ML20058K010
| ML20058K010 | |
| Person / Time | |
|---|---|
| Issue date: | 10/28/1993 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| Shared Package | |
| ML20058K006 | List: |
| References | |
| FRN-58FR58657, RULE-PR-40 CCS, PR-931028, NUDOCS 9312140353 | |
| Download: ML20058K010 (35) | |
Text
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[7590-01-P]
NUCLEAR REGULATORY COMMISSION 10 CFR Part 40 RIN 3150-AE77 Uranium Mill Tailings Regulations; Conforming NRC Requirements to EPA Standards I
AGENCY:
Nuclear Regulatory Commission.
ACTION:
Proposed rule.
SUMMARY
The Nuclear Regulatory Commission is proposing to amend its regulations governing the disposal of uranium mill tailings. These changes would conform existing NRC regulations tc proposed regulations published by the Environmental Protection Agency (EPA).
The proposed conforming amendments i
are intended to clarify the existing rules by ensuring timely emplacement of the final radon barrier and by requiring appropriate verification of the radon flux through that barrier. This action is related to another action by EPA to rescind its National Emission Standard for Hazardous Air Pollutants (NESHAPs) for radon emissions from the licensed disposal of uranium mill tailings at non-operational sites.
DATES:
Submit comments by [ Insert a date 45 days after publication].
Comments received after this date will be considered if it is practical to do so, but the Commission is able to assure consideration only for comments received cn or before this date.
9312140353 931102 8
.PDR Pti p
4*/ SBFR32174 PDR Q
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ADDRESSES:
Send comments to:
Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555.
ATTN:
Docketing and Service Branch.
Hand deliver comments to:
11555 Rockville Pike. Rockville, Maryland, between 7:45 am and 4:15 pm Federal workdays.
Examine comments received, the environmental assessment and finding of no significant impact, and the regulatory analysis at:
The NRC Public Document Room, 2120 L Street NW. (Lower Level), Washington, DC.
FOR FURTHER INFORMATION CONTACT: Catherine R. Mattsen, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555,-
telephone (301) 492-3638.
SUPPLEMENTARY INFORMATION:
t.
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Background===
On April 29,1983 (48 FR 19584), EPA proposed general environmental standards for uranium and thorium mill tailings sites licensed by NRC or one of its Agreement States.
Final standards were published on September 30, 1983 (48 FR 45926) and codified in 40 CFR part 192, subparts D and E.
On October 16, 1985 (50 FR 41852), NRC published amendments to 10 CFR part 40 to conform its rules to EPA's general standards in 40 CFR part 192, as it affected matters other than ground water protection.
Both NRC and EPA regulations included a design standard requiring that the tailings or wastes from mill operations be covered to provide reasonable assurance that radon released to the atmosphere from the tailings or wastes will not exceed an i
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average of 20 picocuries per square meter per second (pCi/m's) for 1000 years, i
I to the extent reasonably achievable, and in any case, for 200 years.
Neither the EPA standards of 1983 nor NRC's conforming standards of 1985 established compliance schedules to ensure that the tailings piles would be expeditiously closed and the 20 pCi/m's standard would be met within a reasonable period of time.
Criterion 6 of appendix A to part 40 is a design standard.
Criterion 6 does not require verification that the radon releases meet this " flux standard."
In response to the separate requirements of t'he Clean Air Act (CAA), EPA promulgated additional standards in 40 CFR part 61 (subpart T for non-operational sites) to ensure that the piles would be closed in a timely manner (December 15, 1989; 54 FR 51654).
This regulation applies only to uranium mill tailings and requires, in addition to the flux standard of 20 pCi/m's, that once a uranium mill tailings pile or impoundment ceases to be operational, it must be closed and brought into compliance with the standard within two years of the effective date of the standard (by December 15,1991) or within two years of the day it ceases to be operational, whichever is later.
If it were not physically possible for the mill owner or operator to complete disposal within that time, EPA contemplated a negotiated compliance agreement with the mill owner or operator pursuant to EPA's enforcement authority in order to assure that disposal would be completed as quickly as possible.
Subpart T of 40 CFR part 61 also requires testing for all piles within the facility to demonstrate compliance with the emission limit, as well as specific reporting and recordkeeping associated with this demonstration.
Subpart T was challenged by a number of parties including the American Mining Congress (AMC), the Environmental Defense Fund (EDF), and the Natural 3
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Resources Defense Council (NRDC).
In addition, AMC, the NRC, and others filed an administrative petition for reconsideration of subpart T.
Among the concerns of these parties was the argument that the overlap between EPA's subpart 0 of 40 CFR part 192 (based on the Uranium Mill Tailings Radiation Control Act (UMTRCA)) and subpart T of 40 CFR part 61-(based on the CAA) resulted in regulations that are unnecessarily burdensome and duplicative.
The industry also alleged that subpart T was unlawful because it was physically impossible to come into compliance with subpart T in the time required.
In November 1990, Congress amended the CAA by including a new provision, section ll2(d)(9).
This provision authorized EPA to decline to regulate radionuclide emissions from NRC licensees under the CAA if EPA found, by rule, after consultation with NRC, that the regulatory program implemented l
by NRC protects the public health with an ample margin of safety.
In July 1991, EPA, NRC, and the affected Agreement States began discussions concerning the dual regulatory programs established under UMTRCA and the CAA.
In October 1991, those discussions resulted in a Memorandum of lnderstanding (MOU) between EPA, NRC, and the affected Agreement States.
The MOV outlines the steps each party would take to both eliminate regulatory redundancy and to ensure uranium mill tailings piles are closed as i
expeditiously as practicable.
(The MOV was published by EPA as part of a proposal to stay subpart T on October 25, 1991 (56 FR 55434).) The primary purpose of the M00 is to ensure that the owners and operators of all disposal sites that have ceased operation and those owners and operators of sites that will cease operation in the future effect emplacement of. final earthen cover to limit radon emissions to a flux of no more than 20 pCi/m's as expeditiously as practicable considering technological feasibility. The MOU presents a goal 4
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that all current disposal sites be closed and in compliance with the radon emission standard by the end of 1997 or within seven years of the date on which existing operations cease and standby sites enter disposal status.
