22 ELR 10052 | Environmental Law Reporter | copyright © 1992 | All rights reserved

Naturally Occurring Radioactive Material: Regulators Should Look Before They Leap

Editors' Summary: The Atomic Energy Act does not regulate a variety of substances that occur routinely in nature or that may become radioactively enhanced through human activity. These substances, known as naturally occurring radioactive material or NORM, may exist in waste produced by key industrial activities involving petroleum, natural gas, geothermal energy, water treatment, and mining. The NRC, EPA, and some states are now attempting to regulate some of the hazards that they perceive are caused by NORM.

The authors first discuss the scientific aspects of NORM. They note that in a world bathed in radioactivity from natural sources, regulating potential risks from this radioactivity poses questions far different from those arising from environmental contamination solely due to human activities. They next discuss the regulatory efforts that have been made by the NRC, EPA, Texas, and Louisiana to control possible NORM hazards, and examine model state regulations drafted by the National Conference of Radiation Control Program Directors. They find that although huge amounts of NORM are being generated, the actual extent of radioactive hazards from these materials has not been fully verified. They recommend that the extent and nature of the NORM problem be studied further before federal and state governments adopt regulations to address potential NORM hazards. Next, they suggest that attempts to regulate NORM using regulatory programs designed to deal with other environmental problems, such as hazardous waste or nuclear waste from the nuclear power industry, should be abandoned. The authors urge that any NORM program be tailored to the NORM problem and that NORM regulations not be adopted as part of another regulatory program.

Anthony J. Thompson is a partner in the Washington, D.C., office of Perkins Coie and co-ordinator of the firm's national environmental and natural resources practice.

Michael L. Goo is an associate in the Washington, D.C., office of Perkins Coie and concentrates in environmental law. The authors would like to thank Donald C. Bayer and Nancy W. Benning for their assistance in preparing this Article.

[22 ELR 10052]

For more than a decade, federal and state regulatory agencies, including both the Environmental Protection Agency (EPA) and the Nuclear Regulatory Commission (NRC), have been aware of the potential occupational, public health, and environmental risks posed by radioactive materials that are not regulated under the Atomic Energy Act.¹ Among these substances are a variety of materials that occur routinely in nature and may become radioactively enhanced through human activity. These materials have become known as naturally occurring radioactive materials or NORM.² The NRC, EPA, and some states are now moving, to varying degrees, to regulate and control potential NORM hazards.

The emerging NORM debate may well become yet another major battleground in the environmental regulatory arena. NORM is ubiquitous in the environment, and key industrial activities involving petroleum, natural gas, geothermal energy, water treatment, and mining generate substantial quantities of waste materials containing NORM at elevated levels. Without thorough study and consideration, the financial, administrative, and other impacts of any regulatory "solution" to perceived NORM problems may be substantial, widespread, and unjustified.

Federal and state agencies are already responding to these perceived NORM risks. EPA recently commissioned a major study of the NORM problem and has released draft regulations aimed at some NORM wastes.³ The National Conference of Radiation Control Program Directors (CR-CPD) has released proposed model state rules for the control of NORM in its Model State NORM Regulations.⁴ States such as Texas⁵ and Louisiana⁶ have issued proposed and final NORM rules, respectively.

Public awareness of NORM is also growing. A front page story on NORM appeared in the New York Times on December 3, 1990, stating that "[r]adium has been found in every oil producing region of the country, from Alaska to Florida."⁷ Moreover, according to the article, oil/water mixtures from oil production wells have been [22 ELR 10053] found to contain "radiation levels five to 30 times higher than the Government allows to be released from nuclear power plants," and "in contrast to the heavily regulated nuclear power industry, where emissions are strictly controlled and workers heavily protected, radiation in the petroleum industry has been wholly uncontrolled."⁸ Other recent articles on NORM in the New York Times stated that "EPA has found that radiation levels in natural gas are high enough to cause 15 cancer deaths annually among the millions of people that use natural gas for cooking and heating,"⁹ and "many radiation control experts have come to believe that naturally occurring radiation from industries other than the nuclear industry may be the largest source of avoidable radiation exposure in the United States."¹⁰ Although these alarming statements have not yet been fully verified, they are evidence of the increasing scrutiny of potential NORM risks.

The potential volume of waste containing NORM is staggering, because "[a]ll soils and rocks are known to contain some amounts of naturally occurring radioactive material."¹¹ Depending on how far agencies intend to extend their controls over NORM, everything from major industrial operations, to farming, excavating, and even production and distribution of certain food stuffs could be affected by NORM regulations.

The question of what the appropriate limits of such regulation are remains entirely unanswered. Nor is this question unique to the NORM context. Regulators are increasingly confronted by difficult choices regarding the most effective use of scarce environmental protection resources. Because NORM is truly ubiquitous, this dilemma comes into sharp focus. How far should NORM regulation extend? To what extent are the risks associated with NORM unavoidable? Which risks present the greatest potential health hazard and which are reasonably susceptible to control? How can we justifiably distinguish between artificially enhanced radiation and natural background radiation where the radioactivity levels are the same? These questions must be fully answered before intelligent decisions regarding regulation of NORM can be made.¹²

What is NORM?

Sources of NORM

Radiation is everywhere. Contrary to popular perception, radiation is not solely the result of twentieth century human manipulation of atomic energy. In the words of Dixy Lee Ray, former chairman of the NRC, "we live in a radioactive world — always have, always will."¹³ The Sun itself is an immense source of radiation, and natural radioactivity occurs everywhere on Earth, primarily in elements such as uranium, thorium, radium, potassium and the noble gas, radon. People receive radiation exposure from the air, water, soil, and even radioactive potassium in their own bodies. In fact, the average person is exposed to approximately 15,000 particles of radiation per second for his or her entire life. As the Federal Radiation Council noted in 1960:

It is important in considering both the benefits and hazards of radiation to appreciate that man has existed throughout his history in a bath of natural radiation. This background radiation, which varies over the earth, provides a partial basis for understanding the effects of radiation on man and serves as an indicator of the ranges of radiation exposures within which the human population has developed and increased.¹⁴

Similarly, EPA has noted that

man's usual environment, the surface of the Earth, is continually being bombarded by cosmic radiation … [and that] … the ionizing radiation dose received from the ambient environment is … composed of three parts: 1) cosmic radiation, 2) worldwide radioactivity and 3) terrestrial radioactivity.¹⁵

Thus, in assessing the impact of public exposure to NORM, natural background exposure must be considered. As the National Council on Radiation Protection has stated, "maximum permissible doses for the general population should be related to the average natural background level of radiation."¹⁶ Therefore, since there have been no statistically discernible adverse health effects from background or its variations during the course of human existence, insignificant increments to background or its variations will not pose a significant threat to public health.¹⁷

Two types of radiation exist: ionizing and nonionizing. Ionizing radiation is energy released during the decay of unstable atoms and is characterized by the presence of ionized particles that can disrupt cellular processes, thereby [22 ELR 10054] potentially causing such adverse health effects in people as cancer. The concern regarding NORM materials centers around their ability to emit significant quantities of ionizing radiation, including both gamma radiation, which is similar to x-rays, and alpha radiation, which has the highest potential for energy transfer because it is the most densely ionizing. Alpha radiation requires ingestion or inhalation to create significant exposure. Gamma radiation requires close proximity to the source to create significant exposure. Non-ionizing radiation, such as radiowaves and microwaves, is also the subject of potential health concerns but is not emitted from NORM in significant quantities.

