ML20058L973
| ML20058L973 | |
| Person / Time | |
|---|---|
| Issue date: | 09/02/1993 |
| From: | Taylor J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| References | |
| FRN-58FR58657 AE77-1, AE77-1-024, AE77-1-23, AE77-1-24, SECY-93-249, NUDOCS 9309090416 | |
| Download: ML20058L973 (71) | |
Text
_
p.
.....ce.....s,........
f Il f k
f
- ~ )11[ h%
e u:L ie m- '
j y
- ctoaeec***.sem Ur,ae v
POLICY ISSUE September 2, 1993 (Notation Vote)
SECY-93-249 EQH:
The Comissioners ERQti:
James M. Taylor, Executive Director for Operations SEE[I:
PROPOSED RULE: URANIUM MILL TAILINGS REGULATIONS; CONIORMING NRC REQUIREMENTS TO EPA STANDARDS PURPOSE:
To obtain Comission approval of a notice of proposed rulemaking to amend NRC regulations governing uranium mill tailings to conform to proposed amendments to EPA's generally applicable standards.
CATEGORY:
This paper covers a policy question requiring Comission consideration.
BACKGR0 M :
Information concerning plans for this rulemaking was provided te the Comission in SECV-91-399. This rulemaking relates to a planned rescission of EPA's National Emissions Standards for Hazardous Air Pollutants (NESHAPs) for radionuclide emissions from licensed uranium mill tailings disposal sites in Subpart T of 40 CFR Part 61 (Subpart T). Through consensus-building discussions, a staff-level Memorandum of Understanding (MOU} was established between NRC, EPA, and the Agreement States regulating uranium mill tailings sites (Colorado, Texas, and Washington), t:hich set out planned actions to eliminate dual regulation of non-operational mill tailings sites.
In accordance with that MOU, EPA published, in Decembr f.991, a stay of Subpart T which expires on June 30, 1994, a proposed rescission of Subpart T, and an advance notice of a revision to 40 CFR Part 192, Subpart D.
On April 1, 1993, EPA published a Settlement Agreement between EPA, AMC, EDF, NRDC, and 14 mill owners / operators. The Comission was not a signatory to this agreement, but did send a letter to the involved parties agreeing in principle with the CONTACT:
Catherine R. Mattsen, RES 492-3638 NOTE:
TO BE MADE PUBLICLY AVAILABLE N O7 HEN THE FINAL SRM IS MADE AVAILABLE.
99q0 l 0 p b[\\p Sp 0
170011
The Commissioners 2
agreement and promising to carry out the actions describad in the agreement to the extent allowed by applicable law and available resources.
The reasons for this approach were discussed in SECY-92-416.
EPA published its proposed amendments to 40 CFR Part 192, Subpart D on June 8, 1993 (Enclosure 1). The Commission approved the staff comments on EPA's proposed rule in an SRM dated August 3, 1993.
DISCUSSION:
The Commission is required by section 84a(2) of the Atomic Energy Act to conform its regulations to the generally applicable standards in 40 CFR Part 192.
The schedule for doing so has been planned in order to carry out the provisions of the MOU and the Settlement Agreement and to allow for the rescission of Subpart T before the expiration of its stay of effectiveness.
The proposed amendments to Subpart D of 40 CFR Part 192 would add to the requirements for covering uranium mill tailings to control the release of radon, provisions for timeliness in completing the final radon barrier and a one time verification that the barrier is effective in controlling radon releases.
The present requirements for the cover over tailings consist of a design standard only.
The only matters that are discretionary on the part of the Commission in this rulemaking are details of implementation.
EPA's generally applicable standard, in this case, includes some of the details of implementation.
This draft proposed rele adds details concerning reporting and recordkceping to the basic requirements to which the Commission must conform.
To a limited extent, it also addresses tailings reclamation activities beyond those addressed by EPA in order to assure that all required reclamation activities are planned for and carried out in a consistent manner; that is, so that the plans made for controlling radon releases in accordance with this rule do not adversely affect the completion of other reclamation a-tivities.
The proposed rule, as drafted, could di#fer in certain areas from the EPA's rule to which it is intended to conform.
This is because certain parts of the proposed amendments to 40 CFR Part 192, Subpart D appear to be open to interpretation and may be, unintentionally, not completely in accordance with the intent of the Settlement Agreement. This proposed rule has been drafted using an approach suggested in the comments on EPA's rule intended to clarify and eliminate ambiguity from the requirements. NRC staff has coordinated with EPA staff in the drafting of this proposed rule at the working level in order to minimize inansistencies in interpretation which could result in changes needed in the final rule.
The Statement of Considerations of this proposed rule discusses these potential problems of interpretation and notes that the final rule must conform with EPA's final amendments to 40 CFR Part 192, Subpart D.
_ _ _ _ _ _ _ _ _ ~ _ - - - - - - - - - - - - - - - - " - - - " ^ - - - - - - - - - - - -
The Commissioners 3
COORDINATION:
The Office of the General Counsel has no legal objection to this paper.
RESOURCES:
Resources for this rulemaking are included in the FY 1994-1998 Internal Program / Budget Review document.
RECOMMENDATION:
That the Commission:
1.
Approve the Notice of Proposed Rulemaking for publication (Enclosure 2).
2.
Certify that this rule, if promulgated, will not have a negative economic impact on a substantial number of small entities in order to satisfy requirements of the Regulatory Flexibility Act, 5 U.S.C. 605(b).
3.
Note:
a.
The rulemaking would be published in the Federal Recister for a 45-day public comment period; o.
A draft regulatory analysis will be available in the Public Documer.t Room (Enclosure ?);
A draft environmental assessment and a finding of no significant c.
impact have been prepared (Enclosure 4);
i d.
The Chief Counsel for Advocacy of the Small Business Administration will be informed of the certification regarding economic impact on small entities and the reasons for it as required by the Regulatory Flexibility Act; The proposed rule contains information collection requirements e.
that are subject to review by OMB.
Upon Commission approval, formal request for 0MB review and clearance will be initiated; f.
The appropriate congressional committees will L. informed (Enclosure 5);
g.
A public announcement will be issued (Enclosure 6); and h.
Copies of the Federal Register Notice of proposed rulemaking will be distributed to all affected Commission licensees and the States of Colorado, Texas, Washington, and Illinois. The notice will be sent to other interested parties upon request.
~
The Commissioners 4
SCHEDULING:
Planning for the rescission of Subpart T called for the Commission's proposed rule to be published prior to EPA's final action on 40 CFR Part 192, Subpart D.
EPA has committed, in the Settlement Agreement, to take final action on 40 CFR Part 192 by October 1993.
Final NRC action on 10 CFR Part 40 should be taken by May 1950, so that EPA will be able to take final action to rescind Subpart T by June 30, 1994, when the stay of effectiveness of Subpart T expires, and in accordance with the schedule described in the Settlement Agreement.
a s M. Tay r E cutive Director for Operations
Enclosures:
1.
EPA proposed rule (58 FR 32174) 2.
Federal Register Notice 3.
Draft Regulatory Analysis 4.
Draft Environmental Assessment 1
5.
Draft Congressional Letters 6.
Draft Public Announcement l
l Commissioners' comments or consent should be provided directly to the Office of the Secretary by COB, Friday September 17, 1993.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT, September 10, 1993, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
TISTRIBUTION:
Commissi'ners OGC CAN OIG PA CA OPP DCD Central Files EDO SECY
IA-
~
2
}g,,
~
~
-..c.
~
t 1
Part II Environmental'
~
Protection. Agency 40 CFR Part 192 m nd Thorium Proposed Rule o
g' i
~
-Federal Register / Vol. 68. No. 508 / 'Anasday.-June s.1993 / Prow Rules 32174 ENWRONMENTA1.PHOTECTION FOR FtsmeEll SIP 0fMRA 1088 00errACT: Gale henhh hasard to the public,and that AGENCY Bananno. Air Standards and Knacammics overy mala effort should be made Branch. Criteria and Standesde Dtvielen, to ser the etahiheetion, disposal.
40 CFR Part192 4602J. Of5ce ofRadiation Progreme..
controlin a safe and M 8"43 Environmental Protection environmentaUy sound menner ofsuch Washington.DC 20460. (
233-8210.
in order to psevent or minimin 33f8203D ARIS ElfpPl.EsEliTAftYsfP0fERATIDec diffusion into the environment Health arid Errvironmental Storisiertis and to prevent or alnimina other Teus ofCassenes ser Uranium and T8eertum taul TeutnOs environmensalhasards from such g,_(_j See 42 U.SJC. 7901(a).Under
-avironomio,, --
meat,.e. e,ur i.m -To,=
B. EPA and NitC's UhfTRCA
.t a.,_,,o ProtedP- ---,e,,
and AcTtosc Proposed sle.
C EPA *e Osea Air Ass RuisseeMeg the environment h haamds
- n. N' 'h 7..
eseociated with uranium mill tauings.
l
~suantAny: EPA is proposing minar
=n=ad===*= to its A.Pednes s for t==a==,
no Progrom (Tide I)sospdred the
~
- 3. section tsaidXe) of the Qoes Air Act ud environmental ens pertaining to a
etsesoiths=m r==
- 6e necenery adiens et uranium miH sites designated inedive uteniusa mill tsGing e
7 mh Tsungs - c womarandus er & ' - - ' hemosa -Sita e achsen-u-wie the on Control Act (UhtiltCA) of 197s. An advanced notice of pro
. EPA and NitC generalen standards to be rulmankingdesenbingthe s= posed D.cursuet narda.=yProosedlags prom
^= y Den sites wem b
w an.s.es) mesis surrispose
==nis-beats forthis action was pub on A. Statutory derFW elms fwwhich a Bosase n.n.=w st.1eet.m poposed
- 1. Emphasis Upas = ram== Redan by NRC Lik
.=
a-.= claruy 6. curriet mle by comed theAtendeEnergy (AEC),
=
ensuring emplacement of a 1.UMTitcA's Scheme and Ptepeans me was notin effeden Jan 197s.
permanent barrier and by r
withTedey'sresponiwMah b o&er a g,,g,
- for castaes and BauerhaplesassesEPA's to active sites.
are those are monoperati
,,,3um mig Extetins " '"'
licensed bythe NRCer en aSected
~
alles that areEconned by a.tuerpseuve desdow N
Regulatory Ca==ta=laa (NRC)
- 1. AMCJand AMCK sum. -
-in or one ofits Agreement States (ahroad 2.proModerand AMCB ~
site inclaie the Baal s.QualowSuppens the Proposed Asaka
'd M
bd Agreement States).bw affected C Settlement Agressment re w
Eng Agreement States are Colorado.
on, and Texas.which are the IV. Proposed Rule to Amend 40 CFR Part g
d the P ss2.Subpart D promulgeh Man forGese Mcmand
"*)um ura ud Weide pursuant Ih=8"P* *f th38 A88188 e tes. including standards that protect
'8' human health and the environssot in a to the Atomic Energy Act (AEA).'Thl, C Approprset.
- ig yt action is selated to another actio8 87 y gp EPA to rescind its NotaonalEmimions v.Discusdoes of comments ad Resposes to Weste Dis 1 Act, as amended. De Standard for Hazardous Air 0pDutants r,.===nts from ANPR NRC, or licensing State.
[NESHAPs) for redon omissons from
. vi.Regunst for cannants isres ble forin the EPA the disposal of uranium mill tallings at VB.MisceBassous
"'**I"" "UU"E 8*Pestinal sites whichwas A. Paperwork Reduction Ad promulgated on December 15,1989.as a.Executs,e Order 122e1 As part ofNRC's 1982 authoriastion ~
11 applies to sites licensed by the NRC, C Regulatory Flexibility Analysis and appropriations, Congress amended or an affected Agreement State.
UMTRCA on January 4.1983.Public Dams:Comsnents concerning this L Background Law 97-415 esctions 18(a)and 22(b).
proposed rule must be received EPA A. Descr/ption of Urnniunt Mill ToHiags M' tedin 21982 U.S. Code Cong' &
on or beforo }uly 21.1993. A pub c
. News at 96 Stat. 2077 and 2080.
hearing willbe held on June 21.1993.