The attachment to the MOU lists specific target dates for completing emplacement of final earthen covers to limit radon emissions from non-operational tailings impoundments which were based on consultations with the licensed mill operators.
l In accordance with the MOU, the NRC and affected Agreement States agreed to amend the licenses of all sites whose milling operations have ceased and whose tailings piles remain partially or totally uncovered.
The amended licenses would require each mill operator to establish a detailed reclamation plan that includes key closure milestones and a schedule for timely emplacement of a final radon barrier on all non-operational tailings impoundments to ensure that radon emissions after closure do not exceed 20 pCi/m's.
The licenses were to be amended as soon as practicable, but in no event later than September 1993.
On December 31, 1991, the EPA published three Federal Register notices:
a final rule to stay the effectiveness of 40 CFR part 61, subpart T, as it applies to owners and operators of uranium mill tailings disposal sites licensed by the NRC or an Agreement State (56 FR 67537); a proposed rule to rescind 40 CFR part 61, subpart T, as it applies to uranium mill tailings disposal sites licensed by the NRC or an Agreement State (56 FR 67561); and an advance notice of proposed rulemaking to amend 40 CFR part 192, subpart D, to require that site closure occur as expeditiously as practicable considering technological feasibility and to add a demonstration of compliance with the-design standard for radon releases (56 FR 67569).
The stay of effectiveness-5
of subpart T is to remain in effect until EPA takes final action to rescind subpart T and amend 40 CFR part 192, subpart D, to ensure that the remaining rules are as protective of the public health with an ample margin of safety as implementation of subpart T, or until June 30, 1994.
If EPA fails to complete these rulemakings by that date, the stay will expire and the requirements cf subpart T will become effective.
The stay of effectiveness of subpart T was also challenged. Discussions continued between EPA, the litigants, and the NRC.
In February 1993, final agreement was reached to settle the pending litigation and the administrative L
proceeding, avoid potential future litigation, and otherwise agree to a consensus approach to regulation of licensed non-operational uranium mill tailings disposal sites.
EPA announced the settlement agreement in a notice of April 1, 1993 (58 FR -17230).
NRC was not a signatory to this agreement but agreed in principle with the settlement agreement.
The settlement agreement further defined steps for implementing the MOU.
It called for the NRC to amend its regulations in appendix A of part 40 to be substantially consistent l
with a specific regulatory approach described in the settlement agreement.
It also described actions to be taken by the parties to the agreement which were i
intended to implement the HOU and eliminate further litigation with respect to t
subpart T.
On June 8i 1993 (58 FR 32174), the EPA proposed minor amendments to
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40 CFR part'192, subpart D, to ensure timely emplacement of the final radon j
barrier and to require monitoring to verify radon flux levels (a one-time verification).
In that notice, the EPA stated its tentative conclusion that if those amendments to 40 CFR part 192, subpart D, were properly implemented i
by NRC and the Agreement States to ensure specific, enforceable closure 6
4 schedules and radon level monitoring, the NRC's regulatory program for non-operational uranium mill tailings piles would protect the public health with an ample margin of safety.
The EPA also noted its intent to publish a proposed finding for public comment on whether the NRC program protects public health with an ample margin of safety before taking final action on rescission of 40 CFR part 61, subpart T.
EPA's proposed rule is not intended to change EPA's original rationale or scheme set forth in its 1983 rule.
The EPA proposed rule " seeks to clarify and supplement that scheme in a manner that will better support its original intent."
EPA's proposed rule, and this conforming rule, would require that once a uranium mill becomes non-operational, the final barrier to control radon will be emplaced as expeditiously as practicable considering technological feasibility (including factors beyond the control of the,
licensee).
Setting interim dates for achieving milestones towards emplacement will support and better assure this progress, and post-emplacement determination of radon flux will serve as confirmation that the design of the cover is working as intended.
EPA's June 8, 1993, notice of proposed rulemaking provides a detailed discussion of the rationale for the action and the legislative and regulatory history leading to its proposal.
The Commission notes that the nature of the proposed revisions to 40 CFR part 192, subpart D has been influenced by the settlement agreement.
The settlement agreement included considerable detail concerning the specifics of the regulations that were to be developed.
Apparently as a result of this, 40 CFR part 192, subpart D, as proposed, includes details of implementation such as when public participation in NRC decisions must be allowed, what specific planning aspects must be incorporated into a license, and a specific 7
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measurement method as a standard of adequate verification of radon release levels.
Although the NRC has no problem with conforming with these particular provisions, it is the Commission's view that the inclusion of these implementation details is a special case because of the settlement agreement and does not establish any precedent with regard to what constitutes a generally applicable standard.
l Coordination with Affected NRC Agreement States The affected Agreement States of Colorado, Texas, and Washington were i
provided a draft of the proposed rule at a meeting on July 29, 1993. A brief presentation was made describing the proposed rule.
A copy was also sent to the State of Illinois, which is the State that most recently assumed.
l responsibility for lle(2) byproduct material (byproduct material as defined in section 11e(2) of the Atomic Energy Act), but which has no affected uranium byproduct material licensees.
All four of these Agreement States submitted comments.
The States were in general agreement with the proposed rule and indicated no major problems in implementing compatible requirements.
Response to NRC Agreement State Comments f
Comment.
The licensee should be required to maintain its records pertaining to radon flux verification until site transfer to DOE or the State.
The DOE or the State may elect to obtain such records upon transfer of the site.
Also, all records relating to decommissioning and reclamation should be transferred at this time, i
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Response.
The proposed rule is consistent with this comment.
Previously this approach had been discussed as an alternative to be considered in addition to a five year retention period which would have mirrored the requirements of subpart T.
The rule does not specifically require transfer of all appropriate records to the custodial agency but assures their availability in this case.
Comment.
The 30-day limit for time elapsed between remediation activities should be removed because, in some cases, there can be no real point where one activity ends and another starts.
Response.
This additional timeliness criterion has been deleted in the proposed rule-The NRC agrees that the timeliness requirements are adequate without this provision and that it could create some problems. Although the draft provision contained an exception for factors such as weather, it is recognized that the weather during periods longer than 30 days would routinely
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be expected to preclude certain reclamation activities.