Naturally occurring radionuclides include uranium, radium, thorium, carbon-14, potassium-401, polonium-210, and radon-222. Even some food products concentrate these radionuclides, such as Brazil nuts (up to 3 picocuries¹⁸ per gram (pCi/g)) and various other nuts, fruits and leafy legumes (such as tobacco). Radionuclides such as radium and polonium are also used in a variety of commercial applications — such as in watch dials, smoke detectors, and air filters.

While NORM in consumer products is of potential concern, the largest and most recent concern involves waste material containing NORM that is generated by a variety of industrial processes in extremely large volumes. The radionuclide of greatest concern in NORM is radium (either radium-226 or radium-228), which is a decay product of uranium. When ingested, radium concentrates in the bones as a replacement for calcium, where it irradiates surrounding tissue, and may cause cancer. Radium is therefore characterized by radiation health experts as a "bone seeker." Radium decays into radon gas, which in turn decays to "daughter" products that can pose a threat to lung tissues when inhaled. Radium can also deliver a gamma dose to persons in close proximity.

EPA has identified more than 50 specific waste streams that contain NORM wastes.¹⁹ These types of wastes fall into two primary categories: highly active, discrete materials similar to low level radioactive wastes, such as radium needles used in medical applications; and diffuse, generally less active NORM wastes, such as residuals from mining or petroleum production and from water treatment facilities. It is this latter type of less active and more common material that poses the most difficult issues for proposed NORM regulation.

EPA estimates that billions of tons of such waste are produced annually. For example, according to EPA, the metal mining and processing industry alone generates approximately one billion metric tons of waste per year and has already generated nearly 50 billion metric tons of such waste.²⁰ EPA estimates that average radium concentrations in this waste are approximately 35 pCi/g.²¹

Radionuclides are known to be associated with hydrocarbons in nature. Therefore, oil, gas, and oil field brines are also frequently contaminated with radioactivity. These materials then contaminate piping and equipment used to remove and process petroleum and natural gas. EPA estimates that approximately 360,000 cubic meters of such waste are generated annually — amounting to approximately 8.3 million metric tons over the next 20 years. EPA assumes average radium concentrations of 155 pCi/g for these wastes with some concentrations as high as 40,000 pCi/g.²²

NORM has also been found in geothermal wells. EPA estimates that the geothermal industry may generate up to 1.4 million metric tons over the next 20 years.²³ NORM materials are also present in the form of rare earth deposits throughout the United States. Rare earths (such as monazite and irridium) are used in a variety of industrial applications (such as in catalytic convertors for automobiles) and are thus valuable from a commercial standpoint. Nevertheless, rare earth industry wastes also contain elevated levels of radioactivity. In addition, phosphate fertilizer products and coal combustion also generate substantial quantities of NORM wastes with radioactivity ranging from 3.7-8.2 pCi/g of radium.²⁴ Finally, sludges and contaminated resins from the purification of drinking water also contain NORM. EPA estimates that up to 6 million metric tons of drinking water purification materials containing NORM will be generated over the next 20 years.²⁵

From a purely scientific and medical standpoint, no rational difference exists between naturally occurring ionizing radiation sources and the radiation associated with the development of nuclear power. Moreover, human beings are continually exposed to natural background radiation at widely varying levels. Nevertheless, the focus of both public concern and government regulation over the past 50 years has been almost entirely upon sources of radiation associated with the development and creation of atomic energy, rather than upon naturally occurring and background sources of radiation.

To a large extent, however, this focus has been appropriate. Radioactivity associated with nuclear power and the nuclear fuel cycle is both discrete and amenable to control. Radioactivity from the nuclear power and fuel cycle originates and remains distinct from the overall environment.²⁶ NORM, by contrast, arises from the omnipresent radioactivity found throughout the universe and is simply concentrated by a variety of such everyday processes as the purification of drinking water or the crushing of stone for construction material.

At some level, everything is NORM. In fact, even human beings are NORM. Because of this, standards developed for the nuclear power and fuel cycle, which are often set at a fraction of natural background levels, are inappropriate for NORM. Yet, as discussed more fully below, it is pre [22 ELR 10055] these standards that are being used for the creation of NORM regulations.

Regulatory Definition of NORM

In general, NORM has been defined in the negative — through reference to radioactive materials not subject to control under the Atomic Energy Act (AEA). Thus, NORM is frequently described as any radioactive material that is not "source"²⁷, "special nuclear,"²⁸ or "byproduct material,"²⁹ as defined under the AEA. This catch-all definition of NORM is only useful in describing the universe of such materials that could be subject to potential NORM concern and regulation.

Proposed federal regulation (by both EPA and the NRC) has focused on a category of materials that includes NORM and is known as NARM — for naturally occurring and accelerator-produced radioactive materials. This category of materials includes all NORM materials, as well as a variety of materials produced by accelerators and cyclotrons.³⁰ EPA, in its proposed low level waste standards, has proposed to regulate NARM — thereby including NORM as well. Its definition of NARM is the same as the accepted catch-all definition for NORM:

Naturally occurring and accelerator-produced radioactive material or 'NARM' means any radioactive material except those classified as source, special nuclear, or byproduct material under the Atomic Energy Act of 1954 as amended.³¹

"Radioactive material," in turn, is defined as any material that spontaneously emits radiation. Thus, it is apparent that the scope and coverage of the proposed EPA definition is extremely broad. In fact, as explained in EPA's summary of the proposed rule:

In this regulation, NARM wastes are considered a category of chemical substances based upon their common physical property of radioactivity and by virtue of the fact that they are naturally occurring or are produced by particle accelerators. NARM waste is further defined as any material which contains naturally occurring or accelerator produced radionuclides which are not covered by the AEA. This means that any materials which contain radionuclides classified as source, special nuclear or byproduct material, under the AEA, are not considered NARM for the purpose of this regulation. However, all radionuclides are either regulated under the AEA or are NARM.³²

A similar definition is provided for NORM in the Model State NORM Regulations issued by the CRCPD.³³ According to these model state regulations, the term "NORM" means "any nuclide which is radioactive in its natural physical state (i.e., not man-made) but does not include source or special nuclear material."⁵⁴ Significantly, however, these proposed regulations would exempt a number of NORM materials, such as Brazil nuts, building materials, phosphate, potash fertilizer, and potassium compounds.

