dress to assure that the solutions we have do not depend on institutional controls indefinitely.

Mr. FINNEGAN. That is good, of course, but we are talking about even in the inactive sites of something happening immediately, and you still have that same kind of institute problem.

Mr. Rowe. Yes, sir, for the remedial actions a number of the methods that DOE tends to use include removing the piles and putting these perhaps in some cases back in the mines or other depressions which would result in solutions which might stand up without institutional controls. This is why we think it so important that the results of these remedial actions be used as we go forward. Mr. FINNEGAN. Dr. Hendrie, in the amendment suggested by NRC and also in the bill, you would amend section 161 of the Atomic Energy Act, which provided for rules by NRC to assure funds are available by the licensee for decommissioning, et cetera. What do you mean by the word "funds," and how would the funds be set aside and held in escrow?

Mr. HENDRIE. I think that would remain to be determined out of a rulemaking proceeding. The Commission would have to establish implementing regulations under this authority, and I think we would want to look at a number of ways, and I don't know whether-let me see if we have some particular financial

Mr. FINNEGAN. What I want to get at here is if you are talking about a bond, that is one thing, but if you are talking about a fund that would go to the NRC, I would think that any funds that come to the NRC would automatically have to go to miscellaneous receipts of Treasury

Mr. HENDRIE. I don't think we are talking about funds that the NRC would collect. Just bonding.

Mr. FINNEGAN. So you are talking about bonds.

Mr. HENDRIE. Yes.

Mr. FINNEGAN. And I assume you mean an adequate bond to cover the cost of cleanup of these tailings at the termination of the license, is that correct?

Mr. HENDRIE. I guess so, yes. That is the purpose.

Mr. FINNEGAN. Do you have any estimate of what kind of bonds you are talking about?

Mr. HENDRIE. Let's see if Lee Rouse can help you.

Mr. ROUSE. The present reclamation cost that we have put in the conditions of some of our NRC licenses, the estimated cost for the reclamation plants, decommissioning, range from $2 to $3 million, up to perhaps $8, $9, or $10 million.

Mr. FINNEGAN. That is what your estimate costs are, and you would have to have bonds for that type of figure?

Mr. ROUSE. Yes.

Mr. FINNEGAN. What is the cost of that kind of bond?

Mr. ROUSE. I can't answer that, sir.

Mr. FINNEGAN. Could you see what you can find out and provide it for the record?

Mr. ROUSE. Yes.

[The following information was received for the record:]

BOND PREMIUMS FOR RECLAMATION OF Uranium MILLTAILINGS

Based upon information available to the NRC staff, annual premiums for bonds for uranium mining-milling firms range in the order of one-half percent up to 2-3 percent of the amount of the bond. Premiums for the bonds are dependent upon the financial status of the firm. As one example, one NRC uranium mill licensee has indicated that the premium on bonds covering mine reclamation and mill tailings reclamation is about $6,600 per year per million dollars of bonding surety. Another NRC licensee indicated that his annual premium at present was about $14,500 for a $3.9 million bond covering mining and mill tailings reclamation.

Mr. FINNEGAN. How many States have agreements with the NRC?

Mr. HENDRIE. Twenty-five.

Mr. FINNEGAN. Are those agreements uniform, and what problems have you encountered with them?

Mr. HENDRIE. They are not all uniform. They are negotiated under the general provisions of section 274 of the Atomic Energy Act with the individual States. They were not all negotiated at the same time or by the same people and obviously it is a different State in each case, and inevitably differences creep in.

The intent in negotiating the agreement is to maintain the provision of the statute that says the regulatory regime in the State must be comparable to that of the NRC or in the old days the AEC. We think the agreement State program has been on balance a great success. It has moved out into local regulatory centers a number of matters which if we had done them from Washington would have required a larger Federal staff and a less localized attention, perhaps. The States have wanted to do these things, and in the agreement the States have either had or developed the expertise to do them, and I think we are very pleased with the program.

That is not to say that we don't have criticisms of some of the State programs. We do, but I think, on balance, it is a good program and was a wise provision.

Mr. FINNEGAN. Does NEPA apply to the licensing done by these States, and do all agreement States prepare EIS's?

Mr. HENDRIE. We have taken the position in a lawsuit in New Mexico that it does not, at least to the extent of requiring an environmental impact statement.

Let me turn once more and see if I get a nod from counsel on that answer.