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Comment.
The term "as soon as reasonably achievable" in paragraph (2) i of Criterion 6 should be changed or defined.
Response.
The meaning of this term is discussed in the fifth paragraph of the existing text of the Introduction to appendix A.
It is used consistently in this context.
Comment.
The word " portion" should be deleted from paragraph (3) of l
Criterion 6A. Also, the limitation of not delaying emplacement of the remainder of the final radon barrier should be deleted.
Response.
This provision allows limited disposal during closure as an exception to the definition of ODeration.
If the whole impoundment is involved in waste disposal and no reclamation activities are proceeding, the 9
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i impoundment would be considered operational and continue to be under appropriate requirements for operation.
Note, one site may have both an operational impoundment and a non-operational impoundment with the applicable regulations applying to each.
Also, the suggested changes are likely to violate conformance with the proposed EPA provisions.
Comment.
Why are the implementation time limits in the preamble omitted from the rule?
Response.
The time periods for completion of the final radon barrier discussed in the preamble of seven years after the end of operation, or Decemoer 31, 1997, for those uranium mill tailings impoundments which were non-operational at the time of the MOU, are general goals of the M00 and remain goals.
Because of this, specifying these dates in the rule is not necessary or appropriate. The proposed rule would require that specific dates for each impoundment be established at a condition of each license considering site specific factors which could affect the feasibility of meeting this general goal.
Comment.
The definition of ooeration is somewhat confusing in regards to " standby status".
What controls would prevent a licensee from keeping an impoundment on a standby status for an extended period of time without beginning closure?
Response.
The definition of operation is in conformance with the definition of " operational" in the proposed EPA amendment to subpart D and in 40 CFR part 61, subpart W.
Nothing in this proposed rule would keep the licensee from maintaining its operational status.
The licensee would be subject to all requirements of an operational license including 40 CFR part 61, subpart W, which contains a 20 pCi/m s flux standard. Thus, a
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E radon releases would be controlled to the same level as the design standard for closed impoundments.
Also, there are financial assurance requirements to assure adequate funds for closure.
Final action on a proposed NRC rule to require timeliness in decommissioning (January 13, 1993; 58 FR 4099) may affect this situation.
Comment.
One of the factors that could cause a delay in achieving reclamation completion at certain impoundment sites is groundwater remediation.
Because the time required for groundwater remediation cannot be forecast with certainty, it should be recognized that the reclamation schedule may need to be modified.
Hence, groundwater remediation may be added to the list of factors falling under this definition.
Response.
The completion of groundwater remediation is not covered by the specific timeliness criteria of this proposed rule.
The inclusion of these activities in the reclamation plan allows for consideration of possible int'ractions with radon control activities when setting the schedule for key milestone activities.
The definition of fattors bevond the control of the t
licensee need not include a list of possible factors.
A list of potential facters was included in the preamble.
Problems with carrying out groundwater remediation is recognized as a possible factor as well.
Comment.
The proposed rule incorporates NRC's policy statement published earlier (May 13,1992; 57 FR 20525) concerning the disposal into the i
impoundment of' materials similar to uranium byproduct material; however, this is not discussed.
Response.
Materials similar to uranium byproduct material are included in provisions for continued disposal during closure.
This provision does not authorize disposal.
It simply does not exclude non-byproduct material from 11
possible disposal during closure.
Requests for authorization to dispose of these materials in tailings impoundments would have to address the factors described in NRC's guidance document referred to by the commenter and would be subject to any other applicable requirements.
Comment.
We recommend deletion of the parenthetical phrase "..(i.e.,
within the top three meters).." from the existing text, which appears in paragraph (5) of Criterion 6 of the proposed rule.
Less than 3 meters of cover material may be required by applicable closure standards.
Response.
This phrase limits the provision in this paragraph to apply to no more than the top 3 meters of cover materials.
It is not intended to require at least 3 meters of cover material.
Comment.
In the last sentence of paragraph (3) of Criterion 6A, clarify that "the average of 20 pCi/m's" refers to the average over the impoundment as specified in footnote 2 to paragraph (1) of Criterion 6A.
Response.
The words " averaged over the entire impoundment" now appear in the proposed rule.
Comment. Although the concept of milestones is good, experience has demonstrated some problems of implementation.
Certain_ steps are not needed at some sites.
Please consider removing the milestones altogether.
Response.
The standard (in paragraph (1) of Criterion 6A) has been revised to include the words "if applicable", with a :imilar intent as the words " including as appropriate" in the definition of reclamation olan.
Removing the milestones is not an option; it is a matter of conformance with the EPA standard.
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e Coment.
Although there must be public participation, requiring public input every time a milestone is not reached, or cannot be reatned, is unnecessary and redundant.
Response.
All of the opportunities for public participation provided for in this proposed rule are in conformance with the EPA proposed standard.
i Even if EPA deleted this implementation detail from its final rule, these provisions would be necessary to satisfy the settlement agreement.
Comen t.
It is not essential during short delays to meet the 20 pCi/m's limit; however, NRC should include provisions for assessment of the need for control of radon emissions during prolonged delays due to circumstances beyond licensee control.
Controls in this circumstance may be needed to adequately protect public health and safety.
Response.
The NRC does not consider it necessary or appropriate for specific flux limits to apply during closure. This rule would add provisions to assure final radon controls are completed as expeditiously as practicable although some prolonged delays may be unavoidable because of physical constraints or other factors beyond the licensee's control.
In this case, NRC has sufficient regulatory authority.to require controls such as interim covers through case-by-case licensing actions.
i Coment.
Although it may generally be unnecessary to monitor thorium byproduct materials for radon after installation of an appropriately designed cover, the ne:essity for monitoring should be based on the radiochemistry of the byproduct materials, not whether they are labelled uranium or thorium byproduct materials.
It would be imprudent to discount the environmental and radiation health and safety considerations related to radon-222 from the thorium byproduct materials or the potential impacts from any thorium 13
i byproduct materials piles based only on their anticipated chemistry.