Uranium miU tdhage em sand-like As partially amended thereby. EPA's ADomsssss: r'a===ats should be wastes that resuh frein the processlag of rulemaking authority for these sites is submitted (in duplicate if possible) to:
uranium cre. Tailings are atored in large such that the Ad=lal=*=etor must, by surfeos impoundments,cnued in rule, propose,and within 11 months CentralDocket Section 13-131.
emounts from less than one tons thereafter promulgets in Anal form.
Environmental Protection
. Attn:
AirDocketNo. A-91-67 W to over thirty mullon tons, over areas standards of general application for the on, that may covw hundreds of aass.Most protection of the pubHc heahh, DC 20460. Requests to dpatein the piles are located in the Western United and the environment frasa puhuc hearing to be d at the Shweton Crystal City Hotel. Arlington, States and aH piles' emit redan gas,a and nonrediological hazards assodsted decay product of the waste material with the processing and with the VA from 10 a.m.to 4 p.m. on June 21.
processed at the uranium muls.
1993, should he made in writing to the To deal speci6cally with the risks rodud material, e.g., uraniusn mal on, transfer, and disposal of Director, Criteria and Standards Division. 6602J. Offics of Radiation and associated with these piles.FM =
'ngs. Requirements establiebed by Indoor Air. Environmental Protection passed the Uranium MillTsuings the NRC with respect tobyprodud Radiation Control Act (UMTRCA)in Jaetorial must conform to the EPA Agency,401 M Street. SW Washington, 1978 (42 U.S.C. 2022,7901-7942).In DC 20460. Comments and requests to anscting UMUtCA, Congress found that. standards. An uirements of such standards ado by the NRC shall be cfpate in thd hearing may also be uranium milltai may pose e amended as e NRCdeems necessary to ed to EPA at (202) 233-9629.
potential and signi cant radiation conform toIPA's standards.In d
- - - - - - - - - - - - ~ - ^ - - - - ' - - - ^ - - ' - -
Federal Register / Vol. 58. No.108 / Tuesday, June 8. h993 / Proposed Rules 32175 establishing such standants b closed. Rose standards govern 6 heahh or to minwi= danger oflife or Administrator must consider the risk to dwign of disposal systems, and property.
the public halth, safety, and 6 therefore guide the actf vitiu carried out environment,the environmental and during the closum period to ensure the c gp3.s C2ean AirAd Rulemoling economic costs of applying such
~ dequacy of the 6nal cover.ForNRC Both the UMTRCA standards a
standards, and such other factors as b licensed mill txilings sites that are being promulgated by EPA in 1983 and the Administrator determines to be closed. Subput D calls for reclamation implementing NRC standards cppropriate. See 42 U.S.C. 2022(b)(1).
plans dec!gned to control radan.
promulgated in 1985. failed to require or D. EPA andMC's WTRCA that b e*=a >
l
[3
,",to o 20 pC/ 2-s for 1000 yea,s to a extem,oa.m.hiy Pues wouid be trousl cioli.
r i
EPA la authorised to pc.
to achievable, but in any ennt for at least and that the 20 m* e standard guaral m'iromnental stan to 200 years. 40 CFR 192.32(b)(11 (1) and would be met,within a reasonable govern the remediation promsa. 42 (g) period of time.Moreover,ths NRC U.S.C. 2022(a) and 7918 (as to DOE Both the'UMTRCA title I and title D citaria also failed to require ma Ltaiing sites); 42 U.S.C. 2014 and 2022(b) (as to NRC licemed altos). On January 5.1983, standards were chaHanged by wveral to vocify comphance with the flux EPA promulgated final rules for b parda in b Tenth ht Court of standard (50 FR 41852). In to disposal and cleanup of h inactive A pals.On Se om kr1.1985 b the separate of Clean s
uranium mul ta!!1ngs sites under cm rt upheld a aspects of EPA's AI' AC** and in t of the shortmmings UMTRCA title I(48 FR 605).Utle I standards excepting the ground water to the currem WTRCA pmgram fa the Department of Energy '
provisions of the tius I regulations at 40 U""**d "'*"I"" "
"P the Claan [Act to ensure that theulgated standarda under af tea.M E) to condum remedial action at CFR 192.20(a)(2)-(3).' Ametima Mirdng inactive uranium min tallings sita to
.2d erd 6 U.
1158 pues would be closedin a dmely ensure comphance with EPA's (1986). On' September 24.1987. EPA manner.Rees NESHAPs were reguladons for mpedy mana#g.
uranium bypro uct materials.The PNPad new $adons to wpb
-p>>hfiAd on December 15.1989 (54 FR 51654) codiSed at 40 CFR part 61, Nr"R 3N'ne E[$'SJ']"n"8 pmgram for inactin sita requirn 6
'ubput T(nmo W (operational).peational) and subput.
disposal of tanings and the clun-up of on-alte locations contaminated with action is pending and is not affected by talhngs.DOEis responsible for today's acdon.
no NESHAP formoperational implementing the standards established On October 16.1985.NRC uranium mill uffinp codified at 40 CFR part 61. subpart T. applies to both by EPA.with the concurrence of the promulgated rulu at to CFR part 40 to ' title I and title D sites. Re standard has NRC. sad in cooperation with the host conform the previous NRC regulations three primary requirements. First. It states. The requirements developed to issued five yurs urlier to the implement the title I program are not Provisions of EPA's genera UMTRCA imposes an emission limit of 20 pCL/m -
1 l
s of radon-222 from a disposed pile, the subject of today's proposed standuds at 40 CFR part 192. es it consistent with 6'UMTRCA standud.
rulemaling'29.1983. EPA proposed affected matters other than ground water Second. It requires that, once a uranium On April Protection (50 FR 41852). On Nove=ber min hflings pile or impoundment general environmental standards for 13.1987.NRC promul ated final rules mases to be operational.it must be E
12tle D uranium and thorium mill for ground water protection at uranium disposed of and bmught into ta!!ings sites (48 FR 19584). Rese rules mill tailings sites that conformed to compliance with the smission limit were promulgated on September 30 Provisions of EPA's standards for within two of b effective date of 1983 (48 FR 45926), and are codiEed at ground water protection at 40 CFR part the stand (by December 15.1991) or 40 CFR part 192 subputs D and E. Title 192. subparts D a-d E (52 FR 43553).
within two years of the day it ceases to D spplies to currently operating Under the NRC regulations, uranium be operational, whichever is later. Ifit uranium mill tailings facilitieslicensed milling operations that mine, process or was not physically possible for a mill by the NRC or an Agreement State. The dispose of uranium and thorium, and owner or operator to complete disposal Title D program established their byproduct materisla must apply to within that time. EPA contemplated a uirements for the Enal disposal of the NRC for a license, la its application negotiated corrpliana agreement with tal gs, the control of afDuents into for an NRClicense.the owneror the mill owner or operator pursuant to gmund water, and radon emissions
- operstor of the mill must demonstrate EPA's enforcement authority to assure during and after milling operations. The the expected compliance with the that disposal will be completed as requirements are divided into two parts. tan %1. financial, ownership and quickly as possible. Third. it requires The first part applies to the management long-term surveillance requirements of monitoring of the disposed pile to cf tailings during the active life of the NRC's implementing regulations during demonstrate compliance with the radon pus and during 6 subsequent closure the siting and construction of the mill.
eminion limit.
period, which begins after cessatico of its operation,the decontamination and As noted earlier. the numerical radon milling operations but prior to decommissioning of the mill after emission limit is the same as the completion of final disposal, including operations cease, and the reclamation of UMTRCA standard at 40 CFR put 192 tha period of time when the tailings are the milling fedlity and its surrounding subpart D (subpart D) (although under drying out. The second part of the environs. In accordanm with to CFR UMTECA.the limit is to be met through l
requirements speciBes the standards 40.41[e), the NRC may incorporate in proper design of the disposal l
that must be met once the piles are any license or later amend the license to im undment, and is to be include additional requirements and im lemented by DOE and NRC for the in. i no r.l.a. is u.d in ao ry:t part ist.
conditions with respect to the licensee's in vidual sites, while under the CAA.
enbpen D. Era totends rel.an as =.d in today s receipt, possession, use, and transfer of the standard is a straight emissions
[ d o',*[.d**".' M'Noyd source or byproduct material as it deems limit). However, the two year disposal i,,,,g 6 to CTR pen st. mbpen 't.
appmpriate or necessary to protect requirement and the radon monitormg
1 l
32176 Federal Register / Vcl. 58. No.108 / Thesday. June G.1993 / Proposed Rules l
l
- %ent are not separately required in the futura, bri those piles into subpart D(56 TR 67569) to provide for h existing UMTRCA regulations.
com liance with to
' m* s Dux site closure to aa::ur as expeditiously as aan$ud u expediti y u -mu.
er.cticable omsiderms nochnological II rutt-g, to Subpart T '
cmsidQ' technological EAmty joesibihty Fa+*a: factors beyond the A.PetitionsforTwrunaion -
Oncluding factors beyond the coutml of mntrol of the boennes), and appropriate ARer ting rubpart T.DA s ucansee)with h soalthat au monitoring monts for roosi peutlesim current disposal sites be closed and in nonoperati uranium adll tailings reconsideration, the most notably filed comphance with the redan omission pues.nese ameodments would ensure by HRC ed the Amtirbm Mining standard by the end of1997.or within timely cxxopliance and add monitoring (AMG Ammg other anums seven ywis of the date an which requirements currently lacking in the set in these petitions is the existing operations and standby sites UMTRCA reg datims.
g argument that the omlap between entar disposal status.Ris goal EPA has tenistinly concluded that comports with
's cr=mrn over with the mentScations to the general EPA's subpast D of UMTRCA and
- timing as nDochd CAA secdon UMTRCA guladens proposed today, subpart T of the CAA NESHAP has -
resulted in ons that are 112(i)(3), as amended.
- as preparly implemented by the NRC burdensome and In accordance whh tb MOU. tb NRC. sad the Agreement States to ensure and affected A wt States'have specinc. enforceshle closure sta em==e dupherties. was aho aus'godthat subpart T was tinlawful because it was agreed to amend the Hr=n= of all sites and monitoring requisecnents, the NRC's
.f P ysiedlyimpossibletocomeinto whose mmHg opastions have conned regulatory program for monoperational i
h comphancs with subput T b the time and whose tailings piles remain uranium mill tamngs piles would i
required. While these petitMs r-i" putlaDyortotally ld i.%e
. protect the public health with an ample 1-amended kr=n=== wou sech 9a= *of salsty.However, or to pending before DA (at lautin put)-
milloperater to establish a iled A
- its rule to sub T.
DA has taken several actions to address the issus they raise.
(radon)tahr closure plan toinclude and aAar'DA takes Analaction key closure milestones and a schedule NRC conforms its regulations to the D. Section r22(dX81ofde Osan AirAct im timely unplacement af a permanent UMTRCArulesifmodified andall Amendments of19so(de ha rsdon burier on allnonoperutional monoperational site licenses are Amedment'*)
tainngs impoundments to ensure that- - modined in accordance therewith. EPA redon emierions do not exceed a Dux of currentlyintands so a findmg m in November 1990. Congress amended the CAA and included a new section, 20 pCUm* a. no licenses must be the Federal Repeter provide an section 112(d)(9). which authorized EPA amended as soon as practicable, but in additional 30 day comrnant period on to decline to regulste radionuclide any event no later than September 1993. whether the NRCregulatoryprogram emissions from NRC licensees under the D. Current RegulatoryProceedings protects pubH+ kalth with an ample m@ of sMAhe occurs. EPA
[
CAA provided that EPA found. by rule.
On December 31,1991. EPA took will take final action on its proposal to aAer consultation with NRC.that tbs several steps towards fMhg its I
regulatory scheme implemented by NRC responsibilities under the MOU and in rescind 40 CFR part 61, subpart T.