I am told I have stated it correctly. The case is in process at the moment.

Mr. FINNEGAN. Shouldn't it apply in the case of these licenses? Mr. HENDRIE. Which licenses?

Mr. FINNEGAN. The ones you are talking about here in connection-shouldn't NEPA apply in the connection of licensing by the States under this bill?

Mr. HENDRIE. There is a good deal of discussion on the point, and the Commission will be looking at whether we shouldn't go in that direction. We have already put in place a program to encourage States to do environmental impact statements and to provide technical assistance to them in doing such statements. So although I think our position is that the way the law reads between NEPA and the Atomic Energy Act that the States are not required to do

them, we think it is a very desirable thing, and we have the program in place to provide assistance to them.

Mr. FINNEGAN. But you would do it under your licensing under this bill?

Mr. HENDRIE. Unquestionably.

Mr. FINNEGAN. Why should NEPA be treated differently?

Mr. HENDRIE. Just because of the way the Atomic Energy Act reads, people interpret section 274 versus NEPA as applying Federal action-

Mr. DINGELL. NEPA is very clear. NEPA says that every Federal action which has a significant effect upon the human environment shall be accompanied by an environmental impact statement every step of the process.

Mr. HENDRIE. Right.

Mr. DINGELL. That means if you are going to delegate to the States the process of carrying out functions under this statute, and the functions that would be carried out by the States would require an impact statement if they were conducted by the Federal Government, that then you should either have an environmental impact statement by the States in carrying out their responsibilities delegated by the Federal Government, or you should write an environmental impact statement on the delegation of that responsibility to the State. Because in agreeing NEPA requires your action to be accompanied by an environmental impact statement, you have really agreed that it is a major Federal action having a significant effect upon the human environment.

Mr. HENDRIE. I guess, Mr. Chairman, that will get down to a fine legal point about what a Federal action means, and at this point, I prefer to turn and let one or another of distinguished counsel for the Commission offer an opinion and get myself out of this.

Mr. DINGELL. I want you to know this is a friendly discussion, but I happen to be the author of NEPA and have some sensitivity to seeing it carried out.

Mr. HENDRIE. Let's see if Mr. Shapar can couch a sufficiently artful answer, sir.

Mr. SHAPAR. Should I judiciously give the arguments on both sides?

Mr. DINGELL. You are recognized to give whichever you like. You may give both. I have one I like.

Mr. SHAPAR. On the one theory the argument would run; NEPA only runs against the Federal Government when the Federal Government takes an action.

You mentioned two actions, I think, in your question. One is the actual delegation, if one can call it a delegation, to the States. The argument there, I think, gets more complicated because if the States are to exercise their authority essentially the same way that the NRC exercises it, the net effect of the transfer, or delegation, if you prefer to call it that, is that the States will be taking the same action that the NRC is taking in essentially the same manner and in accordance with the same standards.

So the argument would run that this is not a major Federal action significantly affecting the quality of the human environment because things will be done in exactly the same way.

Mr. DINGELL. But you have to have a site-specific environmental impact statement unless you have a generic one, and you may need the site-specific one even if you do have a generic one, if there is unique character to the site-specific action.

Mr. SHAPAR. You still have to address the special question of whether or not providing a mechanism for allowing the States to make the same decision which the NRC is making today is action which significantly affects the quality of the human environment. The argument on one side would be it is not, and your argument would go the other way. It is a highly controversial matter.

You mentioned something else which I think is a very significant point, and that is when the State issues the license rather than the NRC-this is what is in litigation now-again the argument is on both sides. Since the State is taking the action and not the NRC, it is not a major Federal action, because the State is taking it. This is precisely the issue in litigation in the courts.

One argument is that since the State inherited the authority from the Federal Government because the Federal Government can terminate a program, that it is colored enough with Federal overlay that it can be construed, so the argument would run, as a Federal action.

The other argument is that it is not a Federal action pursuant to a Federal criteria; the matter was turned over to the States, and the States are taking the action and not the Federal Government. I think that fairly portrays both sides of this very controversial and litigated matter.

Mr. DINGELL. You have litigation, and I am not really anxious to get into the Pillsbury questions that occasionally press us here, but if the Federal Government were in its exercise of its responsibilities to carry out exactly the same responsibilities that it delegates to the States, would it not have to prepare an environmental impact statement?