All
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lle(2) byproduct materials should be characterized by the concentrations of i
racionuclides present to ascertain the need for a radon barrier and before rescission of monitoring.
i Response.
This proposed rule is intended to conform to proposed revisions to 40 CFR part 192, subpart D which only applies to uranium mill j
i tailings, and does not extend to thorium mill tailings. Not extending the additional verification requirements of this proposed rule to thorium i'
byproduct materials does not discount the environmental and radiation and health and safety considerations related to radon releases from thorium I
byproduct material.
In the case of either uranium or thorium byproduct material disposal, the NRC considers the design standard of existing Criterion 6 (paragraph (1) in proposed text) to be of primary importance in I
the control of radon releases from closed tailings impoundments. The need for a radon cover meeting the design requirements is determined by concentrations j
of decay products of both uranium and thorium (existing provision appearing at
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paragraph (6) of the proposed text of Criterion 6).
The NRC does not consider i
it necessary or appropriate to require radon measurement generically for i
closed thorium mill tailings impoundments.
The facility of concern to this State is unique in that the waste is thorium tailings with significant
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concentrations.of radium-226.
Under the provisions of section 274o of the f
Atomic Energy..Act, the State may add further requirements in this case to i
l address this unique situation.
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A few minor clarifications were also made as a result of State comments.
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-i Issue of Compatibility with Agreement States
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The Commission proposes these changes as Division 2 matters of compatibility.
Under Division 2, States must adopt the provisions of an NRC 5
rule, but can adopt more stringent provisions.
It cannot adopt less stringent ones.
This designation (Division 2) is compatible with section 2740 of the Atomic Energy Act (AEA).
1 Proposed Rule As required by section 84a(2) of the Atomic Energy Act of 1954, as amended, the NRC is proposing to amend appendix A of 10 CFR part 40 to conform I
to EPA proposed amendments to 40 CFR part 192, subpart D, concerning non-operational, NRC or Agreement State licensed mill tailings sites.
Existing j
Criterion 6 of appendix A to part 40 requires that an earthen cover (or approved alternative cover) be placed over uranium mill tailings to control the release of radon-222 at the end of milling operations. This cover is to be designed to provide reasonable assurance that releases of radon will not
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exceed an average of 20 pCi/m's and that the barrier will be effective in controlling radon releases for 1,000 years, to the extent reasonably achievable, and, in any case, for at least 200 years. The design for satisfying the longevity requirement includes features for erosion control such as the placement of riprap over the earthen cover itself.
(Criterion 6 is also applicable to thorium mill tailings.
These amendments to Criterion'6 apply to uranium mill tailings only.)
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This proposed rule would amend Criterion 6, add a new Criterion 6A, and add to the definitions contained in the Introduction to appendix A to part 40.
Paragraphs (1), (5), (6), and (7) of revised Criterion 6 would contain the existing requirements of Criterion 6.
These provisions are not the subject of or affected by this rulemaking. These existing portions of Criterion 6 appear in this notice only for the purpose of numbering the paragraphs for ease of reference to specific requirements contained within the criterion.
However, minor conforming revisions have been made to Paragraph (1) of Criterron 6 and its footnotes for clarity and consistency with the new requirements being proposed.
This proposed rule would add a requirement to Criterion 6 for a one-time verification that the barrier, as constructed, is effective in controlling releases of radon from uranium byproduct material to levels no greater than c
20 pCi/m's. This provision, which appears at paragraph (2), would also specify a method of verification as a standard for adequate demonstration of compliance: EPA method 115, as described in 40 CFR part 61, appendix B.
As would be required by the proposed amendments to 40 CFR part 192, subpart 0, the licensee must use this method or another approved by the NRC as being at least as effective in demonstrating the effectiveness of the final radon barrier.
A copy of 40 CFR part 61, appendix B has been made available for inspection at the NRC Public Document Room, 2120 L Street, NW. (Lower Level),
Washington, DC and will be provided to affected licErisees.
Because of practical reasons, the verification of radon flux levels must i
take place after emplacement of the final radon barrier but before completion of erosion protection features.
In order for the results of the verification to remain valid, erosion protection features must be completed before 16
e significant degradation of the earthen barrier occurs.
The NRC will consider this in a final determination of compliance with Criterion 6.
The NRC could require, among other things, repetition of part or all of the verification procedures on a case-by-case basis if significant delay occurs before completion of erosion protection features.
Paragraph (3) of the proposed revision of Criterion 6 would add a requirement that, if the reclamation plan calls for phased emplacement of the final radon barrier, the verification of radon flux be performed on each portion of the pile or impoundment as the final radon barrier is completed.
Paragraph (4) would specify the reporting and recordkeeping to be made in connection with this demonstration of effectiveness of the final radon barrier.
A one-time report that details the method of verification is to be made within 90 days of completion of the final determination of radon flux levels.
Records would be required to be kept until license termination documenting the source of input parameters and the results of all measurements on which they are based, the calculations and/or analytical methods used to derive values for input parameters, and the procedure used to determine 3
compliance.
These reporting and recordkeeping requirements are comparable to existing requirements in 40 CFR part 61, subpart T.
The Commission notes that the proper implementation of the design standard of paragraph (1) of Criterion 6 is of primary importance in the control of radon releases.
The addition of the requirement for verification of radon flux levels does not replace, nor detract from the importance of, the radon attenuation tailing; cover design standard.
The proposed Criterion 6A would address the timeliness of satisfying Criterion 6 for uranium mill tailings.
The new Criterion 6A would require t
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that the emplacement of the earthen cover (or approved alternative cover) be carried out in accordance with a written, Commission-approved, reclamation plan that includes enforceable dates for the completion of key reclamation milestone activities.
This plan will be incorporated as a condition of the individual license.
This plan must provide for the completion of the final i
radon barrier (and erosion protection features) as expeditiously as practicable considering technological feasibility after the pile or impoundment ceases operation.
In keeping with the MOU, the implementation of this timeliness requirement will have a goal of completing the final radon -
barrier by December 31, 1997, for those non-operational uranium mill tailings impoundments listed in the MOU or seven years after the date on which the impoundments cease operation for all other impoundments.