Consisant with their responalbilities protects the public heahb with an ample implementing the "Sim under the MOU. as well as EPA's margin of safety.Today's action is Amendment" by three proposal to rescind the NESHAPat 40.
needed to assistIPA in making the Federal Register notices. !n the CFR part 61, subpart T. NRC and the "Simpson Amendment" finding far first notice (56 FR 67537). EPA affected Apeement States have agreed NRC licensed uranium miH tallings published a Snal rule to stay the to amend the lir=== cf all i
disposal altes, as it seeks to fill the effectiveness of 40 CFR part 61, subpart nonoperational uranium inill tailings timing gaps and other concerns that
- T. as it applies to owners and operators sites to ensure inclusion of schedules undarlie EPA's 1989 decision to of nonoperational uranlurn mill tailin6s for emplacin8
- Permanent redon barrier promulgate subpart T.
disposal sites. ne stay will remain in on the tailings impoundments, as well effect until the A ency resands the as interim milestones.To this end NRC C.Memorundum of Understandi"I E
between EPA and NRC uranium mill ea%gs NT.SHAP et 40 and the Ag sement States have already Cat put 61, subpart T. and amends the requested the licaceoes to voluntarily in July of1991.DA.NRC and the UMTRCA standards at 40 CFR part 192 seek amended licanoes and have i
(Hected Agreement States estaredinto to ensure that the remalning rules are as processed those requesta. Moreover.
j discusalons over the dual regulatory protective of public health with an NRC and the affected Agreement States programs utablished under UMTRCA ample margin of safety, as would have agreed to enforce the provisions of i
i and the CAA. In October 1991.those implementation of the CAA rule being the amended licenses to ensure discussions resulted in a Memorandum rescinded. If DA fails to complete these compliance with the new schedules for cf Understanding (MOU)between EPA. rulemaking byJune 30,1994,the stay emplacing a permanent radon barrier.
NRC and the Agreement States which will expire and the requirements of including interim milestones, and to I
cutlines the steps each party will take subpart Twill become effecties.
ensure (and verify) compliancs with the l
to both eliminate regulatory redundancy In a second notica published on 20 pCL/m -s Dux standard.
a and to ensure uranium mul taihngs December 31,1991, the Agency piles are closed as orpeditiously as proposed to rescind the hT.SHAPs for III Legal B &818 I f PFDP05'I l
practicable. See 56 FR 55434 (MOU radionuclides that appear at 40 CFR part A. Statutory AuthorityforProposal rebreduced as part of proposal to stay 61 subpart T.as they apply to su part T); sec also 56 FR 67537 (final nonoperational uranium mill tallings b
1"EmP asis UP "Dditious Radon rule to stay subpart T). no primary disposal sites licensed by the NRC or an Control g
purpose of the MOU is to ensure that Agreement State (56 FR 67561).
He crux of today's proposalis twners of uranisun mill talung disposal In the third notice. EPA published an additional regulatory tueans to ensure j
sites that have ceased operation. and advanced notice of proposed expeditious and permanent centrol of ewners of sites that wiu cease operation rulemaMng to amend 40 CFR part 192, redon emissions from uranium mill t
i
Federal Fagister / Vol. 58. No.108 / "hesday. Jun2 s,1993 / Proposed Rules 32177 tailings piles after active mi%g This intent is in.plemented by During the time period forNRCto operations have ceased.The imputance ans in ette D. Forinstsam NHC conform its regulations to EPNs NRC is d timeltnes is inherunt to UhmtCA. n piements EPNs generalatendards for not expected to" suspend the is eridanrad by Congreas*ecrian in title D through Beansing of active implementatfan or enforcement ofits amending UMTRCA to require prompt tathngs attes. which henness maast be regulations." H. Conf. Rep. No.97-484 EPA rulemaking action, and bythe timely modmed to cxmform to at 45.
further made clear its actual terms of t10e H.R is also anytmumental standards. MRC hoenset iriew that implementation evidenced by the legislative history for levuod or renewed after enactment of proceed immediately, going so for es to Ctle H. contained in UbmtCNs two.
UMTRCA must contain the terms and note that for title I sites "the '7. year l
Houm Repet, which n=Fr=a conditions which the NRCdeterminea clock' for the completion of cleanu l
- s purpose to require to be nomssary to sesure that, or to
- *
- begins to run (forDOQ expeditious pub!!c haahh prosaret=
termination or tus Econes the 1.19E1." Jd. As to title E eltas, during See H. Rep. 95-1480(D (A 11.1978) will mmply with deconta= Mon. -
the tmnsidan parlh DA to
("HR 1") Datecier and AEnin decommisal and Paria-eion and pmmulgste regulaticas ra==f ties) and H. Rep. 95-1440(Ig standtrds prescri by the NRC although its rules would be (Sept. 30.1978) ("HR 2") (Interstate end can istent with EPNs general standards. during that period)'NRCis==
Farsign Commerce a==dtteel.
. Any heense in effect on the anartment to take such action as it may deem r
tv edla 61978 U.S. Code Cong. &
date of 42 U.S.C. 2113(a) must either necessary, on a H=a===%y-Mcensee
. News et 7433-7474 (UMTRCA catain the terms and conditions of -
basis, to protect pubhc haakh. safety, passed the House onrunh.,14,1g7g, renewal,or comply with paragro D) and the environment."Jef. et 47 and was afgned into Inw on Nov. a.
and (2) of section 2123(a) upon Thus, the tive scheme is one of
_ yomptly 1978)'
termination of the H=naa. whidever urgency. EPA te first occurs. Ses 42 U.S.C. 2113(al. His regulations that wm be Both parts of the Houes Report miryor-UMTRCNs storatory language byr(1) provisian, which went into e5ect upon.
impta--*-d at each site Making cieer that UMUICA le primer 0y enactment, meant that Congrees licenstag by NRC. Redan==tami-a em d2mcsed to h=hh risks amociced with erpecsd acnan et each utle B sth ident Sed as the primmy thrust to redan-222 reinees into the whhin thra,orat the most Sve yeam of Pubuchashh,and en tainnes are to be mactment.
contmiled without excepdan.
mvimnment fmm eruntum millta!1 togs in its F 1983 forthe dispoeah and (2) ce2hng for "evwy For eachliomasse such parbd (br adsdag ralu. M acto g
r====ahle effort * *
- to pmeide for d be 3 years bDowing' enactment, er of the January 1983 amendmarris to the dispoed. stabilization and controlin unut the time m which as na='i==='s ucense UMutCA calling terEPAto piamulgate a safe and envimamentally sound
. wonid first be required to be renewed.
rules er loss Rs authority to do oo:"WE manner of such (uranium mill) tailings." wticherer is the songer period * * *.In no (sic) are themfore proceeding to HR 1 et it. HR 2 et 25; HR 1 at 13.
case mov such grace period be longer than 5 establish these standards Expeditious contml of disposed r.mp yars bhowing enactment of(LMac4 expeditiously " 48 FR 19585. EPA noted l
was paramount. At tit e I sites. DOE (in NR 1 et 2t see eleo id. et 23 that of the 27 limneed uranium mills, consuhetion with EPA.NRC and the (authorizing immediate expenditures by only 16 were sp.e.8 had remntly host State) was requimd to quickly DOE and NRC en remediatian).
closed, and others hacfbeen closed for remediate dirposed tailings sites "in.
Morvoeur, while timely some time.ld. EPA mirrored Congress cecord with necessity for reducing the implementation of title U cxruld in miemncing rsdon emissions as the most threatening hazards first."HR 1 et financially or otherwise burden primary source of public health risk 15.7be same expeditiousness was licensees, rather than deley kom these sites, and noted that reden expected of title II disposal s{tes, which implementation. Congress r=""
emissions rates are currently at their should "in all cases be contmiled and these burdens and instructed NRCto puk. Id. EPA then listed the panoply of regulated by States and the Commission. take such hardships into ocx:ount. H.
existing guidance materials including to the maximum extent allowed by the Rap. No. 95-1480(I) at 44. While NRC the ALARA principle (that radin+tnn state of the art, to insure that the public was provided some authority to exposure be umitad to a level"es low and the environment will be pected esasonably isoplement EPA's regulations as reasonably achievable"),and from the harards from the taidngs for as on a rite-by-site basis,it was ensurned proposed thatits UMTRCA standards long as they remain a hazard." Jd. et 17-that in general the regulations would be supplamant" the existing g*tme= in
- 18. To further underscore the urgent implemented expeditious!r.
a mannar that purpose
- the Report statw:
The statuts placed daaAhan upon The -=ittee is convinced that all EPA NRC and the A8"' ment States to (tWs) emnt of es trodso5s bet==en talhngs pose a potennal and ebh.,
proznulgate and conformtheir
- b=!th. safery, and environmemal and nnn=vcosts and benants in e esey es radianon bealth hazard to the public.
respective agulations. See 42 U.S.C.
essume edequets protocuan of the public Legislation is needed now to stabilize and 2021 and 2022. As noted above. F.PA hulth, safety, and the en.;n, s m. trl can control a!! such tailings in a sah und delay in promulgating standards led to be implemented using presentfy available en bmas ally sound menner and to UMTRCA's amendment in 1982.which sechsugves and s,earunstg instruments: and minimtas cr eliminste radiation health eddod language requiring that FPA (3) are reasonable in terms of overaD cosis hazards to the public * * *.
promul ate final title D standards by and M a E
The cunminee, however. is also convtaced October 1983 or lose the right to do so.
Id.at 19587 (ernpharis added).In that it would be e grievous and costly 42 U.S.C. 2022(b) [as amended by Pub.
soliciting comment. EPA explicitly misW to suene a mmedial progmm for L.97-415); see H. Conf. Rep. No. 97-stated that it *' assumed (c) 25-year inocuve d ehes wiewt also enscung 864 at 44.-45, reprintedin 41982 U.S.
opemting and 5-year dry-out" period.
of Qg Code Cong. & Admin. News at 3614-15 and that the Agency was concerned mulsnes' (erpressing concern over EPA delay and about potentially significant risks to erophasizing the importance of public health during those periods.1d.
HR 2 et 29 (emphasis added).
timelinus).
at 19600. Taken tog-ther-by basing its
{
m 32178 Federal Register / Vd. 58. No.108 / Tuesday. Jun] 8.1993 / Proposed Rules l
regulations on presently available" implamenting egencies (DOE and NRC)
(3) Quiviro Mining Co. v. NRC. 902 means, and by expreuing concarn over do so
'tiously.Nothing in today's F.2d 781 (toth Cir.1989) (addressing the transition penode-EPA was pro is intanded to modify the NRC's implementing criteria); and esr* that comphance would occur essential purposes or the essential (4) AMC v. NRC. 902 F.2d 781 (10th expeditiot.aly, without delay. While of the existing regulatory Cir.1990) ("AMCET*) (addressinE as EPA recognized that there would be ame; nther. EPA intends to better amendments to NRC's implementing some lag in time before Snal closun fulfill Congress' mandates by clarifying critaris).
could occur (i.e to allow the tallings to 6 ments.
1.AMCIand AMCD dry).DA certainly was not in prom the 1983 regulations, contemplating a riod of additional or DA inten an expected expeditious The inactive site regulations at issue indefinite delay ceased progress toward radan control once an in AMCIare codiEed at 40 CFR put operations and final closure, active sits ceased mill'ng operations.
192 subparts A-C;b active site R ose s and assumptions EPA " assumed * * * (s) fr-year dry-outa regulations at issue in AMCUare were l'
<r augmented by DA in period after mifling operations had codined at 40 CFR part 192 subpart D.
taking fi. sal action on b rulu.In
===4 and based its regulatices on that and are the subject of today's proposal.
L' sting the major pmvisions. EPA stated assumption. DA did not, however.
Stated generally,the court in AMCI that b rule "(4) (r)equires that disposal explidtly mandate a set period fa.
upheld EPA's inactive alte regulations of uranium mill tailings piles be drying out.in part due to the varichle under UMTECA.except as regards a designed so that, after disposal. radon circumstances at each site,and ale failure to adopt provisions to protect emissions will be limited to 20 (pC1/m. because expeditiousness was implicit to surfeos and groundwater.h courtin s
s)." 48 FR 45927.nelone is one of regulatnry and statutory schemes.