These catch-all definitions, although helpful in identifying the potential scope of the NARM/NORM universe, are too imprecise and overinclusive to be of much use in any regulatory scheme. By design, most radioactive materials are not subject to the AEA. Therefore defining NORM in the negative, through reference to the AEA, represents a backward approach to the problem. Any regulatory definition of NORM must, at a minimum, take into account the radioactivity of the material, the specific types of hazards it presents, beneficial uses, and the magnitude of potential public exposure. Catch-all definitions are incapable of making such distinctions.

Regulation of NORM

Federal Regulation of NORM

] [ The NRC and NARM/NORM. Although the NRC is generally regarded as the primary federal authority regulating radioactive materials and waste, the NRC does not have jurisdiction over either NARM, including NORM, or NORM alone.³⁵ In fact, not only does no federal agency have exclusive control over NARM or NORM, but overall federal control is incomplete and disorganized at best.³⁶

[22 ELR 10056]

To help bring the issues into focus, the NRC reviewed the NARM situation in 1987.³⁷ This review (the NRC Review) concludes that NARM risks do not currently justify federal legislation. Although the NRC Review does recommend that the NARM issue be referred to the Federal Committee on Interagency Radiation, it suggests that the NRC does not intend to seek legislative authority over NARM.

The NRC Review makes clear the extensive scope of NARM:

As evident from the above, sources and uses of NARM are ubiquitous. NARM is in the environment … in consumer products … in industrial applications … in medical institutions … the Departments of Agriculture, Commerce, Energy, Interior, State, and Transportation, the U.S. Postal Service and the Interstate Commerce Commission also have possible or actual interests in exposures to or commerce in NARM.³⁸

However, the NRC goes on to conclude that:

To be sure, there have been real problems with [NARM], … significant exposures of the public to discrete sources of radium surely occur … [however] … actual inadvertent exposure of people to radium or contamination problems are very infrequent events … [and although] NARM is pervasive in the environment and all facets of life, no clear picture emerges on risks to society given the presence of NARM, with the possible exception of radon.³⁹

According to the NRC, while

[t]he most significant national problem with NARM is radon in dwellings … EPA and other federal agencies and the states already have substantial programs underway for radon … [and] the next most significant national problem with NORM [after radon] concerns radium … [f]irst how to dispose of the discrete radium sources … second … with diffuse sources such as residuals from mining … whether the wastes need to be cleaned up and … whether those waste streams can be used in construction materials,such as wall boards, bricks and roadways.⁴⁰

Because EPA and other federal agencies have jurisdiction over these problems, the NRC concludes that it has no role.

] [ EPA and NARM. EPA has drafted proposed rules⁴¹ that include standards for low level radioactive waste and NARM. In the draft rule, EPA proposes to regulate low level waste (LLW) under the AEA and to regulate NARM under authority of § 6 of the Toxic Substances Control Act.⁴²

The LLW standards would apply to AEA regulated wastes and therefore are not relevant to NARM. The EPA NARM standards, however, would apply to NARM above 2 nanocuries or 2000 pCi/g. These standards would therefore also include NORM above 2000 pCi/g.

In explaining its decision to regulate only NARM above 2000 pCi/g, EPA noted that while higher activity NORM poses hazards equivalent to AEA controlled LLW, by contrast,

lower activity NARM [NORM] waste such as uranium mine overburden or phosphogypsum waste piles are very different from the AEA LLW … both in terms of concentration and volume. These wastes have very low concentrations of radionuclides and are produced in very largevolumes. Protection of the public health does not require their disposal in a LLW disposal facility. The sheer volume of these materials would make such disposal very impractical. The agency is considering other means of prescribing appropriate controls for these wastes.⁴³

Thus, the EPA rule would not apply to the majority of NORM — although some high concentration NORM could be subject to regulation. Such material might include highly radioactive pipes and pipe scale from petroleum and natural gas extraction, and radiation contaminated resins used to purify drinking water.⁴⁴ The draft EPA proposed rule requires a shipping manifest for transportation of regulated NARM and requires it to be disposed of in a LLW disposal facility.⁴⁵ Although the draft EPA rule on LLW and NARM is informally available, it has not yet been published in the Federal Register.⁴⁶

[22 ELR 10057]

Because EPA's proposed low level waste rule would only apply to NARM wastes above 2000 pCi/g, EPA commissioned a study of the lower activity diffuse NORM wastes. A draft of this report (Draft EPA Report) was recently released.⁴⁷ As noted, the Draft EPA Report documents the huge amount of waste containing NORM being generated. In addition, the report contains a preliminary risk assessment for NORM wastes and exposure pathways. The results reveal that for EPA's "critical population group,"⁴⁸ six industry sectors generating NORM allegedly pose an annual (non-radon) risk of cancer of between approximately 1 in 10,000 (1.1 X 10<-4>) to about 7 in 1,000 (6.7 X 10<-3>). These sectors, in decreasing orders of risk, are mineral processing wastes, phosphate wastes, oil and gas scale, coal ash, geothermal ash, and uranium mill tailings. Other hazards include risks of exposure ranging from 2.5 in 10,000 (2.5 X 10<-4>) "for the oil and gas scale/sludge NORM sector to [2.4 in 1,000,000,000 (2.4 X 10<-9>)] for the workers on fields repeatedly fertilized with phosphate fertilizer."⁴⁹

According to EPA, the risk assessment "… suggests that a relatively moderate number of health effects could result from improper use or disposal of diffuse NORM wastes … [and that] … about 30 population health effects could occur from exposures received over the next twenty years."⁵⁰ The Draft EPA Report concludes that "it is worth evaluating the regulatory options that exist to control NORM wastes," despite numerous uncertainties.⁵¹ EPA suggests that in addition to the LLW standards suggested for high level NORM, EPA might also consider use of the Resource Conservation and Recovery Act (RCRA)⁵² for control of NORM as a hazardous waste.⁵³