For the purposes of Criterion 6A, definitions are proposed to be added to the Introduction of appendix A to part 40 (in alphabetical order with existing definitions) for: as exceditiously as oracticable considerina technoloaical feasibility, available technoloaY, factors beyond the control of the licensee, milestone, ooeration, and reclamation olan.
These definitions are substantively the same as contained in the EPA's proposed amendment to 40 CFR part 192, subpart D.
However, reclamation plan covers a broader range of activities than required in EPA's (radon) tailinas closure olan.
Reclamation of the tailings in accordance with appendix A to part 40 includes activities also occurring after the end of operation that are beyond those involved in the control of radon releases, such as groundwater remediation.
Thus, it is appropriate and efficient for planniiig if these activities are i
addressed in a single document.
(The proposed rule would also allow this reclamation plan to be incorporated into the closure plan, which includes 18
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other activities associated with decommissioning of the mill.)
A definitior.
of 'inal radon barrier is added to facilitate the drafting of clear regulatory.
text and to eliminate any ambiguity with respect to compliance with the 20 :Ci/m's " flux standard" after completion of the final earthen carrier and not as a result of any temporary conditions or interim measures..This definition excludes the erosion protection features which were not a subject of EPA's proposed rule.
Factors bevond the control of the licensee would be defined as factors l
proximately causing delay in meeting the schedule in the applicable reclamation plan for the timely emplacement of the final radon barrier notwithstanding the good faith efforts of the licensee to complete the barrier.
Consistent with the further description in the preamble to EPA's proposed rule, these factors may fnclude, but are not limited to:
Physical conditions at the site; inclement weather or climatic conditions; An act of God; An act of war; A judicial or administrative order or decision, or change to the statutory, regulatory, or legal requirements applicable to the liunsee's facility that would preclude or delay the performance of activities required l.
for compliance;
- i. abor disturbances; l
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Any modifications, cessation or delay ordered by State, Federal, or local agencies; Delays beyond the time reasonably required in obtaining necessary I
government permits, licenses, approvals or consent for activities described in 19 i
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i the reclamation plan proposed by the licensee that result from agency failure to take final action after the licensee has made a cood faith, timely effort i
to submit legally sufficient applications, responses to requests (including relevant data requested by the agencies), or other information, including i
anproval of the reclamation plan; and An act or omission of any third party over whom the licensee has no control.
In the definition of available technoloav, the phrase "and provided I
there is reasonable progress toward emplacement of a permanent radon barrier" is not included as it seem: inappropriate within the definition and the concept is incorporated into the standard itself, i.e., Criterion 6A.
i The definitions for as expeditiousiv as cracticable considerina r
technoloaical feasibility and reclamation olan have been specifically i
identified as applying to only Criterion 6A to prevent any potential misapplication.
This has not been done in the case of *he other definitions because either the terms are not used elsewhere in appenJix A or are used consistently with t,
definitions proposed.
The proposec.
.ould go beyond EPA's proposed rule by including the erosion protection barriers in activities to be completed as expeditiously as practicable considering technological feasibility. However, the proposed rule would not require that enforceable datas be established as a condition of e
license for completion of erosion protection.
(The key reclamation activities for which enforceable dates are to be established are the same as in EPA's proposed rule.) The reason for this difference is so that NRC can assure that erosion protection is completed before the barrier could degrade significa;.tly while allowing more fle "sility in this regard than for the " key reclamation 20
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milestone activities." Allowing significant degradation of the cover before i
completion of other aspects of the design could violate the design basis.
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As a result of the MOU, most affected licensees (those facilities that were non-operational at the time of the MOU) have voluntarily submitted reclamation plans which include proposed dates for attainment of key
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reclamation milestones.
(Planning for reclamation activities with Commission
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approval is required by existing regulations.)
The process of approving those reclamation plans, at least those portions dealing with control of radon emissions, and emending the licenses to make the dates for completion of key reclamation milestone activities a condition of license is nearly complete.
This process is expected to be completed before it becomes mandatory through issuance of a final rule.
These impoundments are in the process of being reclaimed with varying degrees of completion.
Other affected NRC licensees 3
are one whose impoundment has ceased operat. ion since the MOU and who is in the process of preparing a reclamation plan and four with operational impoundments who will be affected at the time the impoundments cease to be operational.
Criterion 6A, paragraph (2) would specify the circumstances under which the NRC will extend the time allowed for completion of key milestone l
activities once enforceable dates have been established. An opportunity for public participation would be provided in a decision to extend the time allowed.
The Commission may approve an extension of the schedule for meeting milestones if it is demonstrated that radon emissions do not exceed 20 pCi/m's' averaged over the entire impoundment.
The intent of this provision is that, if the radon release rates are as low as required after closure, there is no need for complex justifications for delaying completion of reclamation; however, the Commission may not necessarily extend milestones indefinitely on
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21 i
this basis alone.
In addition, the Commission may approve an extension of the final compliance date for completion of the final radon bar rier based upon cost, if the Commission finds that the licensee is making good faith efforts j
t to emplace the final radon barrier, that the delay is consistent with the i
t definition of available technoloav, and that the radon releases caused by the i
delay will not result in a significant incremental risk to the public health.
[
If the basis for approving the delay is that the radon levels do not exceed 20 pCi/n.'s, verification of radon levels will be required annually.
l Paragraph (3) of Criterion 6A would allow for the continued acceptance of uranium Dyproduct material or such materials that are similar in physical, t
chemical, and rsdiological characteristics to the uranium mill. tailings and j
i associated wastes in the pile or impoundment, from other sources, for disposal into a portion of the impoundment after the end of operation but during closure activities.
This authorization will also be made only after providing an opportunity for public participation.
This paragraph is intended to l
conform with proposed 40 CFR 192.32(a)(3)(iii).
"During closure activities" could include the period af ter emplacement of the final radon barrier.
In this circumstance, the Commission may except completion of reclamation 1
activitles for a small portion of the impoundment from the deadlines i
established in the license.
The proposed rule would specify that the r
verification requirements for radon releaser may still be satisfied in this case, if the Commission finds that the impoundment will continue to achieve a level of radon releases not exceeding 20 pCi/m's averaged over the entire impoundment.