AMCUlikewise upbsid EPA's active immediacy.suggwtinE that the viewed as a whole.
site regulations (including b requirements will apply as soon as Today's propoest does not seek to groundwater protection provisions), and possible, without any more delay than change EPA's rationale or scheme set in so doing rolled upon b extensive te necessary to implement b design forth in its 1983 rule. Rather, through statutory interpretadon set forth in AMC standard.This is emphaalred by EPA minor amendments. it seeks to clarify I.
noting the danger oflung cancer from and supplement that scheme in a The court in AMCIbegan its analysis Malir g radon emissions, a danger that manner that will better support its with IIIMRCA's statutory purposes and exists as much today as it willlater in ' initial intent. Without setting forth structure, quoting the Congressional time.Id. at 45928:
mandatory schedules. EPA generally findings at 42 U.S.C. 7901(a) (set forth Tailings poos a pusent hazard to hmn requires that once a site becomes above). 772 F.2d. at 621. The cmurt also health. Beyond this launedsete but generally nonoperational (i.e., milling operations noted that the 1982 UMTRCA hmited health threat. the tallings are cease), a barder to control redon will be amendments meant that Congress vulnerable to human misuse and to dispersal emplaced as expeditiously as strongly desired that the public health by natural forms for an essentially indefinite Period.
practicable considering technological protection regulations quickly go into feasibility (including factors heyond the effect: " Anxious to institute standards Thus. EPA acted to immediately limit controlof thelicensee). Interim for the mill tailings. Congress also the present hazards and immediately milestones toward emplacement will provided that should b EPA miss the halt h=2ards in the futum by requiring support and better assure this progress.
extended deadline. remedial action that final closure expeditiously occur and post.emE.rmation that the design of would commence using the propos lacament monitoring will following ceased operations.
serve as con.
standards."Id. at 623 (citations -
- 2. UMTRCA's Scheme and Purposes are the coveris working as intended.
Od The addrused b contention Consistent With Today's Proposal B. Interpretive Caselow that a prerequisite to any regulations is Which ClariSes and Better Implements Judidal review of EPA's and NRC's that EPA Snd that uranium mill tailings DA s Edsung Reguladons regulations has resulted in several present a signiScant risk to public Today's proposalis intended to Ell writtan opinions by the United States health. Id. at 627, The court disagreed.
gaps and otherwise clarify EPA's Court of Appeals for the 10th Circuit.
finding that Congress had already cxisting regulations in order to ensure Those opinions interpret UMTRCA in 8Poken strongly on this issue:
the exped2tious, effective. and much the same manner as does EPA-It would be disineenuous to hold. after permanent control of radon emissiona.
redon controlis paramount,and meding Congrns'own statement ofits By making minor amendments to EPA's Congisse intends that EPA and NRC Endings and purposes, that the EPA must existing regulations to expliddy require promulgste regulations to protect public make hs own determination of whether emplacement of a radon barrier as health in a manner that bu immediate
'*d " '"1881*"' P'S' ' 'i' k 'i niSc*nt to 8
expeditiously as practicable considering and long lasting effect.More wanant pgulation undw the UWR1 technological feasibility (including particularly, with exception only as to Id.The court also reviewed the factors beyond b control of the licensee), interim milestones toward matters not at issue today, the courts legislative history, and concluded that upheld EPA's and NRC's regulations.
" Congress chose to consider protecting emplacement, and monitoring to assure includien the agencies' consideration of futun generstions by enacting b that the design of b radon barrieris costs ancIbenents.
UMTRCA and requiring the immediate cffective EPA is better fulfilling It is worthwhile to review the four stabilization and disposalof those Congress' purposes in enacting op(inions interpreting UMTRCA-failings."Id. (emphasis added).
UMTRCA for Title II sites. As set forth
- 1) American Mimng Congress v.
After dispensing with other less above, Congress quite clearly was Thomas,772 F.2d 617 (toth Cir.1985) pertinent issues.the court then seeking, through UMTRCA, to protect
("AMCT*)(eddrusing EPA's UMTRCA addressed EPA's consideration of costs public health from the dangers inactive site regulations);
and benefits. In drawing a middle associated with redon emissions,both (2) AMCv. Thomas,772 F.2d 640 course between cost-benefit today and into the future. and has taken (10th Cir.1985) ("AMCF') (addressing
" optimization"(advanced by industry),
measures to require that EPA and b EPA's UMTRCA active site regulations); and feasibility analysis (advanced by
Fedesal Esgister / Val 58. No. 30s / Tuesdef hee 8. Isas / Psoposed Roles 32179 envirv==='tal poeps). 6e court 3.Caselow Sapptuns The proposed A "j EPA's y
, f== and/or
- ^
determined only that " EPA must Actles -
stay of subpartTand each had consider the costs involved in the hjuecialmterprendons ed fare ht=
- any hund hide smamman ground in aguimim with the of above are t
in As a resuk had as damned above),
m o i
. a -
,ad-.f be., a, _=his reho_id,,,,,rs
.M of Undataling ("MOU") was sped by beno6ts derived." Jd. at 832.
EPA ed NRCentmgime the md b AMCK.b court apphed ks ndon sec6 e gg _
anal to the subpart D active sis
- uranium adH disposal slies; and M" between DA ans (that EPA is luopostag nedeY (2)the QuMrs andAMCM and NRC. As rene-nplated by the MOU*
to clarify and otherwise amendt 772 a.,4a set forth the scope of cast.
aunan==har31'1991.DA took Anal F.2d at 643.h court upheld DA's beneSt consideradoes. inctiwling the g g gb,,,dM* 6 d regulations in theirentermy.
ofrelying earlier aEasts sub artT P
endag sat ma DA's a
extent the --- " am not
%, ** gf" W
charting a saw courea.
notics of psoposed rulemaking under
- "'**h D hl8 Proposalla dineded d clarifying UMiltCA.See 55 FR 67537,67561 and
notbe any undue dahrin aantrolues hgauty dse as zm v.
No.
2.Quivirs Mining andAMCIg adan==ia=iana ence a es site 92-1062 (DC.Qr.). Litigation d m co/vire maingcaseinnehod
,og,"htery
[M.".3*d by NRDC.
d Industry chaBenges to NRCs 1985 mHastanes of progress towards entrol k.v --- % 4 y, g og 6' canaria.which conicum eser and smanitoring proviaises,blEH KPA. Nos. 'to-1058, 90-1053. 90-1068 1980 criteria to DA's UMTECA
- intant sugarding
- W ^ and 90-1974 (D.C.QrJ. NBC AMCand regu H-far active sitas as beshh protodian, and'are Homemake had also Alad as prumulgsted in 1983 and upheld in intended to baterimplement DA's pa.
gg,e pandon int AMCIand AMCH. discussed aboue (the 1983 rules.
reconsidmedan dsubpart T.
undsdying EPA rmdadcas em the EPA has shdy considered castsin its Docusaces an=M==8 with the p
had IP
)
addresses A ge r==e to Propedy consider costs and beno6ts in
,andA=etion of costs and bensSts. Few settle the pending htigation and the promulg eting its 1985 criterk. 866 F.2d if any additional costs willbe tocurred administrative proceeding, avoid
[edon hR s l985 taria, fin g a nm a
t considaration of costs inits 1980 control weys been required.
regulations of NRC hr,=a==A mismaking, coupled w2h DA's Moreover,the cost analysis which DA monoperational uraniuan mill taihngs consideration of costs in its 19a3 active conduced for its 1983 paamaldng.
disposal sites. See 58 FR 17230 (Aprd site rulemaW adequately fulEHad he mmaks mlevant, h today's p@ W90 W m g h t
relatively deferential " cost-benefit encompasses amendments to the agmment under CAA section 113(g)). A mtionahradon" required by UMTECA-UMTRCA lations to clarify and copbof b settlement agreementisalso Id. at 1250.1257-6a.
enhane=im mentatlan of the in docket to this action.
Re6arding NRCs reliance upon EPA's fundamen agulatory scheme he settlement agreement adds earlier consideration of costs, the court contained in EPA's 1G83 UMTRCA comprehensive detail 10 and themby acknowledged ambiguity as to whether
- rules, continues, the approach set forth in the UMTECA requires that NRC consider C. Settlement Agre*=[nt MOU. Ifimplemented, the agreement costs " anew."Id. at 1257. The court ggg
% mg g resolved the ambiguity in leve of NRC.
Two additianalitsess further lain redon 222 emissions at nonoperstlanal deferring to the agency's r=a-ahle the legal basis and saticmale hr
's uranium mill tailings disposal sites cxmstruction:"It is a u'-
proposal:
without h delays and resource ennstruction af ths
- foe <==M-Mr=*
(1J Clean Air Ad soczian 112 expenditures engw.4ered by litigstlan command for the NRCto acospt the DA (including EPA rd-=amg thernmder); and contentions administrative process.
cost-benefit analysis for the revised and It will enable EPAto fulfill the Simpson criteria." Jd. at 1258.
(2) A litigation settlement agreement Amendment requirement that EPA and, b cxrurt in AMCMaddressed themunder,recently entered into by by rule that the NRC reguletary renewed industry challenges, this time EPA and the affected ladustry sad program protects public heahh with as to 1987 amendments to NRCs UMTRCA environsoental groups.
ample margin of safety. It does this,in critaria. 902 F.2d at 782. Among other In response to the daks assodstad part,by conforming EPA's UMT1tCA things, industry again pressed as with litigation.in light of the Simpson regulations to b CAA such that public argument that NRC had failed to Amendment and in erder to fostar a health will be as well protected under adequately consider costs and benefits consensus approach to regulation in this UMTRCA as would implementation of under UMTRCA.Jd. at 783. And again ares. EPA n===='- discussions with Subpart T under the CAA.
~
the court bald that becaum DA had NRC.6 AmericanMirdngCongress Under the agreement,the pending properly considend costs and benefits
("AMC").Hornostake Mining Co the litigation will not be dismissed until in 1983. "NRC performed its due Envuonmental Defense Fund ("EDF")
after certain terms in the agreement are consideration obligation hem when it and b Natural Resources Defense fulfilled. Moreover. the agreement does conformed to the EPA's regulations it Counsel ("NRDC"). Each has a dired not legally bind or otherwise restrid was required to adopt."Id. et 7s4 interest in the matter, all but NRC had EPA's rights or obligations under law;
32180 Fed:ral Register / Vol 58. No.108 '/ Tu sday, June 8.1993 / Proposed Rul:s mtber, by its tarms (paragraph 12), them ne Agency's Ending pursuant to construction and is not intended to is no recourse for a court order to section 112(d)(9) of the Clean Air Ad relieve licensees of other axisting implement the agmement.Indeed,the Amendments of1990, that NRC's requirements, only remedy for faHure to meet the regulatory program the public Site outrol shdl be carried out in terms of the Enal agreement is hedth with an am o margin of safety accordance with a written (radon) activation of the underlying litigation, must inclade a En g that NRC and the tanings cloeum plan. and in a manner his proposalis consistant with the
- ff*CL*d Agreement States am which ensurw that closum activitie
perly considered by NRC in its regulatory program protects pubb,e tailings and the opereting license conforming regulations.
health with an ample margin of safety.
buirements which establish estones for em lecement of a Hrecutru Order 222n in this way. EPA may base its rescission pemianent radon barrier that will Under Executive Order 12291. EPA is finding upon its view of the NRC achieve compliana with the standard required to judge whether this regulatory pmgram contemplated by the on a programmatic and siterspecine regulation if promulgated, would be a MOU at the time of taking final action, basis.
" major rule" and therefore subject to while also providing some assurance EPA is constrained by Congress in the certain requirements of the Order.The that EPA will revisit that finding should scope of the UMTRCA amendments EPA has determined that amending NRC or the affected Agreement States which the Agency may promulgate. EPA subpart D would not result in one of the substantially deviate from that program. does not have the authority to provide adverse economic effects set forth in
Fes 1 Register / Vol. 58. No.108 / Tuesday, Juns 8.1993 / Proposed Rules
$2185 emedan I of the Order as grounds im Uranhas Mn! Taillags Remenen chasmt Aa' in) Foceers thecorsrdgthe
-&n ~ a regulation to be a " son)w
.- ef ters.Pek1.36-404 se somseded.
Jicensee mesas because b nedonwide comph==n=
Subpart n_,
_1_1 musing deley in the Min tb -
rule regulation is not snejar appuesble Boonee for tissely costs do not meet the 8200 =Uha" l
emP umm**t de' Penemnt redan
- 2. Section 192.31 ts amended by thsenhold, the regulation does not
" A~ady increase prices or addinknew hs (k) 0),tal. (n),
barrier to addm compliance with.