EPA's assessment of these risks is revealing. For instance, uranium mill tailings, which are ranked as the least significant health hazard, are already the subject of a multi-billion dollar regulatory program. If it is true that other sectors present considerably more significant health hazards, it would appear to commit EPA to further regulatory programs to control these health hazards costing perhaps hundreds of billions of dollars. For instance, under the Clean Air Act,⁵⁴ risks of the magnitude suggested in the Draft EPA Report would clearly require EPA regulations. Yet the Draft EPA Report notes that:

To put these risks into perspective, a lifetime risk of 4.3 X 10<-4> corresponds to an annual dose of 33 mrem and an annual risk of 7.2 X 10<-6> for fatal cancers. This annual risk is an order of magnitude lower than the observed risk of job related accidental death (1.1 X 10<-4>) for workers in all industries in the United States in 1985. An annual exposure of 33 mrem/yr is at the low end of reported exposure rates from natural background radiation in the U.S.⁵⁵

Nevertheless, EPA is still considering regulation of NORM hazards under RCRA. As is apparent, the importance of a defensible risk analysis and its considered use is critical, especially before EPA embarks upon regulatory programs destined to cost tens, if not hundreds, of billions of dollars. An ad hoc approach that lacks such an analysis is simply indefensible. Unfortunately, as discussed below, the current trend in NORM regulation appears to favor exactly this type of catch-as-catch-can regulatory approach.

In addition, EPA's proposal to consider regulation of NORM under RCRA presents significant technical and policy difficulties. EPA's hazardous waste regulations⁵⁶ under RCRA impose requirements upon the characterization, storage, and disposal of hazardous waste that are inappropriate for radioactive waste. For instance, RCRA hazardous waste requirements emphasize frequent sampling of wastes, active controls at disposal units, and use of barriers such as synthetic liners to isolate waste from the environment. However, radioactive waste such as NORM that cannot be perceived by human senses will remain potentially harmful — based on mere proximity — for hundreds and even thousands of years. Thus, AEA requirements for radioactive waste emphasize infrequent waste sampling and handling (in order to minimize worker exposure to radioactivity), use of long-term "passive" controls employing natural materials able to last hundreds of years, and reliance on the entire site as part of the control mechanism to confine releases of radioactive substances within site boundaries. Thus, since the potential hazards are so different, RCRA and the AEA, as one might expect, take fundamentally different approaches to the management and disposal of hazardous versus radioactive waste.

Nor is it normally possible to use both AEA and RCRA technologies together.⁵⁷ For instance, RCRA facilities are designed for and indeed rely upon active leachate pumping to minimize the potential for leachate build-up and migration. Use of a synthetic liner without active pumping of leachate may cause a "bathtub effect," where the disposal unit could become filled with radioactive leachate, posing a risk of a sudden and catastrophic release. Yet active pumping of such leachate necessitates continuing exposure to and release of radioactivity, violating the NRC's fundamental principle of maintaining radioactive exposures "as low as reasonably achievable."⁵⁸

In addition, liners are simply an impractical technology for the massive volume and weight of most diffuse NORM materials. Tailings from uranium mills, which are regulated under the AEA, are disposed in piles of upwards of a hundred acres. These tailings are only a small fraction of the estimated volume of diffuse NORM materials. Synthetic liners are simply inappropriate for a hundred-acre facility containing millions of tons of waste. Thus, regulation of [22 ELR 10058] NORM under RCRA would represent an ill-advised and procrustean approach to the NORM issue.

State Regulation of NORM

] [ Model State NORM Regulations. In addition to the ongoing efforts at the federal level, the CRCPD has issued model state regulations for the control of radiation.⁵⁹ These regulations are intended to apply to

any person who engages in the extraction, mining, beneficiating, processing, use, transfer or disposal of NORM in such a manner as to technologically alter the natural sources of radiation or their potential exposure pathways to man. The regulations in this part address the introduction of NORM into products in which neither the NORM nor the radiation emitted from it is considered to be beneficial to the products.⁶⁰

Under the Model State NORM Regulations, a general license is issued to mine, possess, extract, receive, own, use, process, and dispose of NORM without regard to quantity. However, facilities and equipment contaminated with NORM in excess of specified levels may not be released for unrestricted use by the public. Moreover, the decontamination of such facilities may be performed only by persons holding a specific license to do so. The proposed regulations also contain standards for worker protection and protection of the general public from releases.⁶¹ Finally, the proposal would require⁶² that the disposal of NORM wastes be conducted in accordance with applicable EPA standards, or in the absence of such standards, in a manner equivalent to the EPA standards for the disposal of uranium and thorium byproducts,⁶³ or in a land disposal facility licensed by the NRC or an "Agreement State."⁶⁴

The Model State NORM Regulations prescribe that facilities and equipment contaminated with NORM may not be released for unrestricted use unless they meet specified average, maximum, and "removable"⁶⁵ surface contamination limits for certain radionuclides.⁶⁶ For instance, for radium-226 and -228, facilities must meet average, maximum, and removable surface contamination levels of 100 disintegrations per minute (dpm) per 100 cm², 300 dpm/100 cm², and 200 dpm/100 cm², respectively.⁶⁷

In addition to the average, maximum, and removable surface contamination levels, the Model State NORM Regulations also contain standards for the transfer of land for unrestricted use.⁶⁸ These standards are drawn from the guidelines used by the NRC for release of nuclear fuel cycle facilities for unrestricted use and require that the average concentration of radium in soil be less than 5 pCi/gm above background for the top 15 centimeters of soil (averaged over a 100 square meter area), and below 15 pCi/gm above background for any lower layers of soil.⁶⁹ Although this standard may be appropriate for use at nuclear fuel cycle facilities, the impact of applying it to all land transfers would be both enormous and of questionable utility.

The Model State NORM Regulations contain a number of important exemptions. These exemptions, widespread and numerous, point out the difficulty in determining which NORM materials are appropriate for regulation. For instance, the following materials are already exempt:

* materials contaminated at concentrations of less than 5 pCi/g of radium, 0.05% by weight of uranium or thorium, or 150 pCi/g of any other NORM radionuclide,

* potassium and potassium compounds that have not been isotopically enriched in the radionuclide K-40,

* Brazil nuts,

* phosphate and potash fertilizer,

* phosphogypsum for agricultural uses,

* materials used for building construction if such materials have not been technologically enhanced, and

* natural gas and natural gas products as a fuel.⁷⁰

It is clear that even this list remains incomplete and that additional materials need to be included as the regulations evolve.

