For example, environmental impact statements are required for uranium mills only in the State of Washington. Colorado requires an environmental

report, but holds no hearings on the matter. New Mexico also requires an environmental report and provides for public notice. Texas provides for public hearings on licensing issues. The NRC, of course, requires full licensing and environmental reviews, public notice, and public hearings. The NRC is also required to prepare an environmental impact statement for mills on federal lands.

In addition, states have greatly differing standards for the regulation of mining and mill wastes. Arizona has no mined land reclamation act. The State Department of Health has authority over solid waste but its regulations do not address mine or mill wastes and the Department has not attempted to enforce regulations against mines or mills. Arizona has recently passed

a law providing for state jurisdiction over uranium mill tailings and liability. The law does not provide for regulation of disposal practices, environmental review, review by any agency other than the State Atomic Energy Commission, or public participation. Colorado on the other hand, has jurisdiction over mine and mill tailings under regulation by the State Board of Health. These regulations include design and operation of tailings piles as well as health, water and air restrictions. (See Rocky Mountain Law Institute, "Dumps and Tailings, Reeves and Alfers, 23;419-549, 1977.)

HR 13649, as noted in the introduction, contains several significant changes which address these problems. The Environmental Policy Center supports

in substance the procedural licensing reforms provided in that bill.

At issue here, Mr. Chairman, is the establishment of a comprehensive program to deal with a major health and environmental problem.

We do not

find that even when taken together the remedial and licensing bills before you establish such a program. Neither of the licensing bills, for example, provide any guidance on the application of tailings disposal regulations

retroactively to existing mill tailings piles. While the remedial legislation addresses the problems of a number of inactive sites, these contain only 23 million tons of tailings which is 2 million tons less than presently piled at the largest operating mill. The inactive sites contain substantially less than the 115 million tons at all presently licensed mill sites.

Retroactive application is very important lest we lose the protection

of the public between the abandoned tailings and the future licensed piles In fact, there are cases where this will happen given the existing legislative options. At the Edgemont, South Dakota site for example, the mill is presently under license but inactive. It is not covered in the remedial bill and its treatment under the licensing bills is questionable.

A second case is the Ray Point site which is not covered under either legislative solution since it is inactive but did not sell under government contract, and is not licensed. In addition, there are some thirty sites including Middlesex, New Jersey where tailings were used in construction as well as the DOE-owned mill at Monticello, Utah and Manhattan Project uranium wastes which are not covered under the remedial legislation. The DOE has argued that it is

acting "compassionately" and that when it decides what to do about the other sites it will request additional authority.

Mr. Chairman, the difficulty

with compassionate responsibility is that it allows the good samaritan to be compassionate at his convenience.

one hundred and fifteen new mines or expansions and eighteen new mills

planned for eight western states.

Interim standards may be necessary to assure

an orderly expansion of uranium operations. Such standards should limit the proliferation of mills and mill tailings disposal sites.

Finally, it is important to stress again the magnitude of the problem, not just of uranium mill tailings, but of other radioactive ores and tailings

as well, both at mines and mills. We believe that the Environmental Protection Agency should provide the basic guidance and criteria for these hazards consistent with its authority under RCRA and complementary authorities. In the case of

uranium tailings, additional control measures need to be implemented as part of NRC's uranium mill licensing authority, but this should not displace EPA's broader authority.

Thank you.

This concludes my prepared remarks.

Mr. DINGELL. Thank you very much.

You have given us a very helpful statement.
The Chair recognizes counsel, Mr. Finnegan.

Mr. FINNEGAN. Are you recommending a financial assistance program for all of these other sites that-DOE has said they are looking at other sites, other than the 22 they have identified initially-are you suggesting that we delay legislation pending that review and come up with a broader

Mr. BERICK. I am suggesting that the whole notion of a compassionate program for remedial action be revised.

I think that we are choosing to address a few sites which may not be the most serious sites from a health and safety standpoint, but we are addressing a few sites because it appears that the Department of Energy-in this particular case it is easiest to make a case that there might be some Government responsibility—but we are not addressing the issue in an orderly fashion and the major issue that we are not confronting is the responsibility.

As a matter of fact, these 22 sites that we are picking out have been chosen on the basis of their respective financial conditions under their contracts with the Government, and not for any particular reason as to the imminent danger of public health and safety. And we now have a whole variety of other sites that are not being addressed at all.

Now, I am not suggesting that that financial program be extended to those at this time. I think what I am suggesting is that the legislation that provides for the kinds of sites that are to be addressed in the financial program be tightened up, that there be much tighter controls over those criteria which at the moment are very loose and apply only to those particular sites.

I think that has to be revised to provide some kind of test other than whether you have a government contract to provide uranium.