(o)an (p)to follows:
including attainsment of the 20 pWm8-pr'oduction costs. and the on s flux standard notwithstanding the does not asues signirmane verse 4 ta2.st cuanseses and erasevenweises. good inith adarts dthe boenses to e5ects on domeouc competition.-
echine complianos.
l
- P ayment,invad===t. productivity.
(k) As -; : _'_ -'o', as --d:- ^ '-
(*I
--- N "*'"' **t * **"I""
innovation or competition in breign considering tec~"
Eessibehty "iH I*
f
- maken,
,,,,,,, qg gg, being the continued placement
& Agencyhas not conducted a considering:
colcharederie6cs of maiuan k r.M meterial oris in i
llagu.atory kn Analysis (It1A)of this d h talungs site:the Emiu d standby status for andplacommit. A tionbecaum this action avau6e echadogy;es need for tallings pik orinw
-- as not mnariwe a major rula.nis consis-wie - - "-
OPeretional freen th day that uranian regulation has ben reviewed by the is of o&er regudtory byg*m mesterialis Aret pieced in the OfEco of um
=t and Budget and p,,,,
and femare beyond b Pile er==pa==d====euntilthe day anal their written mmmants (if any) are control of b h===== ne phrees closure begina.
evallable in the public docket.
""I*'osable IPI MI388"'g"**"'a*r*&e som pwudts considesedan of the cost of g, by c Resulotarynexibility Anatyais com:p"uance only to the essent g
gy with7hSeo"p'It
'"" ~8M'Joided for by um at se W"
season sos of h Reguletary.
achievarv
'**"d*8Y,
nexibuity Act. 5 u.s.c sos.
m%k EPA to prepare and ineks for D) Annilable mens comment an " initial reguletary
- Ch"*I'88" *"d I"P *Ci"8
- 3. Sectnen 192.32 as===== dad by I
Boxibility analysis" which describes the
- Permanent redon barria on urentum redesignating peregraphs (a)(3) and effect of the proposed rule on small miu e mage orinnpoundments, (e)(4) es paragraphs (a)(5) and (a)(6), and business entities. Howeeer, esctice whid term not be conseued to by adding new peregraphs (aX3)and (a)(4),to read es douows:
605(b) of the Act pmvides that an.
include esseures or an: lysis not be required when the head technique that impon cars that gteemt assnewes.
cf en A ency certines that b rule wtll am paly excessin as messed by (a) * *
- E not. if promulgsted, have a signincent practice within the industry (or one that (3)(i) Uranium miU ta!!!ngs, piles or economic impact on a substantial is reasonably analogous) and pmvided impoundments that am nonoperational number of small entities.
there is reasonable progrees toward and sub}ea to a licanas by the Nuclear it was found in the 1989 rule for 40 emplacement of a permanent radon Regulatory Commission or an CFR part 61, subpart T that them was no barrier. To determine grossly exoonsive Agmement State shalllimit releases of signi5 cant impact on small business costs, the relevant baseline against redon 222 by emplacing a permanent antitles.There has been no change in which cost inemases shaU be mmpared redon barrier constructed to achieve this finding, since no new tailings piles is the cost estunate for tallings compliance with. induding attainsnent have been constructed since 1989.
impoundment dosure contained in the of. the limit on releases of redon.222 in Pureaant to section 605(b) of 6 lioenwe's tailings closum plan, but costs $ 192.32(b)(1)(ii). This permanent redan Regulatory Flexibihty Act. 5 U.S.c beyond such utimates shall not barrier shan be constructed as 605(b). the Administrator certiSes that automatically be considemd grossly this rule win not have a signi$ cent excessive.
~
expeditiously as practicable considering technological feasibility (induding economic impact on a substantial (m)(Rodon] Tailings Closure Plan factors beyond % control of %
number of small entities.
means the Nuclear Regulatory licensee) after the pile or impoundment List ofSu% in 40 CFR Part 192 Commission or Agreement State ceases to be operational. Such control epproved plan detailing activities to ahan be carried out in accordance with Air pollution control. Environmental accomplish closure of the tafN =
a written (redon) tailings closure plan to F
rotection. Groundwater protection.
impoundment through timely be incorporated by the Nudear ous constituents. Hazardous emplacement of a permanent redon Regulatory Commission or Agmement materials. Radiation protection. Radium. barrier constructed to achieve State into individual site lit-mas Radon. Thorium. Uranium.
compliance with,induding attainment (ii) Ibo Nuclear Regulatory -
Dated: May 28.1993.
of.the 20 pCL/m8-s flux standard. A Commission or Agreement State may caml M. areweer, tailings dosure plan shallindude a approve a licanam's request to extend Admisurerator schedule for key redon closure the time for performance of milestones milestone activities such as wind blown if, after providing an opportunity for s
apter F of Oo e of tallings retrieval and placement on the public participation.the Nudear tit] lau.f pile, interim stabilization (including Reguletory Commission or Agmement Rr ons is proposed to be amended as llows:
dewatering or the removal of State Ends that compliance with b 20 fmestanding liquids and recontouring).
pC1/m2-s flux standard has been PART 192yAMENDED]
and radon barrier construction to demonstrated by the licensee in the achieve compliance with the 20 pCi/mt-manner regtured in $ 192.32(a)(4)(1).
- 1. The authority citation for part 192 s flux standard as expeditiously as Only under these circumstances and continues to read as foDows:
pacticable considering technological during the period of the extension must j
Authority: Sec. 275 of the Atomic F.nergy feasibility (includiog factors beyond the comphance with the 20 pC1/m8-s flux.
j Act of 19M. 42 tJ.S.C 2022. as added by the control of the licensee).
standard be demonstrated each year.
]
9
nicb
- teocrat Register / vol. 58. No.108 / Tuesday. June 8.1993 / Proposed Ruhs n2 Nuclear Regulatory Commissica er achieve ccmpliance with, including desc-ibed in 40 CFR part 61,cppendix Agreement State may extend b final attainmant of the limit on releases cf B. Method 115, or any other 1
cximpliana date for emplacement of the redon-222 in $ 192.32(b)(1)(ii). and the measurement method proposed by a r
permanent radon barrier, or relevant monitoring aquirements of licensee that the Nuclear Regulatory milestone. based upon cost if the new
$ 192.32(e)(4). No such authorization CommI=sian or Agreement State date la established after a finding by the applicable during b closure process approves as being at least as effective as Nuclear Regulatory rammission or may be used as a means for delaying or EPA Method 115 in demonstrating the Agreement State, after providing an otherwise impeding emplacement of the effectiveness of the permanent radon opportunity for public participation, par nanent radon barrier over the barrier in achieving compliance with that b licensee is making good faith remainder of the site and in a manner the 20 pCUm*-s flux standard.
efforts to e=placx, a permanent redon that will achieve compliance with the.
(ii) When phased emplacement of the barrier constructed to achieve. including 20 pCum -s flux standard, averaged permanent redan barrier is included in a
st'ainment of, b 20 pCUmt s flux over the entire impoundment..
the applicable (radon) tallings closure standard; the delay is consistent with Authorization to remain acx:easible or to plan,then redon flux monitoring i
the definition of"avallable technology" accept materials after emplacement of a required under 6192.32(a)(4)(1) shall be in $ 192.31(1);and b delay will not permanent redon barrier may on1 be conducted, however the licensee shall resultin redan releases tha't are
- made provided the NuclearRegu be allowed to conduct such monitoring determined to result in si cant Commission or Agreement State makes for each ; tion of the pile or incomentalriak to b lic health.
a finding, constituting final agency impoun at on which the redon (iii)no Nuclear R actics and after providing an barrier has been emphced by Commincion or Agreement State may.in opportunity ublic participation. -
conducting flux monitoring on b response to a request from a lir=naaa, that the site ' continue to achieve the closed portion.
~
cuthorize by licones orlionnes 20 pCUm -s fhtx standard when a
=
=
amendment a portion of the alle to sve over the entire impoundment.
4.Section 192.32(b)(1) footnote remain accessible to uranium (4) Upon om lacement of the number i ts revised to read as follows:
roduct material as de ed in section permanent red barrier pursuant to.
11 )(2) of the Atomic Energy Act. 42
$ 192.32(a)(3), the licensee shall conduct $132.32 standarda.
i U.S.C. 2014(e)(2), or to accept such appropriate monitoring and analysis of
=
=
materials that are similar to the the redon-222 releases to demonstrete (b) * *
- physical, chemical, or radiological that the design of the permanent radon gg)...
~
characteristics ofin-situ urenium mill barrier is effective in limiting releases of i
tailings and associated wastes, from redon-222 to a levelnot exceeding 20
% standard applies to design with a other sources, either during the closure pCUm8-s as required by
"""I' "*89*3"'*'
process or after emplacement of a
$ 192.32(b)(1)(ii). This monitoring shall
[Dt Doc. 93-13377 Filed 6-7-93; 8.45 ami pertnanent redon barrier constructed to be conducted using the procedures esasso cooc eseup O
e 3
e e
l
~
i d
__~
.mm.
-3
.,w.
m,.,-,,
- my
,.n.,
y-,-.-
--.,s ry,e-p
-,q-.,----.
- +
i
[7590-01]
NUCLEAR REGULATORY COMMISSION 10 CFR Part 40 l
RIN 3150-AE77 Uranium Mill Tailings Regulations; Conforming NRC Requirements to EPA Standards 1
l l
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 to proposed regulations published by the Environmental Protection Agency (EPA). The proposed conforming amendments 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 w
e-w v-c--
I so, but the Commission is able to assure consideration only for comments received on or before this date.
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 regulatcry 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:
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 2
b
l i
regulations included a design standard requiring that the tailings or wastes from mill operations be covered to provide reasonable assurance that radon I
released to the atmosphere from the tailings or wastes will not exceed an average of 20 picocuries per square meter per second (pCi/m's) for 1000 years, j
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 l
expeditiously closed and the 20 pCi/m's standard would be met within a
)
l reasonable period of time. Criterion 6 of appendix A to part 40 is a design 3
standard.
Criterion 6 does not require verification that the radon releases f
meet this " flux standard."
I i
In response to the separate requirements of the Clean Air Act (CAA), EPA l
l 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 pC1/m's, l
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 I
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 3
~
j i
i i
l within the facility to demonstrate compliance with the emission limit, as well as specific reporting and recordkeeping associate 1 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 Resources Defense Council (NRDC).
In addition, AMC, the NRC, and others filed an administrative petition for reconsideration of subpart 1.
Among the concerns of these parties was the argument that the overlap between EPA's subpart D 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 3
provision, section 112(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 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 l
and the CAA.
In October 1991, those discussions resulted in a Memorandum of Understanding (MOU) between EPA, NRC, and the affected Agreement States. The M00 outlines the steps each party would take to both eliminate regulatory redundancy and to ensure uraniua mill tailings piles are closed as expeditiously as practicable.
(The MOU was published by EPA as part of a proposal to stay subpart T on October 25, 1991 (56 FR 55434).) The primary i
purpose of the MOU is to ensure that the owners and operators of all disposal 4
l l
i i
sites that have ceased operation and those owners and operators of sites that will cease operation in the future effect emplacement of a 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 M00 presents a goal that all current disposal sites be closed and in compliance with the radon i
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 MOV 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.
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 j
i 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 4
5 y-m TT T'-
~
t t
l advance notice of proposed rulemaking to amend 40 CFR part 192, subpart D, to l
require that site closure occur as expeditiously as practicable considering technological feasibility and to add a demonstration of compliance with the i
design standard for radon releases (56 FR 67569). The stay of effectiveness 1
of subpart T is to remain in effect until EPA takes final action to rescind l
subpart T and amend 40 CFR part 192, subpart D, to ensure that the remaining l
t 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 of 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 f
agreement was reached to settle the pending litigation and the administrative proceeding, avoid potantial future litigation, and otherwise agree to a consensus approach to regulation of licensed non-operational uranium mill tail 16gs disposal sites.
EPA announced the settlement agreement in a' notice l
P 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 t
l further defined steps for implementing the MOU.
It called for the NRC to amend its regulations ir appendix A of part 40 to be substantially consistent with a specific regul; tory approach described in the settlement agreement.