However, reclamation of the waste disposal area, as appropriate, would be required as expeditiously as practicable once the. waste disposal operations cease.
l 22
Also, the Commission understands that EPA's use of the term "in-situ" in this paragraph means on site, that is, the material that may be accepted from other sources would be compared to the tailings or waste already in the pile.
or in.poundment to determine suitability for disposal.
Proposed paragraph (3) of Criterion 6A does not include this term. The Commission agrees that it-must approve the disposal of materials from other sources on a number of bases, including the suitability and compatibility of the materials for -
disposal in the particular pile Gr impcundment and has incorporated the alternative wording "already in the pile or impoundment."
The term "in-situ" has a particular meaning in the uranium industry and to the NRC, referring to a particular method of uranium mining.
The Commission believes that use of the term otherwise in this context could be confusing.
The opportunity for public participation in the decisions made under Criterion 6A would be in keeping with the HOU and the settlement agreement and would be made through a notice in the Federal Register providing an opportunity for public comment on the proposed license amendment. This notice would also provide the opportunity to request an informal hearing in accordance with the Commission's regulations in 10 CFR part 2, subpart L.
Alternatives for Consideration The Commission believes that one paragraph in EPA's proposed rule, 40 CFR 192.32(a)(3)(ii), raises issues of implementation.
Corresponding requirements to this paragraph are contained in Criterion 6A, paragraph (2).
The Commission understands EPA's proposal to provide mutually exclusive bases for approving extensions of milestones. A licensee may request an extension 23
- _a 4
,a,
~J-p J
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.- 5 l
of the date for performance o'.
lestones, including an extension of the date for emplacement of the final radon carrier, based upon a demonstration that i
radon levels do not exceed 20 pCi/m's.
In addition, the licensee may request an extension of the date for completion of the final radon barrier based upon cost if three specified criteria are satisfied.
Paragraph 192.32(a)(3)(ii) could also be interpreted to require that even in the case of slippage of interim milestones without slippage of the date for completion of the final radon barrier, the licensee would have to demonstrate that radon emissions are controlled so as not to exceed 20 pCi/m's during the period of delay.
The t
Commission would prefer more flexibility in this regard in order not to compromise measures needed to provide long term stability.
The point of the applicable paragraph in the settlement agreement may have been to allow extension without further justification where radon levels are already reduced to the level required of the final cover since no impact to the public would r
result.
Nonetheless, the final amendment to 10 CFR part 40, appendix A must conform substantively to the final amendment to 40 CFR part 192, subpart D.
j
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This conforming rule has been drafted essentially consistent with the interpretation inherent in a suggested revision provided to EPA in NRC's comments on EPA's proposal.
(A copy of this letter dated August 11, 1993, is i
available for inspection in the NRC's Public Document Room.)
The final,
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effective amendment to appendix A cast conform to the final version of EPA's revision to 10 CFR part 192, subpart D in any case. Thus, the final rule will consider both the comments received on this proposed rule and any changes to or clarifications made in EPA's final rule amending subpart D.
24
1 Finding of No Significant Environmental Impact:
Availability The Conmission has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's ragulations in subpart A of 10 CFR part 51, that this rule, if adopted.
..d not be a major Federal action significantly affecting the quality of the human environment and therefore an environmental impact statement is not required. This proposed rule would require that enforceable dates be established for certain interim milestones and completion of the final radon barrier on non-operational mill tailings piles through an approved reclamation plan and that a determination of the radon flux levels be made to verify compliance with the existing design standard for the final radon barrier.
It is intended to better assure that the final radon barrier is completed in a timely manner and is adequat31y constructed to comply with the applicable design standard. Thus, 't provides an additional assurance that public health and tt.e environment are adequately protected.
Because the proposed rule is not expected to change the basic procedures or construction of the radon barrier, there should be no adverse environmental impacts.
The environmental assessment and finding of no significant impact on which this determination is based are available for inspection at the NRC Public Document Room, 2120 L Street NW. (Lower Level),
Washington, DC.
Single copies of the environmental assessment and finding of no significant impact are available from Catherine R. Mattsen, U. S. Nuclear Regulatory Commission, Washington, DC 20555, Phone: (301) 492-3638.
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-m.
Paperwork Rt.
- tion Act Statement This proposed rule amends information collection requirements.that are suD;ect to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
This rule has been submitted to the Office of Management and Budget.for review and j
approval of the paperwork requirements.
Public reporting burden for this collection of information is estimated r
to average 156 hours0.00181 days <br />0.0433 hours <br />2.579365e-4 weeks <br />5.9358e-5 months <br /> per response, including the time for reviewing l
instructions, searc.hing existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Send l
comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden. to the Information and Records Management Branch (MNBB-~/ 714), U.S. Nuclear Regulatory Comission, Washington, DC 20555; and to the Desk Officer, Office of Information and Regulatory Affairs, NE0B-3019 '(3150-0020), Office of Management and Budget, Washington, DC 20503.
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'l Regulatory Analysis The Comission has prepared a draft regulatory analysis on this proposed regulation. The analysis examines the costs and benefits of the alternatives considered by the Comission. The draft analysis is available for inspection in the NRC Publie Document Room 2120 L Street NW. (Lower Level), Washington, DC. Single copies of the analysis may be obtained from Catherine R. Mattsen, U.S. Nuclear Regulatory Comission, Washington, DC 20555, (301) 492-3638.
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The Commission requests public comment on the draft analysis. Comments on the draft analysis may be submitted to the NRC as indicated under the ADDRESSES heading.
Regulatory flexibility Certification in accordance with the Regulatory Flexibility Act of 1980, (5 U.S.C.
605(b)), the Commission certifies that this rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.
There are only 19 NRC uranium mill licensees. Almost all of these mills are owned by large corporations.
Although a few of the mills are partly-owned by s
companies that might qualify ~as small businesses under the Small Business Administration size standards, the Regulatory Flexibility Act incorporates the P
definition of small business presented in the Small Business Act. Under this definition, a small business is one that is independently owned and operated and is not dominant in its field.
