastes will be listed as a hazardous waste under section 3001. This will include the wastes from uranium mining.

Mr. FINNEGAN. Dr. Hendrie, what are your views on the Federal ownership of surface and subsurface of millsites at the termination of the license or at the completion of the operation?

Mr. HENDRIE. I think because we are talking about keeping an eye on those piles for a long time and would like to be sure that people aren't going to go in and dig up the pile and use the material for fill or basements or otherwise disturb them, either Federal or State ownership of the sites where the piles are is very desirable.

We have recommended that the legislation point in that direction and we have recommended some language.

Mr. DINGELL. As an additional safeguard, it might be prudent to see that the landlords contain an easement or notice to prospective purchasers or prospective users that this peril exists from the use of the pile. Wouldn't that be an additional safeguard that might be desirable?

Mr. HENDRIE. Well, Mr. Chairman, what we have recommended in the supplemental material, and I believe what is reflected, my understanding is, in H.R. 13650, would be a regime in which the land is either State or Federal owned, or if it is in private hands, the private owner has to have a license from the NRC.

Those are the only three ways under the legislation, I believe those are the only three conditions that the property on which the piles were could exist. So, having an NRC license, being an NRC licensee and have our inspectors come around and poke at you is maybe even better than having easements in the deeds.

Mr. FINNEGAN. You agree though that before there would be any transfer of the site to the Federal Government, or to the State, that the site would have to be stabilized under the license, is that correct?

Mr. HENDRIE. Yes. The intent is to make the entity that operates the mill and presumably derives the financial gain that is to be had there, do the stabilization and pay for it and what then passes on to the State or Federal ownership is an acceptably stabilized site.

Mr. FINNEGAN. The provision is on page 19 of the bill. It discusses ownership of the surface and subsurface. The question I have is, why would you want them to transfer to you the subsurface, particularly when there may be other minerals that somebody might want or could get from adjacent properties?

Mr. HENDRIE. I guess what one has in mind is that you would hate to have somebody have, for instance, strip mining rights on a coal seam beneath your tailings pile and come in and dig it up and cast the material to one side to get to the coal. That is perhaps a pretty farfetched example, but by transferring the subsurface rights, you then vest in the Government control over that whole column of material going down, I guess, theoretically to the center of the Earth, and if, for instance, there was oil under it that you wanted to get out, you could do that without disturbing the tailings pile stabilized near the surface and you could reasonably allow that under license, but you would control it because you would own that land.

I would like to make another comment before the record passes much further away from this point.

I have a note here pointing out to me that H.R. 13650 provides only for the Federal Government to own disposal sites whereas the Commission's proposal had said that in our view it could reasonably go either State or Federal.

Mr. FINNEGAN. What do you do in a situation where the licensees—I am not sure this is the case—both existing or future, has only acquired the surface and not the mineral rights for his operation, for tailings, or, even further, if the licensee only has a lease of the surface. He can't transfer that property.

Mr. HENDRIE. He is not in a position to transfer title unless he is able to go and buy those rights from whoever owns them.

Mr. FINNEGAN. Mineral rights might be pretty expensive.

Mr. HENDRIE. They could indeed be in some parts of the West, I think.

Mr. FINNEGAN. And unobtainable?

Mr. HENDRIE. That is a problem perhaps with certain of the present mill operations. I would think it would be one of the things we would want to look at in the future in licensing new mills to be sure indeed the property on which he was proposing to put the tailings pile in stabilized form was property that was not encumbered and could indeed be transferred.

Mr. DINGELL. Doesn't this pose different problems though, not only in terms of the question of transfer and of mineral rights, but doesn't it impose some problems on us as regards the additional situation where the lease might expire? If you make these licensable materials, the license I assume would run against the mill operator, but would the license run also against the person from whom he had leased the ground on which he was depositing his tailings?

Mr. HENDRIE. I must say I don't know, Mr. Chairman. It is an interesting proposition. There the NRC would be trying to find somebody to lay its license upon and I am not quite sure which one we would get, or both.

Let me ask legal counsel to speak to that.

Mr. SHAPAR. Howard Shapar, Executive Legal Director of the NRC. By making it byproduct material puts it in the mold of the other licensable materials in the act so whoever presently transfers it and uses it, he is usually the person who possesses it and that is the materials license format of the Atomic Energy Act.

Mr. DINGELL. You are saying the license would run against the individual on whose lands the tailings were deposited whether he liked it or not, contemplated at the time of the license. I am not arguing with the logic or morals of this, but I am sure you are going to have some unhappy lessors.

Mr. SHAPAR. As a practical matter, the mill operators, the ones who actually operate the mills, are the ones who are licensed. It has not been a problem up to now.

In terms of the general thrust of your question, remember there are three options, Mr. Chairman.

One is, for the State to license it, it has to be either State-owned land or federally owned land, but under NRC licensing it doesn't have to be owned by the State or Federal Government, in which

case NRC must license it and not the State. So either one of those three options would be available. Whether or not it is State licensed or NRC licensed.

Mr. HENDRIE. I think the chairman's question goes in a little different direction. You can foresee a situation where a mill operator who is an NRC licensee has leased the land on which he has that pile. He has a license from us to have the tailings. His lease with the landowner runs out and the landowner says: "Good, get your pile off my land."

Mr. DINGELL. So he proceeds to use the piles for fill or he proceeds to-

Mr. HENDRIE. As long as we are licensing it, we won't let him upset the tailings and what he is going to do when the landowner tells him to move it, I am not quite sure.

Mr. DINGELL. Isn't the license terminated upon completion of the operation?

Mr. HENDRIE. As we stand at present it is. It would not be under the legislation.

Mr. DINGELL. The license runs against the operator of the mill and not the owner of the ground who has leased the ground for the depositing of the tailings to the mill operator.

Mr. HENDRIE. Yes. In the sense that the mill operator owns the tailings, I guess.

Mr. DINGELL. Does this lead us to some problems or to an anomaly? I am not sure that it does.

Mr. HENDRIE. If we don't have the tailings piles that are established on leased land, but on land that the licensee himself owns unencumbered and thus able to transfer under the legislation, we will not have a problem. I am curious whether anybody knows if we have any in that situation. Let me poll the experts.

Mr. ROUSE. You have raised a difficult question with existing mills. We have a situation now where a proposed mill is not yet constructed and the proposed operator of the mill has leased the land from a rancher. In our draft environmental statement, perhaps anticipating, we recommended that the operator of the mill purchase the land that the mill sat on as well as the tailings disposal area.

We understand at least right now the ranch owner is reluctant to sell the land.

Mr. HENDRIE. Are there any of the licensed mills that are on a leased basis?

Mr. ROUSE. Yes; I believe so.

Mr. HENDRIE. What we might do is just supply a short note for the record because it will take a little looking up to determine. Apparently there are some licensed mills that are active now that are in this leased-land situation. [The following material was received for the record:]

LAND STATUS OF ACTIVE URANIUM MILLS The attached listings of NRC Licensed Mills and Agreement State Licensed Mills include information available to the NRC staff on the status of land ownership of the site of the mill and mill tailings.

“Private/Company” indicates the land is owned by the licensee. In the case of the Rocky Mountain Energy Company, some of the land of interest is sub-leased from the State of Wyoming (primary lease from the State held by a local rancher) and some of the property is U.S. Forest Service land.

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