It also described acti u s to be taken by the parties to the agreement which were intended to implement the MOU and eliminate further litigation with respect to subpart T.
On June 8, 1993 (58 FR 32174), the EPA proposed minor amendments to 40 CFR part 192, subpart D, to ensure timely emplacement of the final radon 6
i
I 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 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 I
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.
i 7
l
Coordination with Affected NRC Agreement States The affected Agreement States of Colorado, Texas, and Washington were 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 i
the State of Illinois, which is the State that most recently assumed responsibility for lle(2) byproduct material (byproduct material as defined in section lle(2) of the Atomic Energy Act), but which has no affected uranium byproduct material licensees. All four of these Agreement States submitted j
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 Comment.
The licensee should be required to maintain its records pertaining to radon flux verification until site transfer to DOE or the State.
i The DOE or the State may elect to obtain such records upon transfer of the i
site. Also, all records relating to decommissioning and reclamation should be transferred at this time.
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.
8 i
P Comment. The 30-day limit for time elapsed between remediation activities should be removed because, in.some cases, there can be no real i
point where one activity ends and another starts.
Response. This additional timeliness crittrion has been deleted in the proposed rule. The NRC agrees that the timeliness requirements are adequate without this provision and that it could create soma problems. Although the i
draft provision contained an exception for factors such as weather, it is I
recognized that the weather during periods longer than 30 days would routinely be expected to preclude certain reclamation activities.
i Comment. The term "as soon as reasonably achievable" in paragraph (2) 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 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 operation.
If the whole impoundment is involved in waste dispesal and no reclamation activities are proceeding, the impoundment would be considered operational and continue to be under l
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.
9 w'.
.-+--e em-...m-e-
-,me,-
--,%--w.,.m-v,--
-,w-,,
an-yv,
.-m--
s e. c g s, -..
v--
Comment. Why are the implementation time limits in the preamble omitted from the rule?
i Response. The time periods for completion of the final radon barrier discussed in the preamble of seven years after the end of operation, or December 31, 1997, for those uranium mill tailings impoundments which were non-operational at the time of the MOU, are general goals of the MOU 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 as a condition of each license considering site specific factors which could affect the feasibility of meeting this general goal.
Comment. The definition of operation 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 I
i 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, radon releases would be controlled to the same level as the design standard for closed impoundments. Also, there are financial assurance requirements to 4
assure adequate funds for closure.
Final action on a proposed NRC rule to require timeliness in decommissioning (January 13, 1993; 58 FR 4099) may 1
affect this situation.
10
Comment. One of the factors that could cause a delay in achieving reclamation completion at certain impoundment site' is groundwater remediation. Because the time required for gr# :-ater 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 pos;1ble interactions with radon control activities when setting the schedule for key milestone activities. The definition of factors beyond the control of the licensee need not include a list of possible factors. A list of potential factors 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 inpoundment 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 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.
11
)
J Comment. We recommend deletion of the parenthetical phrase "..(i.e.,
j 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 p9ragraph (1) of Criterion 6A) has been i
revised to include the words "if applicable", with a sinilar intent as the i
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.
Comment. Although there must be public particip
., requiring public input every time a milestone is not reached, or cannot be reached, 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.
12
,y
.m.
v-
,nn, _ _ ~
-w r,-
m--*
l Even if EPA deleted this implementation detail from its final rule, these l
provisions would be necessary to satisfy the settlement agreement.
Comment.
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 emission.; 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 l
through case-by-case licensing actions.
Comment. Although it may generally be unnecessary to monitor thorium byproduct materials for radon after installation of an appropriately designed l
cover, the necessity for monitoring should be based on the radiochemistry of the byproduct materials, not whether they are labelled uranium or thorium l
byproduct materials.
It would be imprudent to discount the environmental and I
radiation health and safety considerations related to radon-222 from the l
thorium byproduct materials or the potential impacts from any thorium byproduct materials piles based only on their anticipatad chemistry. All lle(2) byproduct materials should be charact9rized by the concentrations of radionuclides present to ascertain the need for a radon barrier and before rescission of monitoring.
j l
l 13 l
l
~
j
=
=
=--
j i
i j
Response.
In the case of either uranium or thorium byproduct n:aterial i
disposal, the NRC considers the design standard of existing Criterfon 6 i
j (paragraph (1) in proposed text) to be of primary importance in the control of
{
i radon releases from closed tailings impoundments. Not extending the f
4 j
additional verification requirements of this proposed rule to thorium
[
i byproduct materials does not discount the environmental and radiation and l
health and safety considerations related to radon releases from thorium byproduct material. The NRC does not consider it necessary or appropriate to require radon measurement generically for closed thorium mill tailings f
y impoundments. This proposed rule is intended to conform to proposed revisions.
I 4
to 40 CFR part 192, subpart D which does not extend to thorium mill tailings.
Note, the need for a radon cover meeting the design requirements is determined by concentrations of decay products of both uranium and thorium-(existing provision appearing at paragraph (6) of the proposed text of Criterion 6).
The factlity of concern to this State is unique in that the waste is thorium i
tailings with significant concentratiens of radium-226.
Because of the i
i proposed Division 2 level of compatibility, this State may add further l
requirements in this case to address this unique situation under the provisions of section 274o of the Atomic Energy Act discussed below.
A few minor clarifications were also made as a result of State comments.
Issue of Compatibility with Agreement States j
l i
l The Commission proposes these changes as Division 2 matters of 5
l compatibility.
Under Division 2, States must adopt the provisions, can be i
)
t j
more stringent, but cannot be less stringent. This designation is compatible I
I 14 l
/
i h
I b
t
f.
I I
with section 2740 of the Atomic Energy Act (AEA) in that States have explicit authority to be more stringent than requirements adopted by the Commission; however, section 2740 also provides that the Commission must notice the State's proposed more stringent alternative requirement for comment and concur t
in the alternative in order for the States to exercise this option.
Illinois was the only State that commented on the proposed Division 2 level of I
compatibility and was in favor of Division 2 in order that the State may require more stringent monitoring of radon.
f Proposed Rule l
l 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 to EPA proposed amendments to 40 CFR part 192, subpart_D, concerning non-i operational, NRC or Agreement State licensed mill tailings sites.
Existing l
Criterion 6 of appendix A to part 40 requires that an earthen cover (or i
approved alternative cover) be placed over uranium mill tailings to control i
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 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 artendments to Crfterion 6 apply to uranium mill tailings only.)
15
-<-.----v-4-
r- -.. y s-,w,-
m_.-,,,y-,.
.-9-wey e-m,.w.iwv.~
9 w.9 7, v.m.
9 3e9-r g p 9;p.-7,--p.,q,--9g
i 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
'].
i 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 Criterion 6 Ki 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 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 D, 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 i
inspection at the NRC Public Document Room, 2120 L Street, NW. (Lower Level),
Washington, DC and will be provided to affected licensees.
Because of practical reasons, the verification of radon flux levels must 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
l i
i significant degradation of the earthen barrier occurs. The NRC will consider f
this in a final determination of compliance with Criterion 6.
The NRC could f
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.
l Paragraph (3) of the proposed revision of Criterion 6 would add a t
requirement that, if the reclamation plan calls for phased emplacement of the final radon barrier, the verification of radon flux be performed on each i
t 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 I
barrier. A one-time report that details the method of verification is to be l
t 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 compliance. These reporting and recordkeeping requirements are comparable to l
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 tailings cover design standard.
l The proposed Criterion 6A would address the timeliness of satisfying Criterion 6 for uranium mill tailings. The new Criterion 6A would require 17 it 5
1
l that the emplacement of the earthen cover (or approved alternative cover) be carried out in accordance with a written, Commission-approved, rec'..'mation 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 radon barrier (and erosion protection features) as expeditiously as practicable considering technological feasibility after the pile or 6
impoundment ceases operation.
In keeping with the MOU, the implementation of this timeliness requirement will have a goal of completing the final radon l
l 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 Criterfon 6A, definitions are proposed to be'added a
to the Introduction of appendix A to part 40 (in alphabetical order with j
existing definitions) for: as expeditiously as oracticable considerina technoloaical feasibility, available technoloav, factors beyond the control of the licensee, milestone, operation, 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 planning if these activities are 8
addressed in a single document.
(The proposed rule would also allow this i
I reclamation plan to be incorporated into the closure plan, which includes t
i 18 -
i e
L-
l l
other activities associated with decommissioning of the mill.) A definition of final radon barrier is added to facilitate the drafting of clear regulatory text and to eliminate any ambiguity with respect to compliance with the i
20 pCi/m's " flux standard" after completion of the final earthen barrier and not as a result of any temporary conditions or interim measures. This j
definition excludes the erosion protection features which were not a subject of EPA's proposed rule.
Factors beyond the control of the licensee would be defined as factors proximately causing delay in meeting the schedule in the applicable i
reclamation plan for the timely emplacement of the final radon barrier notwithstanding the good faith efforts of the licensee to complete the i
barrier. Consistent with the further description in the preamble to EPA's proposed rule, these factors may include, but are not limited to:
l 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 licensee's i
facility that would preclude or delay the performance of activities required
{
for compliance; Labor disturbances; Any modifications, cessation or delay ordered by State, Federal, or local agencies; l
Delays beyond the time reasonably required in obtaining necessary I
government permits, licenses, approvals or consent for activities described in 19 l
4 3
v.--
~
i i
the reclamation plan proposed by the licensee that result from agency failure l
to take final action after the licensee has made a good faith, timely effort I
to submit legally sufficient applications, responses to requests (including relevant data requested by the agencies), or other information, including i
approval of the reclamation plan; and j
An act or omission of any third party over whem the licensee has no i
control.
f In the definition of available technoloov, the phrase "and provided i
there is reasonable progress toward emplacement of a permanent radon barrier" l
J is not included as it seems inappropriate within the definition and the concept is incorporated into the standard itself, i.e., Criterion 6A.
The definitions for as expeditiously as oracticable considerina f
technoloaical feasibility and r3clamation plan have been specifically l
identified as applying to only Criterion 6A 'to prevent any potential l
misapplication. This has not been done in the case of the other definitions because either the terms are not used elsewhere in appendix A or are used consistently with the definitions proposed.
I The proposed rule would go beyond EPA's proposed rule by including the erosion protection barriers in activities to be completed as expeditiously as
.r j
practicable considering technological feasibility. However, the proposed rule t
would not require that enforceable dates be established as a condition of j
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 i
erosion protection is completed before the barrier could degrade significantly while allowing mere flexibility in this regard than for the " key reclamation 20 y
v q
sewa
+-i ma.
t.,y---
g,3,-
esq
,,m--r
,,aa
,w.:g.n,,-yg-
+,,wggg,,.p-g-w.
,,~w
,,my,w-w.--
a w,-
wwar-
,--y 3-w-esr tv-we v, - e -- evew e-w
=,v,---
milestone activities." Allowing significant degradation of the cover before completion of other aspects of the design could violate the design basis.
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 reclamation milestones.
(Plant ing for reclamation activities with Commission approval is required by existieg regulations.) The process of approving those reclamation plans, at least those portions dealing with control of radon emissions, and amending 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 l
reclaimed with varying degrees of completion. Other affected NRC licensees are one whose impoendment has ceased operation 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 extenc the time allowed for completion of key milestone activities once enforceable dates have been established. An opportunity for public participation would be provided in a decision to extend the time l
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 21
this basis alone.
In addition, the Commission may approve an extension of the final compliance date for completion of the final radon barrier based upon j
cost, if the Commission finds that the licensee is making good faith efforts to emplace the final radon barrier, that the delay is consistent with the definition of available technoloav, and that the radon releases caused by the 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/m's, verification of radon levels will be required annually.
Paragraph (3) of Criterion 6A would allow for the continued acceptance of uranium byproduct material or such materials that are similar in physical, chemical, and radiological characteristics to uranium mill tailings and associated wastes, 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 conform with proposed 40 CFR 192.32(a)(3)(iii).
"During closure activities" could include the period after emplacement of the final radon barrier.
In this circumstance, i
the Commission may except completion of reclamation activities for a small portion of the impoundment from the deadlines established in the license.
The proposed rule would specify that the verification requirements for radon releases 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.