Because these mills are not independently owned, they do not qualify as small entities.
List of Subjects in 10 CFR part 40 Criminal penalties, Government contracts, H1zardous materials transportation, Nuclear materials, Reporting and recordkeeping requirements, Source material, and Uranium.
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s e
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, the NRC is proposing to adopt the following amendments to 10 CFR part 40.
PART 40 - LICENSING 0F SOURCE MATERIAL 1.
The authority citation for part 40 continues to read as follows:
AUTHOR!TY:
Secs. 62, 63, 64, 65, 81,161,182,183,186, 68 Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs. 11e(2), 83, 84, Pub. L.95-604, 92 Stat. 3033, as amended, 3039, sec. 234, 83 Stat. 444, as amended (42 O.S.C. 2014(e)(2), 2092, 2093, 2094, 2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); sec. 274, Pub. L.86-373, 73 Stat. 688 (42 U.S.C. 2021); secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C.
5841, 5842, 5846); sec. 275, 92 Stat. 3021, as amended by Pub. L.97-415, 96 Stat. 2067 (42 U.S.C. 2022).
Section 40.7 also issued under Pub. L.95-601, sec.10, 92 Stat. 2951 (42 U.S.C. 5851). Section 40.31(g) also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 40.46 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 40.71 also issued under sec. 187, 68 Stat.
955 (42 U.S.C. 2237).
1 P
2.
In appendix A, add the definitions of as expeditiouslV as oracticable considerina technoloaical feasibility, available technolo0Y, factors beVond 1
the control of the licensee, final radon barrier, milestone, operation, and j
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>. ~:.
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y
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reclamation olan to the Introduction in alphabetical order; revise Criterion 6: and add Criterion 6A to read as follows:
Appendix A to Part 40--Criteria Relating to the Operation of Uranium Mills and i
the Disposition of Tailings or Wastes Produced by the Extraction or Concentration of Source Material From Ores Processed Primarily for Their Source Material Content Introduction.
As exceditiously as oracticable considerino technoloaical feasibility,
^
for the purposes of Crf terion 6A, means as quickly as possible considering:
i the physical characteristics of the tailings and the site; the limits of available technology; the need for consistency with mandatory requirements of other regulatory programs; and factors beyond the control of the licensee.
The phrase permits consideration of the cost of compliance only to the extent specifically provided for by use of the term available technology.
Available technolooy meant technologies and methods for emplacing a final radon barrier on uranium mill tailings piles or impoundnients. This term I
shall not be construed to include extraordinary measures or techniques that would impose: costs that are grossly excessive as measured by practice within the industry (or one that is reasonably analogous).
To determine grossly excessive costs, the relevant baseline against which cost shall be compared is the cost estimate for tailings impoundment closure contained in the licensee's approved reclamation plan, but costs'beyond these estimates shall not automatically be considered grossly excessive.
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i factors beyond the control of the licensee means factors ;:roximately causing delay in meeting the schedule in the applicable reclamation plan for the timely emplacement of the final radon barrier notwithstanding the good faith efforts of the licensee to complete the barrier.
Final radon barrier means the earthen cover (or approved alternative cover) over tailings or waste constructed tu comply with Criterton 6 of this appendix (excluding erosion protection features).
I Milestone means an action or event that is required to occur by an enforceable date.
Operation means that a uranium or thorium mill tailings pile or impoundment is being used for the continued placement of byproduct material or i
is in standby status for such placement. A pile or impoundment is in operation from the day that byproduct material is first placed in the pile or impoundment until the day final closure begins.
Reclamation clan, for the purposes of Criterion 64, means the plan I
detailing activities to accomplish reclamation of the tailings or waste disposal area in accordance with the technical criteria of this appendix.
The reclamation plan must include a schedule for key reclamation milestone activities including as appropriate, but not limited to, wind blown tailings retrieval and placement on the pile, interim stabilization (including dewatering or the removal of freestanding liquids and recontouring), and final radon barrier construction.
(Reclamation of tailings must also be addressed 30 i
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41,.
in the closure plan; the detailed reclamation plan may be incorporated into l
the closure plan.)
i
- f Criterion 6(1)-In disposing of waste byproduct material, licensees shall place an earthen cover (or approved alternative) over tailings or wastes at the end of milling operations and shall close the waste disposal area in B
accordance with a design
- which provides reasonable assurance of control of radiological hazards to (i) be effective for 1,000 years, to the extent reasonably achievable, and, in any case, for at least 200 years, and (ii) limit releases of radon-222 -from uranium byproduct materials, and radon-220 from thorium byproduct materials, to the atmosphere so as not to exceed an average
- release rate of 20 picocuries per square meter per second (pC1/m's) to the extent practicable throughout the affective design life determined pursuant to (1)(1) of this Criterion.
In computing required tailings cover thicknesses, moisture in soils in excess of amounts found normally in similar soils in similar circumstances may not be considered.
Direct gamma exposure from the tailings or wastes should be reduced to background levels. The effects of any thin synthetic layer may not be taken into account in e
determining the calculated radon exhalation level.
If non-soil materials are 8 in the case of thorium byproduct materials, the standard applies only to design. Monitoring for radon emissions from thorium byproduct materials after installation of an appropriately designed cover is not required.
- This average applies to the entire surface of each disposal area over a period of at least one year, but a period short' compared to 100 years. Radon will come from both byproduct materials and from covering materials. Radon emissic" from covering materials should be estimated as part of developing a cit ew an for each site.
The standard, however, applies only to emissions trot
- , duct materials to the atmosphere.
31 I
proposed as cover materials, it must be demonstrated that these materials will net crack or degrade by differential settlement, weathering, or other mechanism, over long-term intervals.
(2)-As soon as reasonably achievable after emplacement of the final cover to limit releases of radon-222 from uranium byproduct material and prior to placement of erosion protection carriers or other features necessary for long-term control of the tailings, the licensee shall verify through appropriate testing and analysis that the design and construction of the final radon barrier is effective in limiting releases of radon-222 to a level not exceeding 20 pCi/m's using the procedures described in 40 CFR part 61, o
appendix B, Method 115, or another method of verification approved by'the Commission as being as least as effective in demonstr ating the effectiveness of the final radon barrier.