Mr. HENDRIE. It would, and we do.

Mr. DINGELL. Now, don't you then have responsibilities under NEPA, where you engage in this kind of delegation, to see to it that the State carry out that responsibility, and, failing that, don't you have responsibility to prepare an environmental impact statement on the delegation?

Mr. HENDRIE. I guess, as counsel comments, and the stand we have taken in the litigation in New Mexico, I guess the answer is no, we do not.

Mr. DINGELL. I guess we may have to make a change here in the statute, then.

Mr. HENDRIE. Let me say, Mr. Chairman, however we read the law, or differ in our reading of the law, the Commission, I think, is pretty clearly in favor of the view that a documented environmental assessment prepared for these mills would be very helpful in getting all the issues and alternatives out and in helping a good decision to be made by the State. We think that it need not be an environmental impact statement precisely identical to the one that we would produce if we were doing the licensing, but the important environmental aspects, tailings management, and so on, radiological assessments, all of these things should be done, and it might be useful for me to supply for the record the Commission's policy

37-249 O - 79 - 27

statement on technical assistance to agreement States for precisely this purpose on an interim basis, while we consider some of the longer-range policy aspects of this matter.

I would like to submit that, if I could.

Mr. DINGELL. I think that will be helpful, and, without objection, it will be inserted in the record at the appropriate point. [The following material was received for the record:]

[From the Federal Register, Vol. 43, No. 81-Wednesday, April 26, 1978]

ASSESSMENT OF ENVIRONMENTAL IMPACTS OF URANIUM MILLS IN AGREEMENT

STATES

TECHNICAL ASSISTANCE FOR AGREEMENT STATES TO CONDUCT ENVIRONMENTAL

ASSESSMENTS

Summary

As part of its comprehensive program to strengthen public health and safety regulation of uranium mills, the Commission has decided to offer technical assistance to Agreement States, on a temporary, trial basis, to assist them in assessing the environmental impacts of their uranium mill licensing. The program will be an interim one, allowing the Commission to complete other efforts aimed at resolving key, long-term mill tailings problems. The purpose of this statement is to articulate the Commission reasons for this offer of assistance. Background information and an explanation of policy options considered but not selected by the Commission are contained in the Appendix to this statement.

Detailed statement

Section 274i of the Atomic Energy Act authorizes the Commission to provide technical assistance to any State or group of States "as the Commission deems appropriate." 42 U.S.C. 202li. It is our belief that Agreement States which license uranium mills would benefit from NRC technical assistance designed to help the States conduct environmental assessments of their licensing actions.

Our experience is that an environmental review process similar to our own where the significant environmental impacts of a licensing action and its alternatives are documented and circulated for public review will be a useful one. It enhances the quality of licensing decisions by making it more certain that evaluation of environmental impacts by the regulatory agency is objective and independent and that there is full and effective public exposure of the licensing action. We believe the licensing process in Agreement States-most of which do not now prepare "documented' assessments comparable to ours-would benefit from preparation of an independent assessment similar to that conducted by the NRC in non-Agreement States. Specifically, we believe that a documented environmental assessment prepared for each major mill licensing action in Agreement States would be helpful in exploring the issues and alternative courses of action available on each case. This document need not be identical in scope to those prepared for mills licensed by NRC under the atomic Energy Act. However, the assessment, as a minimum, should treat the cost important environmental aspects of milling operations: Tailings waste management and disposal, siting and radiological assessment.

Licensing practices of States must be viewed in terms of their legislative underpinnings as well as the resources and expertise available to the State. After evaluating options available to improve the quality of environmental reviews in Agreement States (see appendix), the Commission has concluded that the most prudent course of action at this time would be to offer asistance to the States. Specifically, the commission will offer assistance to willing States through agreements entered into under the authorities provided by section 274i of the Atomic Energy Act.

The Commission, therefore, has authorized the staff to enter into cooperative agreements with willing States whereby:

1. NRC will furnish technical assistance to the State in reviewing the likely environmental impacts and consequences resulting from the construction or operation of any new uranuim mill and any major modification of an existing mill or any operating mill which may be the subject of a State license renewal application, and any major uranium mill or any operating mill which may be the subject of a State license renewal application, and any major uranium mill tailings disposal activity licensed by the State. This analysis would take the form of an NRC staff report based on envrionmental data furnished to NRC by the State.