In the Model State NORM Regulations, the CRCPD stated that:

The need for a proper and uniform regulatory posture regarding the usages of 'tailings' and other process residues containing naturally occurring radioactive material has been recognized by Federal and State radiation control agencies for several years…. These usages potentially affect every state and the magnitude exceeds that of uranium mill tailings because the millions of tons of these wastes that already exist across the nation far exceed the volume of uranium tailings. These wastes need to be regulated as a radioactive material since their content/concentrations far exceed those that can be considered deminimis….⁷¹

Nevertheless, the model regulations further explain:

The agricultural use of potash fertilizer, phosphate fertilizers, and phosphogypsum is exempt from the requirements of this regulation. The agricultural benefit of using these materials is considered to outweigh the health risks associated with the radiological content of these fertilizers and phosphogypsum. However, it should be noted that long term, continued application of these materials to soil [22 ELR 10059] is expected to result in a buildup in the soil of uranium chain radionuclides, particularly radium-226.⁷²

As is evident from these statements and from the large number of exemptions listed above, the potential universe of NORM is nearly limitless. Many NORM materials are widely used in familiar and important applications. This suggests that more careful study of the NORM problem, including a defensible risk analysis for those materials proposed for regulation, will benecessary in order to distinguish properly between those NORM materials appropriate for regulation and those that are not. In fact, as noted below, some states such as Louisiana and Texas have already moved to regulate NORM prior to performing such an analysis. Furthermore, a more carefully crafted definition of NORM should be drafted that does not function solely by reference to AEA regulated materials. Such a definition would also do much to inform the current debate over the correct standards for those materials that are found to be appropriate for regulation.

Perhaps more important, given the huge volumes of NORM wastes, the CRCPD's proposal requiring that disposal be conducted in accordance with EPA uranium mill tailings standards⁷³ is simply ludicrous. The technical requirements of these standards are dauntingly complex. Imposing them on the thousands of facilities handling and generating high volumes of low activity NORM waste would be an administrative nightmare and a tremendous waste of scarce environmental protection resources.

For instance, under the EPA standards, the NRC is required to perform a complete environmental impact statement at mill tailings sites or to make a finding that an exclusion is appropriate. Calculations for protection against the maximum probable flood and other catastrophic events are required. In addition, land on which low level waste is disposed of must be owned by a state or federal government entity. Applying these requirements to thousands of NORM sites would be unworkable.

The primary known health risk from NORM (apart from radon decay products in dwellings, which is a separate problem) is clearly an occupational health risk posed to workers placed in prolonged or repeated close proximity to such wastes. The health risks to the general public, as noted by EPA, are minimal, nonexistent or less than numerous other risks routinely encountered by virtually the entire population. Where a site-specific risk to public health from NORM can be demonstrated or quantified, some control or regulation may become appropriate. A less discriminating approach threatens to encompass far too large an amount of material without need or reason. As the NRC noted in 1987:

The quantities and concentrations of NARM form a continuum in the human world, and thus the potential hazards of NARM form a continuum, ranging from background to potentially significant ones, in all facets of life. Thus, to the extent that there is a need for centralized controls over those hazards, there is a need for an integrated control program to ensure that the dominant hazards are appropriately addressed without undue attention to the lesser hazards.⁷⁴

A Case Study on NORM Regulations — The Louisiana Experience

] [ The Louisiana NORM Regulations. On September 20, 1989, the State of Louisiana formally adopted its own regulations⁷⁵ for NORM, becoming the first state in the nation to do so.⁷⁶ These regulations are drawn nearly verbatim from the Model State NORM Regulations and promise to be the precursor for similar regulations in other major oil producing states in the country.

Like the model regulations, the Louisiana regulations apply to "any person … [using NORM] … in such a manner as to technologically alter the natural sources of radiation or their potential exposure pathway to humans."⁷⁷ However, the Louisiana NORM regulations also specifically state that they "apply to scale deposits in tubulars and equipment and to soil contaminated by the cleaning of scale deposits," and that "[t]his chapter also addresses waste management, transfer and disposal with regard to both inactive and active sites and facilities involved in storage and/or cleaning of tubular and inactive equipment."⁷⁸ Thus, a primary purpose of the Louisiana regulation is to regulate contaminated pipes, equipment, and sludges from oil and gas extraction.

The Louisiana regulations differ from the Model State NORM Regulations in a few important respects. Perhaps most significantly, the Louisiana regulations prohibit the release of contaminated facilities and equipment for unrestricted use unless the "maximum radiation exposure level does not exceed 50 microroentgens per hour at any accessible point."⁷⁹ NORM materials emitting less than this level are exempt from the Louisiana regulations.⁸⁰ This standard is presumably intended to replace the 25/75 millirem standard for protection of the general public found in the Model State NORM Regulations.

The Louisiana regulations contain the same list of exemptions as the model regulations, but also exempt crude oil, crude oil products, and produced waters from crude oil and natural gas production.⁸¹

The Louisiana NORM regulations continue to be reviewed. Louisiana is considering lowering the 50 microroentgens per hour standard for equipment and clarifying the regulation to make clear that this standard does not apply to contaminated soil.⁸²

] [ Implementation of the Louisiana Regulations. In large part, the Louisiana NORM regulations have had the effect of "freezing in place" all current NORM subject to regulation [22 ELR 10060] in Louisiana. In other words, although the NORM regulation has had the effect of making clear that these materials can no longer be discarded or managed simply as industry sees fit, the more difficult problem of how to manage and dispose of these wastes realistically remains unanswered. In fact, Louisiana's NORM Regulatory Guide⁸³ acknowledges this fact by stating that:

Waste disposal is one of the most difficult questions to address at the present time, due to the fact that there is only one sitein the United States which accepts diffuse radium waste…. The disposal question is being addressed on a national level, but answers will not be forthcoming in the very near future…. Thus, the NORM holder has only one viable disposal option at the time of this writing and that is to ship the NORM waste to Enviro-Care of Utah…. The next available option is to store the material on site in approved waste disposal drums….⁸⁴

However, the Nuclear Energy Division of the Louisiana Department of Environmental Quality, will

consider any proposal to leave NORM contaminated tubular goods downhole in wells which are to be "plugged and abandoned" in accordance with Office of Conservation Procedures, provided the hole is cased, the tubulars are cemented in place with at least 100 feet of cement above and below, and the disposal is below any potable aquifers in the region. Any such proposal is approved on a case-by-case basis with prior approval required by both the Nuclear Energy Division and the Office of Conservation.⁸⁵

As these statements suggest, the numerous holders of NORM are given very few acceptable NORM management options. They may either ship it at huge expense to the sole NORM facility in Utah, store it indefinitely pending further regulation, or in limited circumstances, seek case-by-case approval for alternative disposal methods.