22
---w r
r- " " - - - ' - ' +
rt -"
- ?w"'
- '-'v-
"=
The opportunity for public participation in the decisions made under Criterion 6A would be in keeping with the MOU and the settlement agreement and would be made through a notice in the Federal Register providing an i
opportunity for public comment on the proposed license amendment.
This notice 1
l would also provide the opportunity to request an informal hearing in accordance with the Commission's regulations in 10 CFR part 2, subpart L.
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 I
of the date for performance of milestones, including an extension of the date for emplacement of the final radon barrier, based upon a demonstration that 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 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 23
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 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.
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 available for inspection in the NRC's Public Document Room.) The final, j
effective amendment to appendix A must 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.
Finding of No Significant Environmental Impact: Availability l
The Commission has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in subpart A of 10 CFR part 51, that this rule, if adopted, would 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 24 9g
_,y--
-,.y.,
q p
-s._.,,
m..,.
y
.y w
i the final radon barrier is completed in a timely manner and is adequately constructed to comply with the applicable design standard. Thus, it provides an additional assurance that public health and the environment are adequately l
protected. Becaust. the proposed rule is not expected to change the basic l
l procedures or construction of the radon barrier, there should be no adverse 1
environmental impacts. The environmental assessment and finding of no j
l 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.
Paperwork Reduction Act-Statement This proposed rule amends information collection requirements that are subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). This j
i rule has been submitted to the Office of Management and Budget for review and approval of the paperwork requirements.
Public reporting burden for this collection of information is estimated 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 instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send 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-7714), U.S. Nuclear Regulatory Commission, Washington, DC 20555; and to the Desk Officer, Office of 25
__.__,.,__,...m
., _.. '... ~.,.,. _. _
_ _,, _. ~
i
i 1
Information and Regulatory Affai 2, NE08-3019 (3150-0020), Office of Management and Budget, Washington, DC 20503.
Regulatory Analysis 4
j The Commission has prepared a draft regulatory analysis on this proposed regulation. The analysis examines the costs and benefits of the alternatives considered by the Commission. The draft analysis is available for inspection in the NRC Public 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 Commission, Washington, DC 20555, (301) 492-3638.
l The Commission requests public comment on the draft analysis. Comments on the drah. analysis may be submitted to the NRC as indicated under the ADDRESSES heading.
l h
i Regulatory Flexibility Certification i
4 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,
)
4 i
have a significant economic impact on a substantial number of small entities.
1 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 companies that might qualify as small businesses under the Small Business Administration size standards, the Regulatory Flexibility Act incorporates the definition of small business presented in the Small Business Act. Under this definition, a small business is one that is independently owned and operated i
26 i
(
1
and is not dominant in its field.
Because these mills are not independently i
owned, they do not qualify as small entities.
l 1
List of Subjects in 10 CFR part 40 1
Criminal penalties, Government contracts, Hazardous materials transportation, Nuclear materials, Reporting and recordkeeping requirements, f
Source material, and Uranium.
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, j
i as amended, and 5 U.S.C. 553, the NRC is proposing to adopt the following amendments to 10 CFR part 40.
f PART 40 - LICENSING OF SOURCE MATERIAL i
1.
The authority citation for part 40 continues to read as follows:
1 AUTHORITY: Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68 Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs. lle(2), 83, 84, Pub. L. 95-l 604, 92 Stat. 3033, as amended, 3039, sec. 234, 83 Stat. 444, as amended (42 U.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,.'244, 1246 (42 U.S.C.
5841, 5842, 5846); sec. 275, 92 Stat. 3021, as amended by Pub..L.'97-415, 96 l
Stat. 2067 (42 U.S.C. 2022).
27 Enclosurt 2
-w
+,r.g y
+..,.,,, -., - -,,,,, -
=,,,,,7,,,~...,y,,%,-.,,,
,,p3g-y-s y,,,p
,y--y.
g*p,,,,-y
i l
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).
2.
In appendix A, add the definitions of as expeditiously as oracticable considerino technolooical feasibility, available technoloov, factors bevond i
the control of the licensee, final radon barrier, milestone, operation, and reclamation plan to the Introduction in alphabetical order; revise l
Criterion 6; and add Criterion 6A to read as follows
(
Appendix A to Part 40--Criteria Relating to the Operation of Uranium Mills and 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 exceditiousiv as oracticable considerino technolooical feasibility, for the purposes of Criterion 6A, means as quickly as possible consioering:
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 technoloov.
28
Available technoloav means technologies and methods for emplacing a final radon barrier on uranium mill tailings piles or impoundments.
This term 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 l
automatically be considered grossly excessive.
l Factors bevond the control of the licensee means factors 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.
Final radon barrier means the earthen cover (or approved alternative cover) over tailings or waste constructed to comply with Criterion 6 of this appendix (excluding erosion protection features).
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 af byproduct material or is in standby status for such placement. A pile or impoundment is in operatiehj from the day that byproduct material is first placed in the pile or impoundo ent until the day final closure begins.
29
f Reclamation plan, for the purposes of Criterion 64, means the plan 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 in the closure plan; the detailed reclamation plan may be incorporated into the closure plan.)
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 5
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 i
from thorium byproduct materials, to the atmosphere so_as not to exceed an l
l average' release rate of 20 picocuries per square meter per second (pCi/m's)
- In the case of thorium byproduct materials, the standard applies only l
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.
RaCa will come from both byproduct materials and from covering materials.
Radon 30 1
o I
i i
1 to the extent practicable thrcughout the effective design life determined t
pursuant to (1)(i) of this Criterion.
In computing required tailings cover l
thicknesses, moisture in soils in excess of amounts found normally in similar r
soils in similar circumstances may not be considered. Direct gamma exposure l
from the tailings or wastes should be reduced to background levels. The l
effects of any thin synthetic layer may not be taken into account in l
determining the calculated radon exhalation level.
If non-soil materials are
(
proposed as cover materials, it must be demonstrated that these materials will f
not crack or degrade by differential settlement, weathering, or other mechanism, over long-term intervals.
i (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 barriers 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 j
radon barrier is effective in limiting releases of radon-222 to a level not l
exceeding 20 pCi/m's using the procedures described in 40 CFR part 61, j
appendix B, Method 115, or another method of verification approved by the
{
Commission as being as least as effective in demonstrating the effectiveness of the final radon barrier.
(3)-When phased emplacement of the final radon barrier is included in the applicable reclamation plan, the verification of radon-222 release rates required in paragraph (2) of this criterion must be conducted for each portion emissions from covering materials should be estimated as part of developing a closure plan for each site. The standard, however, applies only to emissions from byproduct materials to the atmosphere.
31 i
l
~
of the pile or impe andment as the final radon barrier for that portion is empl aced.
(4)-Within ninety days of the completion of the required verification in paragraphs (2) and (3) of this criterion, the uranium mill licensee shall report to the Commission 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 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 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 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 I
unless such portion contains a concentration of radium in land, averaged over i
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 the first 15 centimeters (cm) below the surface, and (ii) 32 w
w
i -
l 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 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 further 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 constituents, leachate, contaminated rainwater, or waste decomposition products to the ground or surface waters or to the atmosphere.
Criterion 6A (1)-For impoundments containing uranium byproduct materials, actions required to achieve compliance with Criterion 6 must be completed as expeditiously as practicable considering technological feasibility after the pile or impoundment ceases operation. These controls must be carried out in accordance with a written, Commission-approved reclamation plan. Deadlines for completion of the final radon barrier and the 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 recontouring.
(2)-The Commission may approve a licensee's request to extend the time for performance of milestones if, after providing an opportunity for public participation, the Commission finds that the licensee has adequately demonstrated in the manner required in paragraph (2) of Criterion 6 that releases of radon-222 do not exceed an average of 20 pCi/m's.
If the delay is 33
r t
approved on the basis that the radon releases do not exceed 20 pCi/m*s, a i
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 Commission has established the date in the reclamation plan for the milestone l
for completion of the final radon barrier, the Commission may extend that date l
t based on cost if, after providing an opportunity for public participation, the Commission finds that the licensee is making good faith efforts to emplace the i
final radon barrier, the delay is consistent with the definition of available technoloov, and the radon releases caused by the delay will not result in a significant incremental risk to the public health.
(3)-The Commission 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 uranium mill tailings and associated wastes, from other sources, during the closure process. This authorization may not be made if it i
l 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 j
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 Commission makes a final 4
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.
l 34 Y
y
'-pr-3
+y--,-
y,me-
. - -, - = -,
- c---+
eem--,q-,-
,---yw.-
,,y,e-ye we y,
.. w p.-y-w g.=--
,.,A,vmee-ww r
wv' vWe+Nr+n-**au'
+ s es*--m
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 day of
, 1993.
For the Nuclear Regulatory Commission.
Samuel J. Chilk, Secretary of the Commission.
i r
1 I
i 35 l
t
4 Reculatory Analysis Rule to Amend 10 CFR Part 40. Accendix A URANIUM MILL TAILINGS REGULATIONS; CONF 0PJilNG NRC REQUIREMENTS TO EPA STANDARDS 1.
Statement of the Probleg Criterion 6 of Appendix A to Part 40 requires the covering of mill tailings to control the release of radon to the atmosphere, but does not specifically require timeliness in placing the final radon barrier, nor a I
verification that the final radon barrier, as constructed, is effective in controlling radon emissions.
EPA has proposed revisions to 40 CFR Part 192, Subpart D (to which Appendix A is required to conform) to add such requirements in the case of uranium mill tailings impoundments.
i 2.
Ob.iectives i
)
The objectives of EPA's proposed rule in 40 CFR Part 192, Subpart D and this proposed conforming rule are: (1) to better assure that the health of the public is protected from potential releases from uranium mill tailings facilities by specifically requiring that the final radon barrier over the tailings be completed as expeditiously as practicable considering technological feasibility and that a verification be performed to demonstrate that the flux levels of radon have been adequately controlled by the final radon barrier as constructed, and (2) eliminate dual regulation by allowing 1
A 1
the rescission of EPA's Clean Air Act requirements for non-operational, 4
licensed uranium mill tailings facilities in 40 CFR Part 61, Subpart T.
b 4
t 3.
Alternatives l
The Commission is required by section 84a(2) of the Atomic Energy Act, as amended, to conform its regulations governing uranium mill tailings to 40 CFR Part 192, Subpart D.
The Commission has no alternative to rulemaking~
to conform to the changes made by EPA.
The only discretionary aspects are some details of implementation.
EPA, however, has included in their proposed revision to 40 CFR Part 192, Subpart D a considerable level of detail concerning implementation, even though its rule is a generally applicable i
standard. EPA took this approach in this particular case in order to be consistent with a settlement agreement which they reached with a number of parties who had challenged its Clean Air Act regulations in 40 CFR Part 61, 3
Subpart T or its stay of those regulations.
t The primary implementation detail that this proposed rule adds is a report of the results of the radon measurement (or other method of
+
verification of radon flux) to NRC and a retention pericd for records pertaining to this demonstration of radon flux levels of until license i
l termination. At license termination, in this case, the responsibility for'the site is transferred to a State or to 00E.
The Commission has considered alternative regulatory text and has attempted to conform substantively with EPA's proposed rule while reducing i
ambiguity in the wording to eliminate potential problems with implementation.
I 2
2 -
g
~
t 2
(
4.
Consecuences EPA's rules in 40 CFR Part 192, Subpart D and NRC's rules in Criterion 6 of 10 CFR Part 40, Appendix A contain a design standard for covers required to be placed over uranium mill tailings. This design standard is that the cover be designed to control radon emissions so that the levels will not exceed 20 picocuries per square meter per second (pCi/m's) and that the cover be effective in controlling radiological hazards for 1000 years, to the extent reasonably achievable, and, in any case, fc at least 200 years. This rule would provide a hicher degree of assurance that the public is protected from radon emissions from uranium mill tailings by adding a timeliness requirement to assure that the cover to control radon releases is completed as soon as is practicable and a raquirement for a verification that the flux levels after l
emplacement of the final radon barrier indeed meet the design standard.
The cost of an EPA measurement method (Method 115), which may be used for this verification, has been estimated in EPA's Background Information Document as $5,000-$6,000 per site, or as high as $10,000 if a contractor is used to perform the testing. Report preparation associated with this verification is estimated to cost $4410 and recordkeeping, $720.