(3)-When phased emplacement of the final radon barrier is included in toe applicable reclamation plan, the verification of radon-222 release rates -
required in paragraph (2) of this criterion must be conducted for each portion of the pile or impoundment as the final radon barrier for that portion is emplaced.
(4)-Within ninety days of the completion of the required verification in paragraphs (2) and (3) of this criterion, the uranium mill licensee shall L
report to the Comission the results of the testing and analysis, detailing the actions taken to verify that levels of release of radon-222 do not exceed 20 pCi/m's. The licensee shall maintain records until termination of the
~
license documenting the source of input parameters including the results of all measuren,ents on which they are based, the calculations and/or analytical methods used to derive values for input parameters, and the procedure used to 6
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l determine compliance.
These records shall be kept in a form suitable for-transfer to the custodial agency at the time of transfer of the site to DOE or a State for long-term care if requested.
(5)-Near surface cover materials (i.e., within the top three meters) may l
not include waste or rock that contains elevated levels of radium; soils used for near surface cover must be essentially the same, as far as radioactivity is concerned, as that of surrounding surface soils.
This is to ensure that surface radon exhalation is not significantly above background because of. the cover material itself.
(6)-The design requirements in this criterion for longevity and control of radon releases apply to any portion of a licensed and/or disposal site unless such portion contains a concentration of radium in land, averaged over areas of 100 square meters, which, as a result of byproduct material, does not exceed the background level by more than: (1) 5 picocuries per gram (pCi/g) of radium-226, or, in the case of thorium byproduct material, radium-228, averaged over t*.e first 15 centimeters (cm) below the surface, and (ii) 15 pCi/g of radium-226, or, in the case of thorium byproduct material, radium-228, averaged over 15-cm thick layers more than 15 cm below the surface.
(7)-The licensee shall also address the nonradiological hazards I
associated with the wastes in planning and implementing closure. The licensee shall ensure that disposal areas are closed in a manner that minimizes the need for fd er maintenance. To the extent necessary to prevent threats to human health and the environment, the licensee shall control, minimize, or eliminate post-closure escape of nonradiological hazardous :enstituents, leachate, contaminated rainwater, or waste decomposition products to the ground or surface waters or to the atmosphere.
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Criterion 6A (1)-For impoundments containing uranium byproouct materials, actions required to achieve compliance with Criterron 6 must be completed as expeditious 1y' as practicable considering technological
~
feasibility after the pile or impoundment ceases operation.
These controls must be carried out in accordance with a written. Comission-approved reclamation plan.
Deadlines for completion of the final radon barrier and the I
following key interim reclamation milestone activities, if applicable, must be established as a condition of the individual license:
windblown tailings retrieval and placement on the pile, interim stabilization, dewatering, and recantouring.
(2)-The Comission may approve a licensee's request to extend the time for performance of milestones if, after providing an opportunity for public participation, the Comission finds that the licensee has adequately 3
demonstrated in the manner required in paragraph (2) of Criterion 6 that i
releases of radon-222 do not exceed an average of 20 pCi/m's.
If the delay is approved on the basis that the radon releases do not exceed 20 pCi/m's, a
- verification of radon levels, as required by paragraph (2) of Criterion 6, must be made annually during the period of delay.
In addition, once the Comission has established the date in the reclamation plan for the mile: tone for completion of the final radon barrier, the Comission may extend that date based on cost,1f, after providing an opportunity for public participation, the l
~I Comission finds that the licensee is making good faith efforts to emplace the final radon barrier, the delay is consistent with the definition of available technoloqY, and the radon releases caused by the delay will not result in a significant incremental risk to the public health.
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e
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(3)-The Comission may authorize by license amendment, upon licensee request, a portion of the impoundment to accept uranium byproduct material or such materials that are similar in physical, chemical, and radiological characteristics to the uranium mill tailings and associated wastes already in the pile or impoundment, from other sources, during the closure process. This i
authorization may not be made if it results in a delay or impediment to emplacement of the final radon barrier over the remainder of the impoundment in a manner that will achieve levels of radon-222 releases not exceeding 20 pCi/m's averaged over the entire impoundment.
Authorization to remain accessible will only be made after providing opportunity for public participation.
The verification required in paragraph (2).of Criterion 6 may be completed with a portion of the impoundment being used for further disposal if the Comission makes a final finding that the impoundment will continue to achieve a level of radon-222 releases not exceeding 20 pCi/m's averaged over the entire impoundment..
Reclamation of the disposal area, as appropriate, must be completed as expeditiously as practicable after disposal operations cease in accordance with paragraph (1) of this Criterion.
Dated at Rockville, Maryland, this 'k? day of 3-6[rt 7v, 1993.
For the Nuclear Regulatory Comission.
Q... )
h samuel J. Chilk,
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Secretary of the ocrni ssion.
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CCNGRESSIONAL CORRESPONDENCE SYSTEM DOCUMINT PREPARATION CHECKLIST This checklist is be submitted with each document (or group of G3/As) sent fore
'ing into the CCS.
I I O Il N
)'
1.
BRIEF DESCRIPTION OF DOCUKENT(S)
\\/
'T h l U /$
2.
TYPE OF' N Correapondensen Reagingse (QF/Aab v
\\r
/
Non-sensitive 3.
DOCUMENT CONTROL Sensitive (NRC Only) 4.
CONGRZ88IONAL COMMITTEE and SUBCOMMITTEES (if applicable)
Congressional Committee Subcommittee 5.
SUBJECT CODES (a)
(b)
(C)
L 6.
SOURCE OF DOCUMENT 5 (a) 5520 (document name (b) scan.
(c)
Atlachments (d)
Rekey (e)
Other 7.
SYSTEM LOG DATES n I.
(a)
/ u / l.
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Date OCA sent document to CCS (b)
Date CCS receivess document (c)
Data returned to OCA for additional information (d)
Date resubmitted by-OCA to CCS
~
(e)
Data entered into CCS by (f)
Date OCA notified that docunent is in CCS 8.
COMMENTS I
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