The Louisiana implementation experience suggests the difficulties of a "regulation first" approach in which inadequate consideration is given to the pragmatic aspects of implementation prior to the decision to control an enormous universe of NORM materials. A very real question exists as to whether Louisiana has bitten off more NORM than it can possibly chew.

Industry Response

The Model State NORM Regulations have been the subject of criticism by major industry representatives. These groups have pointed out that NORM is ubiquitous, that the model state regulations lack focus, that many of the problems identified by these rules are already being addressed, and that the model rules are seriously defective in important respects.⁸⁶

For instance, according to the American Mining Congress (AMC):

Radon-222 is [already] the subject of a federal and multi-state education and testing program…. The largest human enhanced source of radon emissions into the environment is soil tilling probably followed by all forms of construction (buildings, homes, roads, etc.) … [and thus] 'nature often violates Federal radiation standards'…. One federal judge facetiously has suggested that perhaps Florida, Kansas and Colorado would have to be declared hazardous!⁸⁷

Because of the very broad potential application of the Model State NORM Regulations, the AMC suggests that:

Considerably more thought, study and coordination with federal and state agencies as well as with potentially affected industries in the various states is necessary. This is because some states require the adoption of these regulations virtually without modification. The NORM rules themselves provide an extremely broad authority for agencies to impose such license terms as they deem appropriate with very limited restrictions…. Without more guidance and justification for the regulations there will be extremes of interpretation and enforcement.⁸⁸

These comments are echoed by the American Petroleum Institute (API).

As API has previously informed the Conference of State Radiation Control Program Directors, Inc., the phenomenon and implications of NORM in our industry are not well understood at this time. API has undertaken an extensive study to identify the magnitude of the phenomenon and its implications to the petroleum industry and API feels strongly that additional regulations, or proposed regulations, based upon the current lack of data is unwarranted and could be extremely counter-productive. Consequently, API reiterates its position that NORM resulting from petroleum industry activities should not be covered by Part N or at least could be excluded until more information is available.⁸⁹

To this point, these comments do not appear to have been heeded. the CRCPD issued Draft 6 of the Model State NORM Regulations in June 1988, after submission of the API comments. The new draft did not appear to reflect the API comments. Although the AMC recently submitted its [22 ELR 10061] comments on Draft 6, no response or revised draft has yet been forthcoming. Given the depth of AMC and API concern, it is apparent that the CRCPD will be unable to respond substantively to the overall industry concern, short of withdrawing or seriously overhauling its Model State NORM Regulations. In the meantime, of course, states such as Louisiana and Texas have already moved forward with their NORM regulatory programs.

Recommendations

Conclusions about what to do with NORM waste remain, at best, fragmentary and inconclusive. While it seems clear that huge amounts of NORM are being generated, the actual extent of radioactive hazards presented by such wastes has not been fully verified. Moreover, no viable disposal alternative has been identified for the vast majority of NORM wastes. Both the NRC and EPA agree on the need for further study prior to regulation, particularly with regard to diffuse NORM waste. States, however, are already moving to regulate this problem, without any clear picture of its scope or solution. Although significant segments of the industrial sector are now aware of the NORM controversy, widespread recognition of the NORM problem has not yet occurred.

In these circumstances it seems clear that an open-ended, aggressive regulatory program like the Model State NORM Regulations cannot be justified. Instead, careful efforts to assess and ascertain the full extent of the NORM problem need to take place prior to regulation. Moreover, once the NORM problem is fully understood, pragmatic solutions for management and disposal need to be devised.

Given that the amount of these wastes being generated annually may well range into billions of metric tons, usual disposal options simply will not be feasible. Furthermore, at a minimum, any NORM regulation must proceed on the basis of lessons learned by the NRC in its experience in dealing with radioactive wastes under the AEA. EPA's proposal to use the existing RCRA program as a basis for the control of NORM should be rejected. If a NORM solution is warranted, it should be carefully tailored to the hazards NORM presents and should not simply be grafted onto an existing regulatory program, particularly not a program like RCRA, which is neither designed for, nor capable of, management of radioactive wastes.

As a first step in assessing the true extent and hazard of NORM, a credible and impartial party, such as the National Academy of Sciences or the Scientific Advisory Board of EPA, should conduct, in consultation with the CRCPD, the NRC, EPA, the National Council on Radiation Protection and Measurements, the International Commission on Radiological Protection, and any other interested parties, a thorough inquiry into NORM waste issues. This step should certainly be taken prior to any further regulation and before NORM waste issues become the subject of further mischaracterization or exaggeration in the public mind.

1. 42 U.S.C. §§ 2014, 2021, 2022, 2111, 2113, 2114.

2. NORM has also been defined as a subset of materials known as NARM — naturally occurring and accelerator-produced radioactive materials (i.e., materials made radioactive in nuclear accelerators). NARM includes NORM, but NORM does not include the accelerator-produced portion of NARM.

3. 55 Fed. Reg. 16850 (1990) (to be codified at 40 C.F.R. pt. 764).

4. MODEL STATE REGULATIONS FOR THE CONTROL OF RADIATION, PROPOSED RULES FOR PART N REGULATION AND LICENSING OF NATURALLY OCCURRING RADIOACTIVE MATERIAL (National Conference of Radiation Control Program Directors, June 6, 1988) [hereinafter MODEL STATE NORM REGULATIONS].

5. TEXAS DEPARTMENT OF HEALTH, LICENSING OF NATURALLY OCCURRING RADIOACTIVE MATERIALS, TEXAS REGULATIONS FOR CONTROL OF RADIATION (Draft 1, Apr. 26, 1990).

6. LA. ADMIN. CODE tit. 33, § 1401 (1989).

7. N.Y. Times, Dec. 3, 1990, at A1, col. 3.

8. Id.

9. N.Y. Times, Dec. 30, 1990, at A4, col. 1.

10. Id. (emphasis added). In addition to the initial New York Times coverage, the Anchorage Daily News republished the article on December 11, 1990, under the headline Radioactivity Taints Nation's Oilfields (at A1, col. 1), accompanied by an article on the situation in Alaska, entitled Alaska Regulators Caught Unaware (at A1, col. 3). Articles on NORM have also appeared in the Houston Chronicle (Dec. 4, 1990, at C1, col. 1) and in the Baton Rouge Morning Advocate (Nov. 14, 1990, at 1B, col. 1). More recently, the Anchorage Daily News published another story on radioactive testing of used oil field pipe found in playground and fence construction (June 18, 1991, at C1, col. 1).