Requiring recards to be kept until the responsibility for the site is transferred to government ownership is estimated to require essentially the same level of effort as the five years specified in 40 CFR Part 61, Subpart T, which this rule is basically intended to replace. The rule allows cther alternative methods of eerification if approved by the Commission as being at least as 1
effective as EPA's method 115.
The alternative of not specifying reporting or recordkeeping would not reduce the effort, since some form of documentation is clearly necessary to 3
l
t meet the requirement for verification of flux levels. This would only add uncertainty concerning how to meet this requirement.
Although a reclamation plan is specified in this proposed amendment, planning of reclamation activities and obtaining approval of these plans is i
required by existing regulations. These plans then become a condition of j
license. The difference resulting from this proposed rule would be the requirement that dates for the completion of certain reclamation activities be established as a condition of license.
For currently non-operational sites, this process has been taking place in the absence of this rule, also for the purpose of supporting the rescission of Subpart T of 40 CFR Part 61.
For most of these licensees, the establishment of these schedules in the license is complete.,hodment of the reclamation plans would constitute an amendment of 4
license in any case. However, the specific criteria in this proposed rule j
relating to the reasons for allowing extensions of time allowed for the completion of certain activities could make this process more complicated.
However, indirect consequences of this rule will result if EPA completes action as planned to rescind Subpart T of 40 CFR Part 61: an overall reduction in administrative effort, and potentially other costs of reclamation, with no reduction in the degree of protection of the public health or the environment.
If the stay of Subpart T expires without final action taking place on the rescission, all licensees with non-operational impoundments will have to negotiate agreements with EPA on the schedule of reclamation activities in addition to obtaining NRC approval of reclamation plans. Verification of radon levels after construction of final radon barriers will also be required but with reports to be made to EPA.
4
,m..,,q,.ge y, + ee n ww-* w a w r-w W"m
- ~~
I l
i 5.
Decision Rationalg i
~
j I
This proposed rule conforms with EPA's proposed rule as required by the i
Atomic Energy Act.
Revisions in EPA's final rule will have to be accommodated in the final version of this rule to the extent necessary to be in conformance. The Commission also considered the details of the settlement agreement in the development of this rule. The settlement agreement dealt l
with specifics that needed to be addressed in this rule. Although NRC was not I
a signatory to the settlement agreement, the Commission did agree in principle:
with it and agreed to abide by it consistent with applicable-law and available resources.
i 6)
Implementation a)
Schedule for Implementation j
The final rule will be effective 30 days after pAlication in the i
Federal Reaister.
b)
Relationship to Other Existing or Proposed Requirements As discussed above, this rule conforms to a rule proposed June 8, 1993 (58 FR 32174) by EPA to amend 40 CFR Part 192, Subpart D.
It also provides support to EPA's planned rescission of 40 CFR Part 61, Subpart T with respect to non-operational, licensed uranium tailings facilities.
)
5
i I
i i
~
l ENVIRONMENTAL ASSESSMENT AND FINDING OF NO SIGNIFICANT IMPACT l
AMENDMENT TO 10 CFR PART 40, APPENDIX A i
URANIUM MILL TAILINGS REGULATIONS; CONFORMING NRC REQUIREMENTS TO EPA STANDARDS i
The Nuclear Regulatory Commission is proposing to amend its regulations to add
)
l to the requirement to cover uranium mill tailings to control radon emissions a i
provision for timeliness in completing the cover and a one time verification that the cover is effective.
Environmental Assessment
)
Identification of Action I
Present Criterion 6 of Appendix A to Part 40 requires that uranium mill j
tailings be covered in order to control radon releases. This design standard J
specifies that the radon released will not exceed 20 picoeuries per square meter per second (pCi/m's) and that the cover is effective in controlling releases of radon for 1000 years, to the extent r:asonably achievable, and, in any case, for at least 200 years. This action would add to Criterion 6 a one time verification that the radon releases are, in fact, adequately controlled to meet the 20 pCi/m s standard for radon.
It would also add a Criterion 6A requiring timeliness in completing the cover (referred to as " final radon barrier"). These provisions are intended to conform NRC regulations governing uranium mill tailings to proposed revisions to 40 CFR Part 192, Subpart D of EPA's regulations.
1
Need for the Action Section 84a(2) of the Atomic Energy Act, as amended, requires the Commission to conform its rules governing mill tailings to EPA's generally applicable standards. The EPA has proposed revisions to its applicable general standard for uranium mill tailings (in 40 CFR Part 192, Subpart D).
In addition, the EPA has proposed rescinding its Clean Air Act requirements (in 40 CFR Part 61, Subpart T) pertaining to radon releases from non-operational, licensed uranium mill tailings impoundments, if it finds that the NRC program governing uranium mill tailings provide an ample margin of safety to the public.
The EPA has tentatively found that the NRC program would be adequate to allow rescission of 40 CFR Part 61, Subpart T, if NRC takes final action to conform its regulations in Part 40 to the amendments proposed to 40 CFR Part 192, Subpart D.
This would eliminate dual regulation in this area.
Environmental Impacts of the Action The primary impact of this rulemaking is to provide further assurance that releases of radon from disposed uranium mill tailings will be adequately controlled. Thus, it providas additional assurance that public health and the environment are adequately protected.
The proposed requirements for timeliness would not cause any change to the basic procedures or construction of the radon barrier.
The proposed rule would require all tailings reclamation activities to be addressed in a single document, the reclamation plan, so that planning for radon control is properly integrated with planning for other aspects of tailings reclamation. This is to assure that activities related to radon control do not adversely affect 2
.--y
,v.-i.
y
j 1
I l
l' other necessary reclamation activities. These proposed provisions would i
l assure that radon releases are reduced to the applicable allowable level for 1
disposed tailings in a timely manner.
This could potentially result in reductions to the total radon releases during closure.
The proposed requirement for verification of the effectiveness of the final l
radon barrier would likely involve a direct measurement of radon levels to assure that the barrier, as constructed, has met the design standard. The i
rule would specify that the verification take place as soon as reasonably achievable after emplacement of the final barrier and prior to placement of the erosion protection barriers or other features necessary for long-term control of the tailings. This is so that erosion protection features such as riprap would not need to be disturbed after emplacement in order to take radon j
measurements.
(Other methods of verification may be approved by the NRC in accordance with this proposed rule.)
Based on these considerations, this action will not result in a significant effect on the quality of the human environment.
Alternatives to the Action As required by Section 102(2)(E) of NEPA (42 U.S.C. 4322(2)(E)), possible
{
alternatives to the action have been considered. Because of the requirements of the Atomic Energy Act, as amended, to conform to EPA's generally applicable standards, the only alternatives to be considered by the Commission are with i
respect to some details of implementation.
3
- m, j
t I
As discussed above, the alternative of including planning for all reclamation l
activities in a single document for approval was chosen over the alternative of having a plan specified with only the minimum number of activities required to conform to E'A's proposed rule. This was considered more efficient and I
would assure that these activities are planned appropriately considering all of the necessary reclamation activities. Assuring that radon control i
activities do not adversely affect other aspects of reclamation should i
minimize the environmental impacts of tailings disposal.
f
)
The proposed rule would add details concerning reports and recordkeeping i
associated with the verification of radon levels.
In order to satisfy the requirement for verification of radon levels, documentation is essential.
It I
would be more efficient for the details of required documentation to be specified. The specifics of this requirement and the other minor details of I
implementation considered in this rule is not expected to have significant
(
impact on the environmental impact; of tailings disposal.
j i
Agencies and Persons Consulted Consultation has been made with the EPA staff involved with the development of the rule to which this rule is intended to conform. A draft proposed rule was i
i provided to the affected Agreement States (those licensing or having authority to license uranium mill tailings facilities) of Colorado, Texas, Washington and Illinois.
1 4
r---
-y-w u
--p.--.., -. -. - -.
w..-ww..--.-----f-.+.--.
,y,3,.y,c,,,.ww g.--w,,+,~wr---.,y--
,,,-,,,,,.=,_,w,,,ww-_-,,,.,g,-
9.%
, wm
,n,-
,-a,-,-,.-~,,yw-,
Finding of No Significant Impact The Commission has determined under the National Environmental Policy Act of 1959, as amended, and the Commission's regulations in 10 CFR Part 51, that this amendment to 10 CFR Part 40, Appendix A will not have a significant effect on the quality of the human environment and that an environmental impact statement is not required. This determination is based on the foregoing environmental assessment performed in accordance with the procedures and criteria in Part 51, " Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions."
l l
l l
l l
5
..w w,.
w.,
h DRAFT CONGRESSIONAL LETTER i
Dear Mr. Chairman:
In the near future, the Nuclear Regulatory Commist. ion (NRC) intends to send to the Office of the Federal Register for publication, the enclosed proposed amendment to the Commission's rules in 10 CFR Part 40. The amendment,.if.
adopted, would require uranium mill licensees to complete the required cover over non-operational tailings impoundments to control radon releases as expeditiously as practicable considering technological feasibility and to perform a one' time verification that the radon barrier, as constructed, is effective. This proposed rule would conform the Commission's regulations governing uranium mill tailings disposal to proposed amendments to the Environmental Protection Agency's (EPA's) general environmental standards in 40 CFR Part 192, Subpart D.
The ultimate intent of these revisions is to i
provide t'e ample margin of safety necessary.for the EPA to rescind its applicable National Emission Standard for Hazardous Air Pollutants (NESHAP's) in 40 CFR Part 61, Subpart T in accordance with section 112(d)(9) of.the Clean' i
Air Act and eliminate dual regulation of this category of licensees. This rulemaking is being conducted in accordance with a Memorandum of Understanding between NRC, EPA, and the Agreement States that regulate uranium mill tailings disposal on the Clean Air Act Standards in Subparts T and W of 40 CFR part 61 and a settlement agreement between EPA and litigants on Subpart T and its stay. The Commission is issuing the proposed rule for public comment.
Sincerely, Dennis K. Rathbun, Director Office of Congressional Affairs i
Enclosure:
I Federal Register Notice 1
i i
g
DRAFT PUBLIC ANN 0UNCEMENT NRC PROPOSES TO AMEND URANIUM MILL TAILINGS REGULATIONS TO CONFORM TO EPA STANDARDS l
The Nuclear Regulatory Commission is proposing to amend its regulations l
l governing the disposal of uranium mill tailings to conform them to proposed l
l amendments of the Environmental Protection Agency's generally-applicable standards, an action required by the Atomic Energy Act of 1954, as amended.
As proposed, the amendments would add, to existing requirements to cover uranium mill tailings to control the release of radon, a requirement for timeliness in completing the cover and a requirement to verify that the cover over the tailings is effective in controlling the release of radon.
The Environmental Protection Agency also has proposed rescinding similar requirements issued under the Clean Air Act if it finds that the NRC program in this area provides an ample margin of public safety. This would eliminate j
dual regulation of this group of licensees and provide adequate protection of
]
the public from releases of radon from uranium mill tailings piles.
l At present, the NRC requires:
l
-- that an earthen cover (or approved alternative cover) be placed over uranium mill tailings to control the release of radon-222 gases at the end of milling operations; and
-- that the earthen cover be designed to provide reasonable assurance that releases of radon will not exceed an average of 20 picocuries per square meter per second and that the barrier be effective in controlling redon releases for 1,000 years to the extent reasonably achievable and, in any case, for at least 200 years.
l 1
^
. -=.
e As proposed, the agency also would require:
-- that the emplacement of the earthen cover be carried out in 4
i accordance with a written, NRC-approved plan that includes enforceable dates for the completion of key reclamation milestone activities;
-- and that the plan must provide for the completion of the final radon barrier (and erosion protection features) as expeditiously as is practicable considering technological feasibility after the pile or impoundment ceases operation;
-- for specified non-operational uranium mill tailings impoundments, there would be a goal of completing the final radon barrier by December 31, 1997, and for all other impoundments, seven years after the date on which the impoundments cease operation.
Written comments on the proposed amendments to Part 40 of the Commission's regulations should be received by (date). They should be addressed to the Secretary of the Commission, Nuclear Regulatory Commission, Washington, D.C.
20555, Attention: Docketing and Service Branch.
2 I
_,,,.. _,., -.. _,. _,, - - _, - -