Mr. FINNEGAN. Would you agree that the bill ought probably not identify specific sites, and, two, that DOE ought to set some priorities based on health?

Mr. BERICK. Yes, absolutely.

Mr. FINNEGAN. The third point is: Do you agree that as far as financial assistance, the Government's so-called responsibility or financial assistance to get something to correct the so-called inactive sites ought to be limited at least to those cases where there was some Federal involvement, if only a Federal contract to purchase the uranium?

I am not sure of what you are saying. Do you contemplate that if there are inactive sites where the entire production was a commercial production, that the Federal Government ought to, such as the one in Texas you referred to, would you contemplate that the Federal Government ought to pick up a 75-25 share of that?

Mr. BERICK. I am afraid that is the situation. My suggestion is that the Attorney General take these companies to court and try to collect what damages and costs that you can. I think that is a very difficult area. I am reluctant to say that we ought to sit and wait until we run through the entire judicial process before we begin to go into some of these sites. We have waited many, many years too long as it is.

Mr. FINNEGAN. Earlier the NRC agreed that the bill ought to provide for some determination of responsibility by the people that own the sites. But aside from that issue, is there anything in your judgment that requires the Federal Government to pick up the cost of sites where there was no Federal involvement in the first instance?

Mr. BERICK. You have two situations: One, you have the situation where these mills were licensed by the Atomic Energy Commission, and to the extent that the Commission was negligent in insuring that the mills were shut down with some kind of requirement that they be terminated in a safe condition, I imagine that there is government responsibility.

Mr. FINNEGAN. That is assuming that there is in fact some sort of negligence?

Mr. BERICK. Yes, I am assuming that.

Mr. FINNEGAN. That is a big assumption. I don't know when some of these sites were shut down, but that is a large assumption. Mr. BERICK. Yes, but aside from that, aside from that issue, I don't believe that the Government has any direct responsibility to clean this up.

Mr. FINNEGAN. Have you got any specific suggestions or amendments to H.R. 13650, either title I or title II, and if so, we would appreciate it if you would supply them for the record in the next couple of days.

So get in touch with us so we can see where we are.

Mr. BERICK. I will be happy to.

[The information requested was not available to the subcommittee at the time of printing.]

Mr. FINNEGAN. That is all.

Mr. WARD. Under a fixed price contract, the Government would have paid the cost of fixing it up initially?

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Mr. BERICK. Yes, they would have. Are you talking about a costplus contract?

Mr. WARD. Yes.

So from that standpoint, could you not see industry's distress with the contract now being over and a new cost that was not included in the payment to them being added onto them? I mean, if they negotiated the contract today, that cost would be in there, hopefully. And the Government would wind up paying for it.

Mr. BERICK. Part of the situation that was mentioned earlier today in the case of TVA is that these mills were shut down not necessarily because the company could no longer operate the mills. In many cases, as in the case of Union Carbide, they retained ownership of the land, ownership of the mill, and ownership of the pilings.

I think without evidence that they really did not intend to resume operation, that they really had invested the money to begin with only to fulfill those Government contracts and only for whatever limited period of time that those contracts were in effect, then your argument might hold. But I think you would be hard pressed to prove that point.

Mr. WARD. Is your argument on the regulation side that tailings are a generic problem and it makes little sense to segregate out uranium milltailings?

Mr. BERICK. Yes. There doesn't seem to be much point in launching into the kind of regulatory program we are talking about in uranium tailings when you have a situation that may be substantially worse, for example, with phosphate tailings. Those tailings and those phosphate operations, many of them are in the eastern population concentration. With uranium it is a generic problem. Mr. WARD. I am not disagreeing. There isn't a regulatory structure over phosphates outside of EPA now.

Mr. BERICK. That is true, but the issue, I think, here is whether we are going to recognize that there is a severe problem with radioactive wastes. I think that your discussion this morning with EPA, the record will show that things are not all that they could be down at the mall. I think it is important to realize that just dealing with one particular aspect of the problem is a long way from doing the job that needs to be done.

I would urge the committee to keep that in mind and to structure the legislation to strengthen the overall approach to radioactive tailings, both at mills and mines.

Now the NRC, as they have just testified, does not control mine waste, and does not intend to. We are again faced with a situation of having to rely on RCRA and the EPA to do that.

Mr. WARD. You are not recommending that the NRC regulate phosphate?

Mr. BERICK. No; not at all. I have some other questions about the NRC's ability to regulate the nonradiological hazards, the mill wastes and the heavy metals and others, that present a problem in those tailings.

Mr. DINGELL. Mr. Berick, we thank you very much for your assistance to the committee. You have made some fine points which we will keep in mind as we proceed with our drafting. If there is no further business to come before the committee, the committee will stand in adjournment until the call of the Chair. The following statement and letters were received for the ord:]