11. U.S. EPA, DIFFUSE NORM WASTES: WASTE CHARACTERIZATION AND ASSESSMENT ES-1 (Draft, May 1991) [hereinafter DRAFT EPA REPORT] (emphasis added).

12. In the words of EPA Administrator William K. Reilly:

[A]s major new environmental problems arise, I propose we approach them as scientifically as possible, asking: How much do we know? What are the critical questions to which we need answers? Are we organizing to get key information? What do the data tell us about the seriousness of the problem and the magnitude of the appropriate response?

Washington Post, Aug. 20, 1991, at A15, col. 1. According to Reilly, we also need to recall that to equate every incident, every problem with a major risk undermines our ability to focus on the most significant risks. Nothing is 100% safe. Neither are all risks equal.

Id. Although Reilly was not specifically discussing NORM issues, his comments are appropriate in that context.

13. D. RAY & L. GUZZO, TRASHING THE PLANET: HOW SCIENCE CAN HELP US DEAL WITH ACID RAIN, DEPLETION OF THE OZONE, AND NUCLEAR WASTE (AMONG OTHER THINGS) 95 (1990).

14. 25 Fed. Reg. 4402 (1960) (emphasis added).

15. U.S. EPA, RADIOLOGICAL QUALITY OF THE ENVIRONMENT IN THE U.S. 11 (1977).

16. National Council on Radiation Protection, Somatic Radiation Dose for the General Population, 131 SCIENCE 482, 486 (1960).

17. See Sirlin, Current Algebra Formulation of Radiative Corrections in Gauge Theories and the Universality of the Weak Interactions, 50 REVIEWS OF MODERN PHYSICS 573 (1978).

18. A curie is a standard measurement of radioactivity equal to the decay rate of one gram of radium or 37 billion disintegrations per second. Radioactivity is normally measured in fractions of curies, most commonly in picocuries (pCi), which is one trillionth of a curie, or in nanocuries, which is one millionth of a curie.

19. See U.S. EPA, LOW LEVEL AND NORM RADIOACTIVE WASTES (1987). See also DRAFT EPA REPORT, supra note 11.

20. Id. at ES-6.

21. Id. at ES-3, Table ES-1.

22. Id. at ES-3, -5, Table ES-1.

23. Id. at ES-3, Table ES-1.

24. Id.

25. Id.

26. This distinction may become increasingly blurred. The NRC has traditionally regulated low level radioactive waste (such as contaminated rags and debris) generated in the nuclear fuel and power context that does not meet the definition of source, special nuclear, and byproduct material. This material, however, could also be characterized by disposers and generators of waste as NORM in order to avoid NRC waste management requirements. In such a case, such regulatory agencies as the NRC and state agencies would have a difficult time distinguishing between NORM and low level waste.

27. Source material is defined as (i) uranium or thorium or any combination thereof, in any physical or chemical form; or (ii) ores that contain by weight, one twentieth of one percent (0.05%) or more of (a) uranium, (b) thorium, or (c) any combination thereof. 10 C.F.R. § 20.3(a)(15) (1991). See also 42 U.S.C. § 2014(z). Note that any source material of less than 0.05% by weight is exempt from NRC licensing requirements for its use, possession, transfer, storage, or disposal. 10 C.F.R. § 40.13 (1991).

28. Special nuclear material is defined as

(1) plutonium, uranium enriched in the isotope 233 or in the isotope 235, and any other material which the Commission, pursuant to the provisions of section 2071 of this title, determines to be special nuclear material, but does not include source material; or (2) any material artificially enriched by any of the foregoing, but does not include source material. 42U.S.C. § 2014(aa).

29. Byproduct material is defined as

(1) any radioactive material (except special nuclear material) yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nuclear material, and (2) the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content. 42 U.S.C. § 2014(e).

30. Note however that two types of NARM exist: 1) discrete, potentially high activity and low volume NARM, such as cyclotron and accelerator-produced wastes, and 2) diffuse, low activity, high volume NARM, such as residuals from mining activities. The NORM component of NARM can loosely be considered as the latter type of material.

31. U.S EPA, ENVIRONMENTAL STANDARDS FOR THE MANAGEMENT, STORAGE AND LAND DISPOSAL OF LOW LEVEL RADIOACTIVE WASTE AND NATURALLY OCCURRING AND ACCELERATOR PRODUCED RADIOACTIVE WASTE 211 (1989) [hereinafter LLW AND NARM STANDARDS].

32. Id. at 129 (emphasis added).

33. Supra note 4.

n34Id. at N1, § N.3.

35. The NRC's jurisdiction has been limited by statute to materials and processes associated with the nuclear fuel production and utilization cycle (i.e., "source, special nuclear and byproduct material"). In defining these materials, the NRC has deliberately chosen radioactive cut-off points (i.e., 0.05% uranium or thorium for source material) that avoid extending NRC jurisdiction over many NORM and NARM materials. See U.S. NRC, 1987 REVIEW OF NATURALLY OCCURRING AND ACCELERATOR-PRODUCED MATERIALS 1 [hereinafter the NRC REVIEW]. See also id. at 27 ("over the years Congress has chosen not to broaden the AEC/NRC reach into the NARM arena").

36. According to the NRC:

Federal control over NARM is a very old and complex issue. It resurfaces every few years, occasionally in the context of whether there is sufficient rationale to consider having the U.S. Nuclear Regulatory Commission regulate [NARM]…. The direct and short answer to why the federal government has not taken overall jurisdiction of NARM is history…. About 18 federal agencies have an uneven and fragmented role in programs governing exposure to ionizing radiation. Although the responsibility of the federal and state governments have shifted somewhat over time, there has been no explicit decision on what the federal role is — or should be — in protecting the public from exposures to ionizing radiation.

Id. at 1.

37. NRC REVIEW, supra note 35.

38. Id. at 9.

39. Id. at 31.

40. Id. at 32.

41. LLW AND NARM STANDARDS, supra note 31.

42. 15 U.S.C. §§ 2601-2671, ELR STAT. TSCA 003-056. See LLW AND NARM STANDARDS, supra note 31. The proposed standards would be codified at 40 C.F.R. pts. 193 and 763, for LLW and NARM, respectively.

The draft proposed rule defines NARM as "any radioactive material except for those classified as source, byproduct, or special nuclear material under the Atomic Energy Act of 1954, as amended." LLW AND NARM STANDARDS, supra note 31, at 211. Thus EPA's definition of NARM includes all NORM.

43. Id. at 119.

44. EPA has also issued Suggested Guidelines for the Disposal of Naturally Occurring Radionuclides Generated by Drinking Water Treatment Plants (1988). EPA reports that drinking water has been found to contain radium, uranium, radon, and radon progeny. According to EPA, sludges and solvents used to filter drinking water can contain up to 110,000 pCi/g radium. The guidelines suggest that EPA's draft LLW/NARM standards should be followed for disposal of higher activity drinking water filtration wastes.

45. LLW AND NARM STANDARDS, supra note 31, at 212.

46. Since the informal release of EPA's draft rules on LLW and NARM in 1989, NRC Chairman Kenneth Carr has written to EPA Administrator William Reilly to explore the concept of an interagency task force designed to address "differences that have arisen between the two agencies relating to regulatory initiatives of the EPA directed at activities licensed or otherwise regulated by NRC." See Letter from Kenneth M. Carr, U.S. NRC, to William K. Reilly, U.S. EPA (June 21, 1990). According to the NRC, the hazards that EPA seeks to control are, in most cases, subject to effective NRC control.

The draft proposed rules on LLW and NARM are specifically cited as one example of EPA/NRC regulatory conflict. In general, the NRC proposed that EPA should defer to the NRC where no additional benefit would be gained from EPA regulation, or where the NRC modifies its program to achieve the necessary protection. Moreover, EPA should give the NRC the first opportunity to modify its program prior to new EPA regulation.

In light of this proposal and EPA's preliminary indications that it may be receptive to such a task force, official proposal of EPA's LLW and NARM rule may be delayed. Thus, final issuance of such a rule is unlikely to occur during 1991, or even 1992.

47. See DRAFT EPA REPORT, supra note 11.

48. The term "critical population group" is defined as "those individuals who might be exposed to the highest doses as a result of normal activities." Id. at D-1-2.

49. Id. at E5-9.

50. Id. at D-3-10.

51. Id. at E-1-5.

52. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 004-050.

53. DRAFT EPA REPORT, supra note 11, at E-1-5.

54. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA 6-186.

55. DRAFT EPA REPORT, supra note 11, at B-4-21.

56. 40 C.F.R. pts. 260-272 (1990).

57. See, e.g., Letter from Carleton Kammerer, U.S. NRC, to Don J. Wolmendorf, California Department of Health Services (Nov. 27, 1990).

58. 10 C.F.R. pt. 20 (1991).

59. MODEL STATE NORM REGULATIONS, supra note 4.

60. Id. at N1, § N.2.

61. The Model State NORM Regulations contain a standard for the protection of the general public that prohibits releases to the general environment that result in doses in excess of 25 millirem to the whole body or 75 millirem to the critical organ of any member of the public. Id. at N3, § N.12.

62. Id. at N4, § N.13.

63. 40 C.F.R. pt. 192 (1991).

64. Section 274 of the AEA, 42 U.S.C. § 2021, provides the NRC with the authority to delegate its authority to states for certain NRC programs. States with such delegated authority are known as "Agreement States." See also 10 C.F.R. pt. 150 (1991).

65. The amount of removable radioactive material per 100 cm² of surface area should be determined by wiping that area with dry filter or soft absorbent paper, applying moderate pressure, and assessing the amount of radioactive material with an appropriate instrument.

66. MODEL STATE NORM REGULATIONS, supra note 4, at N3, § N.10(d).

67. Similar standards apply for natural uranium, thorium, associated decay products, transuranics (such as thorium-230 and -228), and for miscellaneous beta-gamma emitters.

68. MODEL STATE NORM REGULATIONS, supra note 4, at N3, § N.10(c).

69. See NRC Branch Technical Position Regarding Disposal or Onsite Storage of Uranium Wastes from Past Operations, 42 Fed. Reg. 52061 (1981).

70. MODEL STATE NORM REGULATIONS, supra note 4, at N2, § N.4.

71. Id. at 1 (historical background).

72. Id. at 4 (historical background).

73. 40 C.F.R. pt. 192 (1991).

74. NRC REVIEW, supra note 35, at 5.

75. LA. ADMIN. CODE tit. 33, § 1401 (1989).

76. Louisiana had actually adopted an "emergency rule" for NORM several months earlier (February 20, 1989). The "permanent rule" adopted in September 1989 differed only slightly from this.

77. LA. ADMIN. CODE tit. 33, § 1402 (1989).

78. Id.

79. Id. § 1404 (1989). A roentgen is a measure of ionizing radiation equal to the amount of ionizing radiation that will produce an electrostatic unit of electricity in a cubic centimeter of dry air. A microroentgen is one millionth of a roentgen.

80. Id.

81. Id.

82. Telephone interview with Richard Brackin, Radiation Protection Specialist, Louisiana Department of Environmental Quality, Radiation Protection Division (Nov. 12, 1991).

83. LOUISIANA NUCLEAR REGULATORY DIVISION, DEPARTMENT OF ENVIRONMENTAL QUALITY, REGULATORY GUIDE: GUIDELINES FOR CONDUCTING NORM CONFIRMATORY SURVEYS OF SUSPECTED CONTAMINATION OF LAND AND EQUIPMENT, AND DISPOSAL OF NORM WASTE (1990).

84. Id. at 10.

85. Id.

86. As noted by the American Mining Congress (AMC) in its comments regarding the Model State NORM Regulations:

AMC firmly believes that the wisest choice for the RCPD is to avoid a general 'incorporation by reference' approach and develop rules for specific industrial practices or products identified as posing the greatest potential for actual population or individual exposures. These should be approached in order of seriousness to maximize radiation health protection resources. Because resources are limited, they must be directed towards actions that will produce the greatest reductions in risk or else 'the total amount of harm being prevented would be less than that which could be prevented given a constant application of resources.'

AMERICAN MINING CONGRESS, COMMENTS ON MODEL STATE NORM REGULATIONS 4 (May 1991) (quoting NRC REVIEW, supra note 35, at 3).

87. Id. at 5 (quoting NRC REVIEW, supra note 35, at 6) (citing Johnston v. United States, 597 F. Supp. 374, 389-90, 422 (D. Kan. 1984)).

88. Id. at 4.

89. AMERICAN PETROLEUM INSTITUTE, COMMENTS ON DRAFT 5 OF THE MODEL STATE NORM REGULATIONS 1 (Nov. 1987).

22 ELR 10052 | Environmental Law Reporter | copyright © 1992 | All rights reserved